Letson v. Lowmaster, 3--774A131

CourtCourt of Appeals of Indiana
Citation168 Ind.App. 159,341 N.E.2d 785
Docket NumberNo. 3--774A131,3--774A131
PartiesKeith A. LETSON, a minor, by Curtis F. Letson, his next friend, and Curtis F. Letson, Plaintiffs-Appellants, v. Signe LOWMASTER, Defendant-Appellee.
Decision Date19 February 1976

John Kappos and Hawk P. C. Kautz, Jake W. Rubin, Merrillville, for plaintiffs-appellants.

Kizer, Neu, Joyce & Rockaway, Chipman, Morrison & Humphrey, Plymouth, for defendant-appellee.


On June 17, 1971, Curtis Letson took his family camping. They went to a camping area near the Tippecanoe River on a farm owned by Signe Lowmaster. Mrs. Lowmaster charged a fee of fifty cents per night for campers. On the night of June 17, several other families were also using this campground. About 10:30 p.m., Curtis' son Keith, who was six years old, went down to stand by a campfire that someone had built near the river. Moments later there was a popping noise, like a small explosion, and Keith was struck in the left eye by something. As a result of this injury, he lost the sight in his eye.

This action was commenced against Lowmaster to recover for the injury, alleging her negligent operation and maintenance of the campground. After Keith and Curtis Letson and Mrs. Lowmaster had been deposed, the defendant moved for summary judgment. The trial court granted the motion, and this appeal followed. The issue presented to us is whether the court correctly determined that there was no genuine issue of material fact and that Lowmaster was entitled to judgment as a matter of law.

Our decisions construing TR 56 and its predecessor statute make it clear that the purpose of the summary judgment provision is not to evade jury trials or have the judge weigh the evidence to determine where the preponderance lies in advance of its being presented. See, e.g., Central Realty, Inc. v. Hillman's Equipment, Inc. (1969), 253 Ind. 48, 246 N.E.2d 383; Doe v. Barnett (1969), 145 Ind.App. 542, 251 N.E.2d 688; Wozniczka v. McKean (1969), 144, ind.App. 471, 247 N.E.2d 215. Summary judgments are appropriate only where there is no genuine issue as to any material facts, and the party is entitled to judgment as a matter of law. Thus, even where the facts are undisputed, the ability to reasonably draw from them conflicting inferences which would alter the outcome will make summary judgment inappropriate. Wozniczka, supra. On the other hand, despite conflicting facts and inferences on some elements of a claim, summary judgment may be proper where there is no dispute or conflict regarding a fact that is dispositive of the litigation. Aafco Heating and Air Conditioning Co. v. Northwest Publications, Inc. (1974), Ind.App. 321 N.E.2d 580.

Letson correctly points out that upon the facts disclosed in the depositions and the inferences that they might support, there appears to be a genuine issue as to the possible negligence of Lowmaster. However, we do not perceive that as the basis for the court's ruling.

The depositions disclose that on the night in question, Keith went down by the campfire. A noise was heard and immediately thereafter something struck him in the left eye. No one knows or has been able to discover what that something was. No physical evidence was discovered from which the answer might be reasonably inferred. It would be reasonable to infer that whatever struck him was related to the noise that was heard. It could also be inferred that it came from the campfire. However, the depositions disclose that there is simply no evidence as to what the object was, how it got into the campfire, or when it got there. It is asserted that it might have been something from an aerosol can or perhaps a fragment from a round of live .22 caliber ammunition, yet no one observed a can or a bullet; Mrs. Lowmaster did not permit hunting in the area; and Letson had never seen anyone have ammunition around the campground.

A jury might have found that Mrs. Lowmaster was negligent in maintaining the campground, but that would not be enough. To establish liability, there must be some evidence of probative value that her negligence proximately caused the injury to Keith.

In Surratt v. Petrol, Inc. (1974), Ind.App., 312 N.E.2d 487, we considered the propriety of summary judgment on two issues of causation where the critical question was whether the causation could be considered proximate.

Here the factual context is different. As a business invitor, Lowmaster owed a duty to Letson, an invitee, to exercise reasonable care for his safety. She was not, however, an insurer of his safety, and would not be liable for conditions from which no unreasonable risk was to be anticipated, or from conditions of which she was unaware and in the exercise of reasonable care could not have discovered. Hammond v. Allegretti (1974), Ind., 311 N.E.2d 821.

Thus, without any evidence of what struck Keith in the eye, or when, or how it got into the campfire (assuming it came from the fire), any finding that the injury was proximately caused by Lowmaster's negligence in...

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  • Shideler v. Dwyer, 381S55
    • United States
    • Indiana Supreme Court of Indiana
    • March 3, 1981
    ...is proper when there is no dispute or conflict regarding a fact that is dispositive of the litigation. Letson v. Lowmaster, (1976) 168 Ind.App. 159, 341 N.E.2d One final contention of Plaintiff should be disposed of. She argues, without supporting authority, that the defendants were require......
  • Nationwide Mut. Ins. Co. v. Neville, 1-481A104
    • United States
    • Indiana Court of Appeals of Indiana
    • April 29, 1982
    ...not require the trial court to enter summary judgment for the moving party. As stated by Judge Garrard in Letson v. Lowmaster, (1976) 168 Ind.App. 159, 163, 341 N.E.2d 785, "This portion of the rule cannot be disregarded. The failure of the opposing party to file affidavits, etc. will not b......
  • Sports, Inc. v. Gilbert, 1-1080A284
    • United States
    • Indiana Court of Appeals of Indiana
    • February 23, 1982
    ...is not an insurer of the safety of invitees. See Hammond v. Allegretti, (1974) 262 Ind. 82, 311 N.E.2d 821; Letson v. Lowmaster, (1976) 168 Ind.App. 159, 341 N.E.2d In all of the cases imposing liability for the failure to control the conduct of a third party, there are similar factors supp......
  • Andert v. Fuchs, 3-377A69
    • United States
    • Indiana Court of Appeals of Indiana
    • October 31, 1978
    ...evidence against him. See Orey v. Mut. Life Ins. Co. of N.Y. (1939), 215 Ind. 305, 19 N.E.2d 547; Letson v. Lowmaster (1976), Ind.App., 341 N.E.2d 785. The critical element in plaintiffs' claim is wanton misconduct on the part of Fuchs, and the problem is whether there was evidence sufficie......
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