Joseph v. Calvary Baptist Church

• Decision Date: 26 November 1986
• Docket Number: No. 27A04-8602-CV-37,27A04-8602-CV-37
• Citation: 500 N.E.2d 250
• Parties: James O. JOSEPH, Appellant, v. CALVARY BAPTIST CHURCH, Appellee.
• Court: Indiana Appellate Court

Page 250

500 N.E.2d 250

James O. JOSEPH, Appellant, v. CALVARY BAPTIST CHURCH, Appellee.

No. 27A04-8602-CV-37.

Court of Appeals of Indiana Fourth District.

Nov. 26, 1986.

Manuel P. Guerrero, Marion, for appellant.

Albert C. Harker, Kiley, Osborn, Brown, Kiley, Harker & Rogers, Marion, for appellee.

MILLER, Judge.

James Joseph, a member of Calvary Baptist Church (Church), was injured while voluntarily repairing the Church roof when a ladder he was descending fell, allegedly because one of his fellow church members set up the ladder negligently. Joseph brought suit against the Church, on the theory that the Church was liable for the negligent actions of its agent. The Church moved for summary judgment, which the trial court granted. The court held the Church owed no duty of care because Joseph was a church member volunteering his services. The court further held that, even if the Church did owe Joseph a duty of care, the duty owed him was merely to refrain from willfully or wantonly injuring him, since the court found him to be a licensee.

The court committed legal error in granting summary judgment in favor of the Church. Accordingly, we reverse.

FACTS

On July 7, 1982, James Joseph, a deacon of the Calvary Baptist Church, and several other members of the church, were helping to repair the roof of the church. The roof was divided into an upper and lower portion; Joseph was working on the lower portion with Willie Wofford. Another church member, Al Green, was responsible for keeping the roofers supplied with shingles. He moved the ladder the roofers used to ascend to the roof periodically so he could deliver shingles to whichever workers needed them. The last time he moved the ladder he thought it felt uncomfortable when he set it up.

After the men worked for some time, they ran short of materials. They agreed to take a break and then bring up more roofing material. Joseph stepped onto the ladder and it began to fall. Wofford tried to grab Joseph but missed him, and Joseph fell onto a concrete sidewalk. Joseph broke his heel and suffered possible internal injuries as a result of the fall.

The church leadership had requested the aid of Joseph and the other volunteers in order to save money on the repair project. The Church agreed to purchase the roofing materials if the men of the Church would volunteer the labor. Joseph and the others agreed and volunteered their services.

DECISION and

Issue I

Liability of Unincorporated Associations to their Members

The trial court erred in holding Joseph was precluded from recovering because he was a member of the Church. Calvary Baptist Church is, like many churches, an unincorporated association. In the majority of our sister jurisdictions, members of an unincorporated association cannot sue the association for tortious actions. See generally 7 C.J.S. Associations Sec. 51 and cases cited therein. This rule is based on the theory that the actions of the association are to be attributed to each of its members. Since the member could not sue himself for negligence, he cannot sue the association for negligence attributed to him. DeVillars v. Hessler (1950), 363 Pa. 498, 70 A.2d 333; see Annot., 14 A.L.R.2d 473 (1950). This rule is by no means universally applied. See e.g. Marshall v. International Longshoremen's Union (1962), 57 Cal.2d 781, 22 Cal.Rptr. 211, 371 P.2d 987, 7 C.J.S., supra.

In Indiana, we have rejected the majority rule. In O'Bryant v. Veterans of Foreign Wars (1978), 176 Ind.App. 509, 376 N.E.2d 521, the second district specifically held an association to be amenable to suit by its members. The court based its decision upon Ind.Rules of Procedure, Trial Rules 17(B) and (E), which read:

"17(B) Capacity to sue or be sued. The capacity of a party to sue or be sued shall be determined by the law of this state, including its conflict rules, except that a partnership or unincorporated association may sue or be sued in its common name.

17(E) Partnerships and unincorporated associations. A partnership or an unincorporated association may sue or be sued in its common name. A judgment by or against the partnership or unincorporated association "shall bind the organization" as if it were an entity. A money judgment against the partnership or unincorporated association shall not bind an individual partner or member unless he is named as a party or as a member of a class in an appropriate action (Rules 23 and 23.2)." (emphasis added)

The O'Bryant court reasoned that T.R. 17(B) and T.R. 17(E) disavowed the common law view that the actions of an association were to be attributed to each of its members, since the rules provided suit could be initiated by or against the association in its own name, and not in the name of each of the members. The court further reasoned that, since the actions of the association were no longer to be attributed to each individual member, the members could sue the association.

The Church argues O'Bryant was decided incorrectly. In the Church's opinion, the O'Bryant court confused substantive and procedural law in deciding the case. Our reading of O'Bryant leads us to conclude the Church is mistaken.

Judge White noted T.R. 17(B) and T.R. 17(E) were adopted by the 1969 session of the General Assembly and published as Acts of 1969, chapter 191, sec. 1, pp. 584-585. These rules were later adopted without change by order of the Indiana Supreme Court dated July 29, 1969 and effective January 1, 1970. Since the rules were enacted not only by our supreme court, but also by our legislature, Judge White held they are both procedural and substantive rules of law. We agree with Judge White's analysis, and we see no reason to disavow O'Bryant.

The Church argues that, even if most unincorporated associations are amenable to suit by their members in Indiana, religious societies should not be. In support of this contention, the Church cites Goard v. Branscom (1972), 15 N.C.App. 34, 189 S.E.2d 667, cert. denied, 281 N.C. 756, 191 S.E.2d 354. In Goard, the North Carolina Court of Appeals affirmed a summary judgment in favor of a church in a negligence action filed by one of the members of the church. The court held that, while a stockholder could sue his corporation for negligence in North Carolina, a church member could not sue his church for negligence because a church is a quasi corporation in that state.

Our reading of Goard convinces us that it conveys no protection to churches which is not available to quasi corporations generally in North Carolina. The court stated the reason churches could not be sued by their members was because, "a member of such a quasi corporation is engaged in a joint enterprise and may not recover from the quasi corporation damages sustained through the tortious conduct of another member thereof." Id., at 189 S.E.2d 670. It is clear Goard does no more than state the majority rule that members may not sue unincorporated associations or quasi corporations; it does not establish any special protection for religious societies or churches.

Goard offers no justification for treating churches and religious societies differently than we treat other unincorporated associations; we can see no good reason to do so. We therefore decline the invitation to create an exception to Indiana's general rule governing liability of unincorporated associations, and we hold that churches are amenable to suit by their members to the same extent as are all other unincorporated associations in this state.

Issue II

Joseph's Status: Licensee or Invitee?

The trial court gave a second reason for granting summary judgment in favor of the church. In the court's opinion, summary judgment was appropriate even if the Church was amenable to suit because Joseph was a mere licensee, and the Church was not liable for merely negligent conduct toward him. The trial court erred in reaching this conclusion.

A motion for summary judgment is not to be granted lightly, since the granting of the motion cuts off the right of the losing party to fully litigate the claim. Summary judgment is not meant to be a means of circumventing jury trials, nor is it meant to be a means of allowing the trial judge to decide where the preponderance of the evidence lies before the evidence has been fully presented. Ind.Rules of Procedure, Trial Rule 56; Letson v. Lowmaster (1976), 168 Ind.App. 159, 341 N.E.2d 785. Summary judgment is properly granted only where there are no conflicts as to any material fact, Letson, supra, and where there is no conflict as to any material inference which could reasonably be drawn from the facts. Woznicka v. McKean (1969), 144 Ind.App. 471, 247 N.E.2d 215. When reviewing a summary judgment, we take all allegations of the non-moving party's affidavit as true, and we liberally construe depositions, admissions, answers to interrogatories, and testimony in favor of the non-moving party. Swanson v. Shroat (1976), 169 Ind.App. 80, 345 N.E.2d 872; Podgorny v. Great Central Insurance Co. (1974), 160 Ind.App. 244, 311 N.E.2d 640.

In this case, Joseph's right to recover from the Church depends upon his status at the time he was injured. Gaboury v. Ireland Road Grace Bretheren, Inc. (1983), Ind., 446 N.E.2d 1310. In Indiana, any person on the land of another falls into one of three traditional common law categories; he is a trespasser, a licensee, or an invitee. Barbre v. Indianapolis Water Co. (1980), Ind.App., 400 N.E.2d 1142. Neither party suggests Joseph was a trespasser; he claims he was an invitee and the church claims he was a licensee. If Joseph was an invitee, he would only have to plead and prove the negligence of the church or one of its agents caused his injury to recover. If he was a licensee he would have to plead and prove wanton or willfull conduct on the part of the church caused his injury to recover.

Under our law, an invitee is one who is on the property of another for the economic benefit of the owner or for the economic benefit...