Mullins v. Easton

• Decision Date: 12 June 1978
• Docket Number: No. 3-876A188,3-876A188
• Citation: 376 N.E.2d 1178,176 Ind.App. 590
• Parties: Linnel MULLINS and Donna Mullins, Plaintiffs-Appellants, v. John EASTON and Catherine Easton, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 1178

376 N.E.2d 1178

176 Ind.App. 590

Linnel MULLINS and Donna Mullins, Plaintiffs-Appellants, v. John EASTON and Catherine Easton, Defendants-Appellees.

No. 3-876A188.

Court of Appeals of Indiana,Third District.

June 12, 1978.

Saul I. Ruman, Hammond, for plaintiffs-appellants.

Daniel F. Kelly, Timothy F. Kelly, Hammond, for defendants-appellees; Beckman, Kelly & Smith, Hammond, of counsel.

HOFFMAN, Judge.

Linnel Mullins and Donna Mullins appeal from a summary judgment entered on their complaint for damages against John Easton and Catherine Easton. The action arose out of Linnel Mullins' personal injuries which were sustained as a result of his fall on the back stairway of the Easton residence. The issue raised concerns whether Mullins had the status of a licensee or an invitee upon the property in terms of the duty of care owed to him by the possessors and whether there were material issues of fact as to the reasonableness of the care afforded appellant in consideration of that duty.

On February 21, 1971, the appellees John and Catherine Easton employed the Ace Sewer Company to perform services in connection with removing roots from their sewer line. The Ace Sewer Company was owned by Tony Randazzo who upon receiving the Easton telephone call requested that an employee, Gerald Hammond, and a friend, Linnel Mullins, go along with him to help since his back was weak. Accordingly, Mullins drove with Hammond to the Easton home where he helped to carry a two-hundred-pound machine known as a roto rooter up the "two or three" steps of the back stairs onto the porch. Mrs. Easton opened the door for the pair and let them in. They then carried the machine to the basement where the work was to be performed. Mullins remained in the basement as an observer until the work was completed by Randazzo. Thereupon, Hammond and appellant carried the roto rooter machine back upstairs and out onto the porch. As Hammond proceeded down the rear stairs carrying one end of the machine, Mullins followed with the other end. At that moment appellant apparently moved the upper step slightly forward with his weight as he came off the landing such that he lost his balance and fell under the machine. The roto rooter landed on Mullins' leg causing it to break in the thigh region.

As a result of the accident Mullins, together with his wife, brought this action alleging inter alia that the appellee landowners were negligent in the maintenance of their property causing Mr. Mullins' injury to include a fractured left femur, medical expenses, lost wages, pain and suffering thereby damaging Mrs. Mullins by denying her the services and consortium of her husband. After the filing of answers to interrogatories and depositions of the parties, the Eastons moved for summary judgment. The same was granted, the trial court noting that since Mullins was not an employee of Ace Sewer Company he was a mere licensee to whom the "defendants owed . . . no duty except to refrain from injuring him wilfully or entrapping him."

On appeal Mullins asserts that the trial court erred in determining as a matter of law that he was a licensee in the Easton home. Rather, in reliance on Standard Oil Co. of Ind., Inc. v. Scoville (1961), 132 Ind.App. 521, 175 N.E.2d 711, and Cleveland, etc., R. Co. v. Means (1914), 59 Ind.App. 383, 104 N.E. 785, appellant argues that he was a business invitee on the Eastons' premises. It is said that he was conferring an economic benefit upon them at their request, albeit indirect, by helping to lift the roto rooter to the basement to clear the sewer line.

Appellees respond that in order to be an invitee it is necessary that the person be invited on the premises by the owner and thereafter be on those premises for a business reason. The Eastons relying on Brown v. Kujawa (1968), 142 Ind.App. 310, 234 N.E.2d 509, argue that Linnel Mullins was accompanying Randazzo and Hammond for his own convenience, curiosity and entertainment and was only upon the Eastons' property at their sufferance. Further, appellees assert that there is no justification for changing Mullins' status from that of a licensee to that of an invitee, just because he performed some incidental services in helping to carry the roto rooter down to the basement and back, citing Ft. Wayne Nat'l Bk., Adm. v. Doctor (1971), 149 Ind.App. 365, 272 N.E.2d 876.

Drawn into question is the legal duty of care owed the voluntary helper of a repairman engaged to work on one's private premises. Relevant to this inquiry there has developed a long standing system classifying those who come upon land in terms of their status relationship with the possessor and the legal duty owed them. Swanson v. Shroat (1976), Ind.App., 345 N.E.2d 872. These classifications were most recently reaffirmed by our Supreme Court in Hammond v. Allegretti et al. (1974), 262 Ind. 82, 311 N.E.2d 821. Quoting from the Restatement of Torts (Second), § 343 (1965) with regard to licensees the Hammond court stated:

" 'A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land, 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.' " (Original Emphasis).

The court further defined the legal duty owed by a landowner to a business invitee by quoting from Evansville and Terre Haute Railroad Company v. Griffin (1884), 100 Ind. 221:

" 'If, however, the owner of occupant of lands, by any enticement, allurement or inducement, causes others to come upon or over his lands, then he assumes the obligation toward persons so coming to provide a reasonably safe and suitable way for that purpose. An owner may not by invitation, either express or implied, induce another to come upon or pass over his premises, without keeping them in such condition of safety as to admit of his passing over by the means designated or prepared without injury, provided he uses due care. To make the owner or occupant liable for an injury received by one passing over his premises, something more than a mere passive acquiescence in the use of his land by others is necessary. So long as his lands are used by others, be it never so frequent, for their own convenience, he is not liable. But if, by some act or designation of his, persons are led to believe that a way or path over premises was intended to be used by travellers, or others having lawful occasion to go that way, then as to such persons the owner or occupant comes under an obligation to keep it free from dangerous obstructions or pitfalls which might cause them hurt. The inducement must be equivalent to an invitation, either express or implied; mere permission is not sufficient. Carleton v. Franconia Iron and Steel Co., 99 Mass. 216.' " (Original Emphasis).

Whether a person entering the premises of another bears the legal status of an invitee or of a mere licensee depends in part upon the purpose of the visit. So long as the object of the visit is...