Kinsey v. Bray
| Decision Date | 27 July 1992 |
| Docket Number | No. 03A01-9110-CV-301,03A01-9110-CV-301 |
| Parties | Vontris Gay KINSEY, Appellant-Plaintiff, v. Linda Kay BRAY and Rex Kinsey, Appellees-Defendants. |
| Court | Indiana Appellate Court |
Richard R. Donnelly, Columbus, for appellant-plaintiff.
John A. Stroh, Sharpnack, Bigley, David & Rumple, Karon E. Perkins-Smith, Columbus, for appellees-defendants.
Vontris Gay Kinsey appeals from the grant of summary judgment in favor of her former husband, Rex Kinsey, in her suit which alleges he did not warn her of threats and did not protect her from harm from his girlfriend, Linda Kay Bray. On appeal, Vontris claims summary judgment was inappropriate because she was an invitee in Rex's residence and Rex owed her a duty to exercise reasonable care for her protection. She claims a genuine issue of material fact exists about whether Rex fulfilled that duty. We reverse.
The evidence most favorable to nonmovant Vontris reveals that she and Rex were in his residence when Linda arrived. Linda was upset and loud. She banged doors, broke a window, and threatened Vontris. Rex knew Linda had previously threatened Vontris with physical harm if she ever found Vontris present at Rex's residence. Linda had also been physically violent with Rex in the past. Rex had nevertheless invited both Vontris and Linda to his residence on the date in question. He did not, however, warn Vontris about Linda's previous threats. He also did not attempt to remove Linda or protect Vontris when Linda arrived. However, Rex had previously asked Linda not to physically confront Vontris because she had been in an automobile accident which had possibly left her more vulnerable to serious injury. Nevertheless, Linda attacked Vontris and caused her physical injury.
When this Court reviews a grant of summary judgment, it applies the same standard as that employed by the trial court. Robinson v. Kinnick (1989), Ind.App., 548 N.E.2d 1167, 1168, trans. denied. Summary judgment may be granted only if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. Ind.Trial Rule 56(C). This Court will reverse only if the record discloses an unresolved issue of fact or an incorrect application of the law to undisputed facts. Robinson, 548 N.E.2d at 1168.
Indiana courts have traditionally recognized that the existence of a common law negligence action requires judicial determination of a duty on the part of the defendant in relation to the plaintiff. Gariup Construction Co., Inc. v. Foster (1988), Ind., 519 N.E.2d 1224 (quoting Miller v. Griesel (1974), 261 Ind. 604, 308 N.E.2d 701). The question of whether a duty to exercise care arises is governed by the relationship of the parties and is an issue This initial question, whether the law will recognize a duty, is answered by a balance of three factors: the relationship between the parties, the reasonable foreseeability of harm to the person injured, and the concerns of public policy. Webb v. Jarvis (1991), Ind., 575 N.E.2d 992, 995. The relationship here is one between a possessor of land and social guests or invitees. As recently noted by this court, Indiana courts generally follow the principles set forth in the Restatement (Second) Torts Sec. 315 (1965):
of law within the province of the court. Douglass v. Irvin (1990), Ind., 549 N.E.2d 368, 369.
There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.
Bowling v. Popp (1989), Ind.App., 536 N.E.2d 511, 515 (). We must, therefore, examine the relations between Rex and Linda to determine whether the law will recognize a duty and require Rex to control Linda's conduct and also examine the relations between Rex and Vontris to determine whether the law will recognize a duty and require Rex to control Linda's conduct for Vontris' protection.
According to Comment (c) of Restatement (Second) Torts Sec. 315, one relation between the actor and a third person which requires the actor to control the third person's conduct is that of the duty of a possessor of land or chattels to control the conduct of his licensee, as provided in Restatement (Second) Torts Sec. 318 (1965). See Pursley for Benefit of Clark v. Ford Motor (1984), Ind.App., 462 N.E.2d 247, 250. Section 318 states:
If the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person so as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor
(a) knows or has reason to know that he has the ability to control the third person, and
(b) knows or should know of the necessity and opportunity for exercising such control.
Our supreme court has cited this section as generally helpful. Gariup, 519 N.E.2d at 1229.
Under the facts most favorable to the nonmovant, the law will recognize a duty and require Rex to control Linda's conduct. The relations between Rex and Linda were that of possessor of land and third person allowed to use the land, in that Rex invited Linda into the comfort and protection of his home. The trier of fact could conclude that Rex knew or had reason to know he could have controlled Linda, in that he could have ordered her to leave the premises. The trier of fact could also conclude that he knew or should have known he should take such action because of Linda's past threats and animosity aimed at Vontris and because of her past acts of violence. Also, this Section may apply here even though Indiana now identifies a social guest as an invitee rather than a licensee. See Burrell v. Meads (1991), Ind., 569 N.E.2d 637. This Section of the Restatement is not rendered inapplicable merely because Linda may now be identified as an invitee when formerly she would have been identified, as mentioned in the title to this Section, as a licensee. Regardless of status, the special relationship is, in reality, the same: that of possessor of land and social guest. The law recognizes a duty under the facts most favorable to Vontris; and the trier of fact could find, under the facts of this case, that Rex was bound by such a duty.
Further, one relation between the actor and the other, which requires the actor to The duty to protect the other against unreasonable risk of harm extends to risks arising out of the condition of the actor's land or chattels. Id. (Comment d). In Burrell, 569 N.E.2d 637, our supreme court turned "to the question whether social guests like Burrell should be added as a third type of invitee (in addition to the two categories recognized under Sec. 332)." Id. at 642-643. Section 332 defines persons who qualify as invitees as either public invitees or business visitors. The court concluded that a landowner should also exercise reasonable care for social guests, just as the landowner should for a business visitor. Inasmuch as the standard of care given the public invitee, the business invitee (visitor), and the social invitee (guest) is the same, we conclude that the law will recognize a duty on the part of a possessor of land to protect social invitees against unreasonable risk of physical harm from third persons. Also, the trier of fact could find, under the facts of this case, that Rex was bound by such a duty to Vontris.
control the conduct of a third person for the protection of the other, is the special relation giving rise to a duty to aid or protect under Restatement (Second) Torts Sec. 314A. See Comment (c) to Restatement (Second) Torts Sec. 315. See generally, Stephenson v. Ledbetter (1991), Ind.App., 575 N.E.2d 1035, 1038 (). For example, an innkeeper owes a duty to its guests to protect them against unreasonable risk of physical harm. Restatement (Second) Torts Sec. 314A(2). The same is true of the possessor of land who holds it open to the public. Restatement (Second) Torts Sec. 314A(3). The relations listed in this Section, however, are not intended to be exclusive and are not necessarily the only ones in which a duty of affirmative actions for the aid or protection of another may be found. Id. (Comment b).
Further, a similar relation between the actor and the other, which requires the actor to control the conduct of a third person for the protection of the other, is the duty on the part of a landowner to exercise reasonable care for the safety of social guests who come to the premises upon actual invitation or upon standing invitation. See Burrell, 569 N.E.2d at 643. Restatement (Second) of Torts Sec. 343 provides:
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 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.
A question arises, however, about whether a third person's presence...
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