Jump v. Bank of Versailles

• Decision Date: 11 February 1992
• Docket Number: No. 40A01-9101-CV-7,40A01-9101-CV-7
• Citation: 586 N.E.2d 873
• Parties: Judy JUMP, Appellant-Plaintiff, v. BANK OF VERSAILLES and its Successor, Peoples Trust Company, and Mabel F. Hunter, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 873

586 N.E.2d 873

Judy JUMP, Appellant-Plaintiff, v. BANK OF VERSAILLES and its Successor, Peoples Trust Company, and Mabel F. Hunter, Appellees-Defendants.

No. 40A01-9101-CV-7.

Court of Appeals of Indiana,

First District.

Feb. 11, 1992.

Merritt K. Alcorn, Eckert, Alcorn & Goering, Madison, for appellant-plaintiff.

Ernest W. Smith, Smith, Bartlett, Heeke & Carpenter, Jeffersonville, for Bank of Versailles and its Successor, Peoples Trust Co.

Peter G. Tamulonis, John B. Drummy, Kightlinger & Gray, Indianapolis, for Mabel F. Hunter.

STATEMENT OF THE CASE

RATLIFF, Chief Judge.

Judy Jump ("Jump") appeals from a summary judgment entered in favor of the Bank of Versailles and its Successor, Peoples Trust Company ("Bank"), and Mabel F. Hunter ("Hunter"), in an action for personal injury damages resulting from Jump's fall on ice. We affirm in part, reverse in part, and remand.

ISSUES

We restate the issues on appeal as:

1. Is Jump's status on the property in dispute an issue properly disposed of by summary judgment?

2. Did the trial court correctly characterize Jump's status upon entering the Bank's property in terms of premises liability?

3. Did the trial court correctly determine that Hunter owed Jump no duty since the accident occurred off of Hunter's "premises"?

FACTS ¹

The defendants' properties are located in the middle of a block on the west side of the courthouse square in Versailles. Bank's building is used as its main office, while Hunter's building is commercial in nature, housing several businesses which lease space in the building. The rear of both defendants' properties adjoins a public cross-alley. This cross-alley has existed for at least ten years. The extreme rear of both properties serves as a gravelled parking area, adjoining the cross-alley. Two sets of concrete steps lead from the parking area to the concrete pedestrian sidewalks below, which then funnel into the alleyway between the two buildings owned by Bank and Hunter. The alleyway extends from the parking area, traversing the distance of the defendants' properties, to the street on the courthouse square. Both sets of steps were constructed at the same time. The accident at issue in this dispute occurred on the northern set of steps.

The general public has used the alleyway extending from the cross-alley to the street running between the defendants' buildings for some time, although it is not a publicly dedicated alleyway. Historically, citizens have always passed across the property, using it as a passageway to the street. The alleyway, sidewalk, and northern set of steps have been maintained continuously throughout the relevant time period by Bank. This maintenance includes ice and snow removal. The Bank's policy includes having the first employee who arrives at the office shovel any accumulated snow and scatter "ice melt" on any icy portions of the sidewalk. Bank has not overtly discouraged anyone from using this walkway. Bank's main entrance is from the street Jump worked in the basement of Hunter's building for Telemon Resources, Inc. ("Telemon"), a tenant in Hunter's building. Jump routinely parked in the rear parking area and used either set of steps to enter the Hunter building. ² For several months, beginning in September of 1987, while construction was occurring on the rear of the Hunter building, Jump entered by the side door located on the north side of the Hunter building, directly abutting the alleyway separating the defendants' buildings. During this period, Jump regularly used the northern set of steps to reach the Hunter building. Jump had keys to both the Hunter building's back entrance, and the side entrance located between the Hunter building and Bank.

abutting the courthouse square at the end of the walkway in question, and customers usually only enter the Bank through this front entrance.

On March 4, 1988, an ice storm occurred in the area sometime before 6:00 a.m. and driving conditions were hazardous. Jump arrived for work at approximately 8:15 a.m. None of the Bank's employees had arrived yet. When Jump arrived for work that morning, she parked her vehicle close to the northern set of steps. Jump noticed that the parking lot was icy, and also that the railing by the steps was icy. However, she had observed a co-worker safely traverse the southern steps. Jump attempted to descend the northern steps, but slipped on the ice and fell down the steps. Jump was severely and permanently injured as a result of this fall.

Up to and including the time of Jump's fall, the property line between the Hunter and Bank buildings was not precisely known by the defendants. Both defendants treated the walkway between the buildings as common property between them. James Mitchell ("Mitchell"), the manager of Hunter's property, admitted that the precise line of demarcation between the Hunter and Bank properties was basically unknown at the time of Jump's accident. Following Jump's accident, however, a survey was conducted and it was discovered that Bank owned not only the steps where the accident occurred, but also the entire width of alleyway separating the defendants' buildings. ³

DISCUSSION AND DECISION

Issue One

On appeal, we use the same standard as the trial court in evaluating the propriety of summary judgment. Jackson v. Warrum (1989), Ind.App., 535 N.E.2d 1207, 1210. Summary judgment is appropriate only if no material issue of fact exists and the movant is entitled to judgment as a matter of law. Ind.Trial Rule 56(C). The movant bears the burden of proving the propriety of summary judgment, and all facts and inferences to be drawn therefrom are viewed favorably to the non-movant. Jackson, 535 N.E.2d at 1210. Summary judgment will be affirmed on appeal if it is sustainable on any theory or basis found in the record. Wingett v. Teledyne Industries, Inc. (1985), Ind., 479 N.E.2d 51, 54.

Summary judgment should not be used as an abbreviated trial and is rarely appropriate in negligence actions; issues of negligence, contributory negligence, causation, and reasonable care are most appropriately left for a determination by the trier of fact. Jackson, 535 N.E.2d at 1210-1211. However, the question of whether one is an invitee or a licensee is a matter of law. Wingett, 479 N.E.2d at 54. Like issues of duty, such an issue is a question of law for the court; thus, the question of Jump's status may have been proper for summary judgment proceedings. See Robinson v. Kinnick (1989), Ind.App., 548 We therefore initially dispose of Jump's contention that the issue of her status on the defendants' land was improperly resolved by summary judgment. However, because no factual dispute exists, the only issue properly disposed of by summary judgment in the case at bar is the duty owed to Jump involving her status on the defendants' land. The remaining issues to be resolved to warrant a finding of negligence, that is, the extent of duty owed, and whether a breach of such duty occurred, proximately causing Jump's injuries, are for the jury. See Issues Two and Three; Markle v. Hacienda Mexican Restaurant (1991), Ind.App., 570 N.E.2d 969, 975, n. 2. We therefore limit our holding to the determination that there was or was not a duty owed to Jump by the defendants under the undisputed facts of this case.

                N.E.2d 1167, 1168, trans. denied.   The record shows that the facts of the incident are not in dispute;  rather, the parties disagree regarding the application of the law to the facts.  The core issue is whether, as a matter of law, the defendants owed Jump a duty when she fell
                

Issue Two

The crux of this dispute involves Jump's status on the concrete steps on which her accident occurred, and the resulting standard of care imposed on the defendants. Jump argues that the trial court improperly characterized her as a "licensee" at the time of her fall. Bank asserts that the trial court's ruling on Jump's status on its property was correct. We find that Jump was an "invitee" in relation to Bank when her accident occurred, and thus reverse summary judgment for Bank, and remand to the trial court for entry of summary judgment in Jump's favor on this issue. ⁴

Indiana case law outlines the duties landowners owe to each of three status groups. Burrell v. Meads (1991), Ind., 569 N.E.2d 637, 639. First, a landowner owes a trespasser the duty to refrain from willfully, wantonly, or intentionally injuring him after discovering his presence. Id. Second, a landowner owes a licensee the duty to refrain from willfully or wantonly injuring him or acting in a manner to increase his peril. Id. The landowner also has a duty to warn a licensee of any latent danger on the premises of which the landowner has knowledge. Id. Finally, a landowner owes the highest duty to an invitee: a duty to exercise reasonable care for his protection while he is on the landowner's premises. Id. This duty is defined in the Restatement (Second) of Torts Sec. 343 (1965):

"A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger."

Our supreme court resolved much confusion in the area of premises liability in the recent case of Burrell v. Meads (1991), Ind., 569 N.E.2d 637. Burrell involved a social host's liability. The court held that social guests are invitees, and thus are entitled to a duty of reasonable care from landowners, as defined above in Restatement (Second) of Torts, Sec. 343. Id. at 643. Burrell, in addition to determining a social guest's status in terms of premises liability, synthesized precursor case law on this issue, and...