Harris v. Traini
| Decision Date | 21 November 2001 |
| Docket Number | No. 89A04-0012-CV-515.,89A04-0012-CV-515. |
| Citation | 759 N.E.2d 215 |
| Parties | Naomi HARRIS, Appellant-Plaintiff, v. Patrick TRAINI, Kay Traini, Michael Traini and Quakertown Marina, Inc., Appellees-Defendants. |
| Court | Indiana Appellate Court |
D. Bruce Kehoe, Ralph E. Dowling, William E. Lukens, Wilson, Kehoe & Winingham, Indianapolis, IN, Attorneys for Appellant.
Thomas M. Weinland, Ronald W. Frazier, Frazier & Associates, Indianapolis, IN, Ryan Duffin, Robert W. Hash, Jennings Taylor Wheeler & Bouwkamp, Carmel, IN, Attorneys for Appellees.
Naomi Harris appeals the trial court's entry of summary judgment in favor of Patrick Traini, Kay Traini (collectively "the Trainis"), Michael Traini ("Michael"), and Quakertown Marina, Inc. ("Quakertown"), on her negligence claims. Harris presents several issues for our review which we consolidate and restate as:
1. Whether an intervening cause immunized Michael from liability.
2. Whether genuine issues of material fact preclude summary judgment for the defendants.
We affirm in part, reverse in part, and remand for further proceedings.1
On June 25, 1996, the Trainis gave Michael, their seventeen-year-old son, permission to have friends visit the Trainis' houseboat, which was moored on Brookville Reservoir. Despite their knowledge that Michael had previously been arrested for possession of marijuana,2 the Trainis did not supervise or otherwise monitor Michael and his friends' use of the boat. That afternoon, Ron Anderson, a twenty-one-year-old acquaintance of Michael's, brought Jessica Legear, Harris' seventeen-year-old daughter, Nathan Marling, and two other minors to the Trainis' boat to see if Michael was there. Although Michael did not know Anderson's friends, he invited everyone on board the boat, where alcohol and marijuana were already present.3 Marling observed Michael and the others consume alcohol and marijuana while on the boat that day.
Later in the afternoon, Legear and Marling were sitting together at the back of the boat. Legear was talking about jumping into the water, and Marling pushed her in. Marling was "playing around" when he pushed Legear. Legear had not told anyone that she was unable to swim, and she drowned before anyone could pull her out of the water. A juvenile court entered a true finding of reckless homicide against Marling in Legear's death.
As members of the Quakertown Marina, the Trainis, including Michael, were allowed to take a shuttle operated by Quakertown to reach their boat, and the Quakertown shuttle likewise transported the Trainis' guests from the marina to the Trainis' boat. On the date of Legear's death, the Quakertown shuttle took Legear and her friends to the Trainis' boat. Anderson, however, returned to the marina to retrieve alcohol, which he then transported to the Trainis' boat via the Quakertown shuttle.
Harris filed a complaint, alleging that the Trainis, Michael, and Quakertown were each negligent in causing Legear's death. Each defendant moved for summary judgment, which the trial court granted following a hearing. Harris now appeals.
In determining the propriety of summary judgment, we apply the same standard as the trial court. Jesse v. American Cmty. Mut. Ins. Co., 725 N.E.2d 420, 423 (Ind.Ct.App.2000), trans. denied. We construe all facts and reasonable inferences to be drawn from those facts in favor of the non-moving party. Id. Summary judgment is appropriate when the designated evidence demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). The purpose of summary judgment is to terminate litigation about which there can be no material factual dispute and which can be resolved as a matter of law. Zawistoski v. Gene B. Glick Co., Inc. 727 N.E.2d 790, 792 (Ind.Ct.App.2000).
We note that the trial court made findings and conclusions in support of its summary judgment entries. Although we are not bound by the trial court's findings and conclusions, they aid our review by providing reasons for the trial court's decision. See Ledbetter v. Ball Mem'l Hosp., 724 N.E.2d 1113, 1116 (Ind.Ct.App.2000), trans. denied. If the trial court's summary judgment can be sustained on any theory or basis in the record, we must affirm. Id.
Harris contends that the trial court erred when it found, as a matter of law, that Marling's conduct "[broke] any causal connection" between Michael's alleged negligence and Legear's death. Brief of Appellant at 51. Under common law, independent intervening conduct precludes the original wrongdoer's liability when the later conduct constitutes a cause interrupting the natural sequence of events, turning aside their course, preventing the natural and probable result of the original act or omission, and producing a result that could not have been reasonably anticipated. L.K.I. Holdings, Inc. v. Tyner, 658 N.E.2d 111, 119 (Ind.Ct.App.1995), trans. denied. Intervening cause, therefore, acknowledges a defendant's negligence, yet absolves the defendant of liability when the negligence is deemed remote. Id.
This court has previously concluded that the adoption of comparative negligence, with its apportionment of fault, renders the protection of a remote actor unnecessary. See id. In other words, the comparison of fault inherent in the doctrine of intervening cause has been incorporated into our comparative fault system. See id. at 120. Here, if Marling's conduct was a proximate cause of Legear's death, that does not immunize the defendants from liability for damages proximately caused by their negligence. See id. Rather, Marling's conduct triggers the apportionment principles of comparative fault, and the foreseeability of his negligence is simply a matter for the fact finder to consider in allocating fault. See id. Accordingly, we conclude that the trial court erred when it found that Marling's conduct was an intervening cause which absolved Michael of liability for Legear's death.4
Harris contends that the trial court erred when it entered summary judgment in favor of Michael and the Trainis. Specifically, she maintains that Legear was an invitee of Michael and the Trainis and that questions of fact exist regarding whether they breached the duty of care owed to Legear. Michael and the Trainis respond that they owed no duty to protect Legear from Marling's unforeseeable criminal act.5
We note that Michael and the Trainis invoked the law of premises liability in support of their summary judgment motions.6 For the first time on appeal, they contend that this case "is not appropriately analyzed under premises liability law" because they are not landowners with respect to the houseboat, and Legear's death did not occur on land. Brief of Appellees Patrick, Kay and Michael Traini at 10. It is axiomatic that a party may not raise an issue on appeal which was not first presented to the trial court. See Mitchell v. Stevenson, 677 N.E.2d 551, 558 (Ind.Ct.App.1997),trans. denied. Accordingly, the issue is waived. Waiver notwithstanding, we find that premises liability principles apply to the facts of this case. The incident occurred on a large houseboat equipped with a kitchen and bathroom. Indeed, the Trainis "used the houseboat as a weekend getaway." We see no reason to distinguish the Trainis' houseboat from a residence located on land. See, e.g., Frasca v. Prudential-Grace Lines, Inc., 394 F.Supp. 1092, 1100 (D.C.Md.1975) ().
The tort of negligence is comprised of three elements: 1) a duty on the part of the defendant in relation to the plaintiff; 2) a failure by the defendant to conform its conduct to the requisite standard of care; and 3) an injury to the plaintiff proximately caused by the failure. Estate of Pflanz v. Davis, 678 N.E.2d 1148, 1151 (Ind.Ct.App.1997). In the absence of the existence of a duty, there can be no negligence. Id.
The law is well-established that a person entering upon the land of another comes upon the land either as an invitee, licensee or trespasser. Id. The person's status on the land defines the nature of the duty owed by the landowner to the visitor. Id. Accordingly, the first step in resolving a premises liability case is to determine the plaintiff's visitor status. Id. The visitor status then defines the duty owed from the landowner to the visitor. Id.
Here, on appeal, the parties dispute whether Legear was a licensee or invitee. During the summary judgment hearing, however, the Trainis' counsel stated as follows:
[w]hen you walk onto someone's land or someone's boat you without question become a social guest. There's not any controversy in this case as to whether [Legear] was a social guest on the date of the incident.
Our supreme court has expressly held that social guests are invitees. See Burrell v. Meads, 569 N.E.2d 637, 643 (Ind.1991). And the Trainis' counsel's concession on this issue at the summary judgment hearing is binding on the Trainis. See Lystarczyk v. Smits, 435 N.E.2d 1011, 1014 (Ind. Ct.App.1982). Accordingly, it is undisputed that Legear was a social guest, or invitee, on the Trainis' houseboat at the time of her death.7
A landowner owes the highest duty of care to an invitee; that is the duty to exercise reasonable care for his protection while he is on the landowner's property.8 Dunifon v. Iovino, 665 N.E.2d 51, 56 (Ind.Ct.App.1996) (citing Burrell v. Meads, 569 N.E.2d at 639), trans. denied. Our supreme court has adopted the Restatement's definition of this duty:
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