Markle v. Hacienda Mexican Restaurant

• Decision Date: 02 May 1991
• Docket Number: No. 20A04-8910-CV-00461,20A04-8910-CV-00461
• Citation: 570 N.E.2d 969
• Parties: Robert MARKLE, Appellant-Plaintiff, v. HACIENDA MEXICAN RESTAURANT, Prairie-Jackson Corporation, Miller Monuments, Inc., M.E. Miller Testamentary Trust, Easy Shopping Place Businessmen's Association & John Doe, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 969

570 N.E.2d 969

Robert MARKLE, Appellant-Plaintiff, v. HACIENDA MEXICAN RESTAURANT, Prairie-Jackson Corporation,

Miller Monuments, Inc., M.E. Miller Testamentary

Trust, Easy Shopping Place Businessmen's

Association & John Doe,

Appellees-Defendants.

No. 20A04-8910-CV-00461.

Court of Appeals of Indiana,

Fourth District.

May 2, 1991.

William J. Cohen, Elkhart, for appellant-plaintiff.

Joseph J. Jensen, May, Oberfell & Lorber, Patrick J. Higgins, Jr., Feeney, Stratigos & Higgins, South Bend, for appellees-defendants.

MILLER, Judge.

Robert Markle, Plaintiff-appellant, appeals the grant of a summary judgment in favor of Hacienda Restaurant, Prairie Jackson Corp., Miller Monuments, M.E. Miller Testamentary Trust and Easy Shopping Place Businessmen's Association (collectively referred to as the Shopping Center), Defendants-Appellees. Markle claimed he was injured in the parking lot of Easy Shopping Place Shopping Center and alleged that the Shopping Center's negligent maintenance of the parking lot led to his injuries. The trial court determined Markle was a licensee at the time he was injured. Therefore, the only affirmative duty the Shopping Center owed to Markle was to refrain from willfully or wantonly injuring him. The court then granted summary judgment in favor of the Shopping Center. Markle now appeals, arguing that the question of his status at the time of the injury--invitee or licensee--is a question of fact, making summary judgment inappropriate. He also requests this court to abandon the common law distinction between invitee and licensee.

We reverse, holding that Markle's status at the time of his injury is a question of fact. Therefore, summary judgment should not have been granted.

FACTS

These facts are not disputed: On July 11, 1986, Markle, a salesman for Ron's Painting, was returning to Elkhart, Indiana, after On February 12, 1987, Markle brought suit against Hacienda, Prairie Jackson Corporation as owners of the Shopping Center, and John Does. He amended his complaint in February, 1988, to include Miller Monument, Inc., and M.E. Miller Testamentary Trust as parties, alleging the parties had an ownership interest in the shopping center. The Elkhart Superior Court granted summary judgment in favor of the Shopping Center on September 6, 1989. The court entered the following order:

making sales calls, when he decided to eat at the Hacienda Restaurant in the Shopping Center in Elkhart. When he turned into the parking lot, he noticed Tim Lusher, a friend and co-worker, sitting in his truck in the parking lot. Markle stopped his car next to Lusher's truck, which was parked in a marked parking spot at the end of a row of parking spaces. When Markle pulled up next to it, he was not in a marked parking spot. Markle asked Lusher if he would take a twenty-five pound piece of steel that Markle had in his car to work the next morning. Lusher agreed, and Markle got out of the car to move the steel from his car to Lusher's truck. As he was lifting the steel into Lusher's truck, Markle stepped into a chuckhole with his right foot. He fell, injuring his knee.

"On April 27, 1989, this cause came on for hearing on a Motion for Summary Judgment by defendants. The facts are as follows: On July 11, 1986 the plaintiff, Robert Markle, went to the Easy Shopping Place Center to eat at the Hacienda Restaurant. When the plaintiff arrived at Easy Shopping Place he saw a fellow employee in the parking lot. The plaintiff had a piece of sample steel that he wished to transfer from his car to the fellow employee's pickup truck. The plaintiff stepped in a chuckhole with his right foot while he was putting the steel from his car into the pickup truck. The plaintiff allegedly sustained injury as a result of the fall.

"The central issue in this case is whether the plaintiff is an invitee, trespasser, or licensee. Barbre v. Indianapolis [sic] (1980) Ind.App., 400 N.E.2d 1142. The duty owed by an owner or occupant of land to one coming on the premises depends largely on the relationship between them. Fort Wayne National Bank v. Doctor, (1971) 149 Ind.App. 365, 272 N.E.2d 876; Olson v. Kushner, (1965) 138 Ind.App. 73, 211 N.E.2d 620. Under Indiana law, an invitee is a person who goes onto the land of another at the express or implied invitation of owner or occupant either to transact business or for the mutual benefit of invitee and owner or occupant. Clem v. United States, 601 F.Supp. 835 (1985). A licensee is one who enters premises of another for his own convenience, curiosity, or entertainment. Id. at 836.

"The facts of this case show the plaintiff entered the defendant's premises as an invitee. This is clearly demonstrated by the plaintiff's intention to eat at the Hacienda Restaurant. However, once the plaintiff decided to move the steel from his car, his status changed to that of a licensee. The transferring of the steel was of no benefit to the owner of the premises, but rather the action was of benefit to the plaintiff and his employer. It is possible for a person's status to change once he has entered the land of another. Standard Oil Company of Indiana v. Scoville, 132 Ind.App. 521, 175 N.E.2d 711 (1961).

"The plaintiff cites Silvestro v. Walz, (1943) Ind. , 51 N.E. [2d] 629 as support for his case. The plaintiff's argument is that the main relationship between plaintiff and defendant was that of invitee and the transferring of the piece of steel was incidental to the main relationship of the invitee. The Silvestro case is clearly distinguishable from the case at bar. The Indiana Supreme Court held the defendant liable because defendant should have reasonably expected invitees to wander the entire business premises. The question is whether the defendant in this case could have reasonably expected plaintiff to transfer steel in this parking lot.

"Where controlling facts are undisputed, the determination of the status is for "The transferring of the steel was not incidental to the plaintiff's main purpose. The facts of the case at bar more closely resemble the facts of the Standard Oil case, supra. The plaintiff in the case at bar changed his status once he entered the premises. The facts of this case are undisputed.

                the court to determine.  Standard Oil, supra.   The plaintiff was not performing an action incidental to his primary intention when he entered the premises.  An incidental task is an instance whereby a business invitee does something which he could reasonably be expected to do under the circumstances.  The deviation from his main intention when he entered the business premises is only slight.  For example, in the Silvestro case, the plaintiff used the rest room facilities while waiting for car repairs.  In that case, the owner of the premises could have reasonably expected the business invitee to do this
                

"A summary judgment motion may be entered only where there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. First Savings and Loan Ass'n v. Treater [Treaster ], (1986) Ind.App., 490 N.E.2d 1149.

"The Court now holds that the plaintiff held the status of licensee at the time of the accident. The only affirmative duty a landowner owes a licensee is to refrain from willfully or wantonly injuring him in a way which would increase the licensee's peril. French v. Sunburst Properties Inc., (1988) Ind.App., 521 N.E.2d 1355. There being no material dispute as to the facts, as a matter of law, summary judgment must be granted for the defendant."

(R. 110-12).

DECISION AND DISCUSSION

When we review a motion for summary judgment, we apply the same standards employed by the trial court. Ind. Trial Rule 56(C), Travel Craft v. Wilhelm Mende GMBH (1990), Ind., 552 N.E.2d 443. Summary judgment may be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits and testimony, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. The court must liberally construe all evidence in favor of the non-movant. Even if there are no conflicting facts, summary judgment is inappropriate where the undisputed facts lead to conflicting inferences. Id.

In Indiana, the status of a person when he is injured on the premises of another determines the duty owed to that person by the owner of the property. Barbre v. Indianapolis Water Co. (1980), Ind.App., 400 N.E.2d 1142. A person entering the land of another is either a trespasser, a licensee or an invitee. Burrell v. Meads (1991), Ind., 569 N.E.2d 637. A landowner owes a trespasser the duty to refrain from willfully or wantonly injuring him after discovering his presence and owes a licensee the duty to refrain from willfully or wantonly injuring him or acting in a manner to increase his peril. Id. However, a landowner owes an invitee a duty to exercise reasonable care for the invitee's protection while the invitee is on the landowner's premises. Id.

In Burrell, our supreme court was faced with the question of how to determine whether one entering the land of another is an invitee. Burrell and Meads were friends who, over the years, helped each other perform various tasks. One afternoon, Burrell worked on his car in Meads' garage. As Burrell was preparing to leave, Meads told Burrell he would be installing a drop ceiling in the garage later that day. Burrell agreed to help. Later, Burrell climbed a ladder to remove some items which were stored on top of the garage rafters. He was injured when he fell to the floor of the garage from the rafters.

Burrell sued Meads for negligence, and the trial court granted summary judgment for Meads. This court affirmed, holding that Burrell, a social guest, was a licensee at the time of his injury and that Meads owed him only the duty to refrain from willfully or wantonly injuring him or acting in a way to increase his peril.

Our ...