Harper v. Kampschaefer, 22A04-8902-CV-41

• Decision Date: 12 February 1990
• Docket Number: No. 22A04-8902-CV-41,22A04-8902-CV-41
• Citation: 549 N.E.2d 1067
• Parties: May HARPER, as Administratrix of the Estate of James Leslie Harper, deceased, Appellant (Plaintiff Below), v. Charles KAMPSCHAEFER and Mary Kampschaefer, Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 1067

549 N.E.2d 1067

May HARPER, as Administratrix of the Estate of James Leslie

Harper, deceased, Appellant (Plaintiff Below), v. Charles KAMPSCHAEFER and Mary Kampschaefer, Appellees

(Defendants Below).

No. 22A04-8902-CV-41.

Court of Appeals of Indiana,

Fourth District.

Feb. 12, 1990.

Cynthia L. Winkler and Gordon D. Ingle, Winkler, Fifer & Ingle, New Albany, for appellant.

James E. Bourne, Wyatt, Tarrant, Combs & Orbison, New Albany, for appellees.

CHEZEM, Presiding Judge.

Case Summary

Plaintiff-Appellant, Harper, appeals the entry of summary judgment in favor of the Defendants-Appellees, Kampschaefers on a complaint for the wrongful death of James Leslie Harper ("the decedent"). We reverse.

Issue

Harper raises two (2) issues, which we restate as one:

Whether there was a genuine issue of material fact which precluded the entry of summary judgment.

Facts

Sometime in early 1985, Charles Kampschaefer strung a 3/8" cable across a wooded path between two trees. The cable was wrapped around the trees and clamped. The evidence is unclear as to exactly where on the path the cable was. Apparently, the cable was located somewhere near the entrance of the path, but not at the entrance itself. Mr. Kampschaefer placed the cable across the path to prevent people with motorcycles and four wheel drives from trespassing on the property.

On August 25, 1985, the decedent, and three other friends, were riding on two (2) four-wheel all-terrain vehicles ("ATV's") in Kampschaefer's field. The group had been attending a farewell party for a friend and at some point during the party left to ride the ATV's. The decedent was driving one of the ATV's and Brian Fulkerson sat behind him. They were accompanied by David Speth and Vanessa Hublard, who rode the second ATV. The foursome rode the ATV's for some time and then stopped in a field which was adjacent to the Kampschaefer property. The group decided to return by way of the path that went across the Kampschaefer property, so they could return by way of a road rather than travel through the woods, since it was dark. The decedent asked the others if they remembered where the cable was located; no one could recall.

The decedent led the group to the path where the cable was located. The decedent and Fulkerson went down an incline on the path and were unable to stop before the cable caught the decedent by the neck. He was dead at the scene as a result of the injury. A test performed on the decedent's body indicated that his blood had a blood alcohol content of .15%.

Harper filed an action for wrongful death in the Floyd Circuit Court against the Kampschaefers. On June 30, 1988, the Kampschaefers filed a motion for summary judgment. The depositions of Brian Fulkerson, Vanessa Hublard, David Speth, Mary Kampschaefer, Charles Kampschaefer and Lisa Barton were filed and ordered published by the trial court. However, the depositions remained sealed and were opened by the clerk in the preparation of the record in this case; thus, the depositions may not have been viewed by the trial court. ¹ Affidavits were also filed with the court. On September 13, 1988, the trial court granted the Kampschaefers' motion and entered judgment in their favor.

Discussion and Decision

When reviewing an entry of summary judgment, the standard of review is the same as it was for the trial court: whether there was no genuine issue of material fact and whether the moving party was entitled to judgment as a matter of law. We stand in the position of the trial court and consider the same matters. A fact is material for summary judgment purposes if it helps prove or disprove an essential element of the plaintiff's cause of action. Graves v. Summit Bank (1989), Ind.App., 541 N.E.2d 974. The movant bears the burden of establishing the propriety of summary judgment, and all facts, and inferences drawn from those facts, must be viewed in the light most favorable to the non-moving party. Jackson v. Warrum (1989), Ind.App., 535 N.E.2d 1207.

Both parties concede that Harper's decedent was either a trespasser or a licensee; thus, the Kampschaefers only owed Harper's decedent a duty to refrain from wantonly or willfully injuring him while he was on the Kampschaefers' property. Gaboury v. Ireland Road Grace Brethren, Inc. (1983), 446 N.E.2d 1310. Harper claims genuine issues of material fact existed in determining whether the Kampschaefers' actions were wanton and willful. Harper cites three (3) tests which have been established to determine whether a defendant has breached such a duty:

(1) The positive wrongful act test--Woodruff, Administratrix v. Bowen (1893), 136 Ind. 431, 34 N.E. 1113;

(2) The willful or wanton misconduct test--Lingenfelter v. Baltimore, Ry. Co. (1900), 154 Ind. 49, 55 N.E. 1021; and

(3) The entrapment-affirmative control of the instrument test--Pier v. Schultz (1962), 243 Ind. 200, 182 N.E.2d 255.

Harper concedes that the positive wrongful act test does not apply; she argues that there were genuine issues of material fact as to the application of the other two tests, which would preclude the entry of summary judgment.

A

The entrapment-affirmative control test requires that the alleged tortfeasor: (1) created a trap; and (2) had affirmative control of the instrumentality which created the trap. See Pier v. Schultz, 243 Ind. at 204, 182 N.E.2d at 257; Kidd v. Davis (1985), 485 N.E.2d 156, 159. A trap is a hazard which is concealed and not discernible by the use of reasonable care. Kidd at 159. Thus, entrapment does not occur when the trespasser has full knowledge of the circumstances and the condition of the premises. Id.

Here, the evidence demonstrated that the decedent knew of the existence of the cable on the premises. Therefore, the plaintiff cannot claim that her decedent was "entrapped" by the Kampschaefers. ²

B

The willful or wanton misconduct test establishes liability when a defendant exhibits conduct which is so grossly deviant from everyday standards that the licensee or trespasser cannot be expected to anticipate it. Swanson v. Shroat (1976), 169 Ind.App. 80, 345 N.E.2d 872.

The Kampschaefers argue that the decision of our supreme court in Gaboury v. Ireland Road Grace Brethren, Inc. and the decision of our first district in French v. Sunburst Properties, Inc. (1988), Ind.App., 521 N.E.2d 1355 are controlling in this case and the Kampschaefers are entitled to judgment as a matter of law. In Gaboury, the plaintiff was injured when his motorcycle struck a cable which had been stretched across a driveway leading to the defendant church's parking lot. The Supreme Court determined, as a matter of law, the church's act of closing the parking lot by stretching a cable across the driveway was not willful or wanton. Gaboury at 1315. In French, the plaintiff was injured when he tripped over a cable barricade which was erected across the entrance to an apartment complex parking lot. The First District of this court held that the defendant apartment complex was not liable since, as a matter of law, the erection of the barricade did not constitute willful or wanton misconduct toward the plaintiff. French at 1357.

Here, neither Gaboury, nor French, are dispositive. The cable used in this case was stretched across a wooded path. In Gaboury and French the cable was discernible with reasonable diligence since they were stretched over open areas adjacent to public streets. The issue of whether the cable was placed on the path with willful or wanton intent is a genuine issue of material fact for the jury.

In Stewart v. Stewart (1987), Ind.App., 506 N.E.2d 1132, our third district directed entry of summary judgment where there had been no allegation that the defendant had willfully or wantonly positioned a cord such as to injure the plaintiff. Here, Harper has alleged in her complaint that the Kampschaefers acted with a willful and malicious intent in stringing the cable across the path.

Charles Kampschaefer testified that he strung the cable across the path in response to motorcycle riders and drivers of four-wheel drive vehicles being on the property; the cable was placed on the path after at least two confrontations with drivers of such vehicles. Deposition of Charles Kampschaefer at 18-22; Record at 123a. There was also conflicting evidence as to whether there were any markings to warn of the presence of the cable. ³ There were no "no trespassing" signs facing the direction from which the decedent approached the cable. Thus, an inference may be drawn that Mr. Kampschaefer placed the cable there with a willful or wanton intent, which is sufficient to create a genuine issue of material fact for trial.

Furthermore, in Surratt v. Petrol, Inc. (1974), 160 Ind.App. 479, 312 N.E.2d 487, reh. denied, 160 Ind.App. 479, 316 N.E.2d 453, this court adopted the position of the Restatement (Second), Torts, section 336 (1965), which reads as follows:

A possessor of land who knows or has reason to know of the presence of another who is trespassing on the land is subject to liability for physical harm thereafter caused to the trespasser by the possessor's failure to carry on his activities upon the land with reasonable care for the trespasser's safety.

Id. (emphasis added).

Thus, this court announced in Surratt that a landowner owes no duty to lookout for a trespasser, but once a trespasser has been discovered, the...