Kopczynski v. Barger
| Decision Date | 04 June 2008 |
| Docket Number | No. 88S05-0710-CV-423.,88S05-0710-CV-423. |
| Citation | 887 N.E.2d 928 |
| Parties | Beth Palmer KOPCZYNSKI, Individually and as next friend and Parent of Alisha Palmer and Alisha Palmer, Appellants (Plaintiffs below), v. David Bryan BARGER and Peggy Lucas Barger, Appellees (Defendants below). |
| Court | Indiana Supreme Court |
Daniel L. Brown, Salem, IN, Attorney for Appellants.
Thomas E. Scifres, Salem, IN, Attorney for Appellees.
On Petition to Transfer from the Indiana Court of Appeals, No. 88A05-0612-CV-703
This case presents two issues of first impression. We hold that under some circumstances a minor's invitation to enter the premises may bind the landowner for purposes of premises liability, and that a trampoline may constitute an attractive nuisance. In this case both issues turn on facts not appropriately resolved on summary judgment.
On January 30, 2002, twelve-year-old Alisha Palmer was at home after school with her brothers, Dylan, nine, and Michael, ten. Her mother, Beth Palmer Kopczynski, was still at work. Next door, six-year-old Bryan Barger was jumping on the Bargers' trampoline in an unenclosed area behind the Bargers' house. Bryan was jumping without supervision, which was not unusual.
At some point that afternoon, Bryan asked Dylan to jump with him, and Michael Spears, another neighbor, aged thirteen or fourteen, also joined them. Alisha testified that she also started using the trampoline a short time later, after Bryan "asked me if I wanted to jump with him." The parties agree that Bryan's invitations to Alisha and her brother were the first communications between the Palmers and the Bargers.
Alisha had previously watched Bryan jump, but she had never been on a trampoline before. As she was jumping, someone "stole" her jump, i.e., landed and changed the tension and height of the surface just before she landed. As a result, she injured her knee.
Alisha and her mother filed a complaint for damages against the Bargers, alleging both premises liability and liability for an attractive nuisance. The Bargers moved for summary judgment, claiming that Alisha was a trespasser and that the attractive nuisance doctrine did not apply. The trial court granted summary judgment in favor of the Bargers.
The Court of Appeals affirmed, finding no premises liability because Alisha was a trespasser and there was no evidence of willful or wanton conduct on the part of the Bargers. Kopczynski v. Barger, 870 N.E.2d 1, 9 (Ind.Ct.App.2007). The Court of Appeals also found that the attractive nuisance doctrine did not apply because the plaintiffs failed to establish either that the trampoline was particularly dangerous or attractive to children or that the Bargers knew that children would trespass and be injured on the trampoline. Id. at 10. Judge Crone dissented, concluding that material issues of fact remained as to both Alisha's status on the premises and also whether the trampoline was an attractive nuisance. Id. at 11. We granted transfer. 878 N.E.2d 215 (Ind.2007) (table).
In reviewing summary judgment rulings, we apply the same standard as the trial court. Row v. Holt, 864 N.E.2d 1011, 1013 (Ind.2007). We affirm summary judgment unless there is a genuine issue as to a material fact or the moving party is not entitled to a judgment as a matter of law. Id. All facts and reasonable inferences from them are to be construed in favor of the nonmoving party. Naugle v. Beech Grove City Sch., 864 N.E.2d 1058, 1062 (Ind.2007).
The amended complaint describes Count I as a claim for negligence. The plaintiffs' brief on appeal asserts that discovery had "more clearly defined" that count as a claim for premises liability and a claim for negligent supervision. However, the plaintiffs' argument focuses entirely on premises liability, and cites the alleged lack of supervision as evidence of breach under premises liability rather than as a separate tort, so we will treat it as such.
A landowner's liability to persons on the premises depends on the person's status as a trespasser, licensee, or invitee. Burrell v. Meads, 569 N.E.2d 637, 639 (Ind.1991). The Bargers argue that Alisha was a trespasser, and therefore their only duty was to refrain from willful or wanton behavior. The plaintiffs contend Alisha was a social guest and therefore an invitee to whom the Bargers owed a duty to exercise reasonable care for her protection while on the premises.
The Court of Appeals held that the determination of Alisha's status—and therefore the duty owed to Alisha by the Bargers—is a matter of law for the trial court. Kopczynski v. Barger, 870 N.E.2d 1, 5 (Ind.Ct.App.2007) (citing Taylor v. Duke, 713 N.E.2d 877, 881 (Ind.Ct.App.1999)). We have observed that the existence of a duty is ordinarily a question of law for the court to decide, but it may turn on factual issues that must be resolved by the trier of fact. Rhodes v. Wright, 805 N.E.2d 382, 386 (Ind.2004) (); see Restatement (Second) of Torts § 332 cmt. l (1965) ("Since the status of the visitor as an invitee may depend upon whether the possessor should have known that the visitor would be led to believe that a particular part of the premises is held open to him, the question is often one of fact for the jury, subject to the normal control which the court exercises over the jury's function in such matters."). For the reasons explained below, we conclude that factual issues preclude summary judgment in this case.
If Alisha entered the Bargers' property without authority, she was a trespasser. See Burrell, 569 N.E.2d at 640. If her entry was authorized, she was either a licensee or an invitee. See id. In some contexts the distinction between licensees and invitees is murky, but Burrell makes it clear that a social guest is an invitee. Id. at 643. Because her visit was solely social, Alisha was not a licensee, and was either a trespasser or an invitee. Alisha's status as trespasser or invitee, therefore, depends on whether she was authorized to be on the Bargers' property.
Bryan's invitation to join the group on the trampoline is the only evidence suggesting Alisha had permission to enter the Bargers' property and use the trampoline. "[A]n invitation is conduct which justifies others in believing that the possessor desires them to enter the land." Restatement (Second) of Torts § 332 cmt. b. An invitation does not have to come directly from the landowner. Whether a landowner's consent can be based on the action of another turns on standard agency principles. See Botka v. Estate of Hoerr, 105 Wash.App. 974, 21 P.3d 723, 727-28 (2001) (); Kern v. Ray, 283 A.D.2d 402, 724 N.Y.S.2d 457, 458 (N.Y.App.Div.2001) (); cf. St. Mary's Med. Ctr. of Evansville, Inc. v. Loomis, 783 N.E.2d 274, 279 (Ind.Ct.App. 2002) (). In the absence of actual authority to invite third parties to the house, the issue is whether the landowner's conduct gave the third party reason to believe that the landowner was willing to allow the third party to enter the land. See 62 Am.Jur.2d Premises Liability § 112 (2005) (); cf. Holman v. State, 816 N.E.2d 78, 82 (Ind.Ct. App.2004) ().
The plaintiffs concede that the Bargers issued no express invitation because Bryan was not a landowner and did not have actual authority to invite Alisha onto the premises. Thus, the question becomes whether the Bargers gave Alisha reason to believe that they were willing to allow her on their land. The Bargers testified that they had once run off some children who were jumping on the trampoline, one of whom was Michael Spears. But Alisha had never met the Bargers, and was not among the group the Bargers had "run off." Whether she had reason to know that Bryan did not have actual authority is a factual question. Although Bryan was only six years old, his parents left him alone in the unfenced backyard. Bryan's age might suggest to an adult that he lacked authority. But Alisha is also a minor. A landowner's greater duties to children may arise "taking into account the abilities, age, experience, and maturity of the child ...." Johnson v. Pettigrew, 595 N.E.2d 747, 750-51 (Ind.Ct.App.1992) (citing Restatement (Second) of Torts §§ 339, 343). Accordingly, we agree with Judge Crone that "the reasonableness of twelve-year-old Alisha's belief that she had permission to jump on the Barger's trampoline by virtue of six-year-old Bryan's invitation ... presents a genuine issue of material fact that precludes a determination of her status as a matter of law." Kopczynski, 870 N.E.2d at 11 (Crone, J., dissenting). Summary judgment as to Count I must be reversed.
The plaintiffs argue that even if Alisha was a trespasser, they may recover under the attractive nuisance...
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