Northern Indiana Public Service Co. v. Stokes

Decision Date28 May 1986
Docket NumberNo. 3-685-A-149,3-685-A-149
Citation493 N.E.2d 175
PartiesNORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellant (Defendant Below), v. Bobbie J. STOKES, Appellee (Plaintiff Below).
CourtIndiana Appellate Court

Richard A. Hanning, Eichhorn, Eichhorn & Link, Hammond, for appellant.

John M. Kopack, Merrillville, for appellee.

STATON, Presiding Judge.

On January 14, 1980, Bobbie J. Stokes (Stokes) tripped and fell over a plastic runner covering part of the floor at the Consumer Service Center owned by Northern Indiana Public Service Company (NIPSCO). A jury found in favor of Stokes and determined her damages to be forty-five thousand dollars. 1 NIPSCO appeals, and argues that the trial court erroneously denied its motion for judgment on the evidence pursuant to Indiana Rules of Procedure, Trial Rule 50. Specifically, NIPSCO contends that its motion was erroneously denied for the following reasons:

1) the danger was open and obvious obviating any duty NIPSCO may have owed to Stokes 2) there was no evidence that NIPSCO was negligent; and

3) there was no evidence that prior to Stokes' fall, NIPSCO was or should have been aware of a defect or condition on the premises.

Affirmed.

I. Open and Obvious

Stokes entered NIPSCO's Service Center to make a partial payment on her utility bill. The plastic floor runner, which was three feet, four inches wide and one-eighth of an inch thick, lay on a tiled floor separating a row of chairs on one side from the NIPSCO service representatives on the other. Stokes sat in one of the chairs and waited approximately ten minutes for her turn to talk with a NIPSCO agent. When her name was called, Stokes started over to the service desk but tripped on the runner. She fell to the floor striking her hands and knees and was injured. Stokes claimed that a pucker along the edge of the rubberized mat caused her to lose her balance.

At the close of Stokes' case, NIPSCO moved for judgment on the evidence pursuant to T.R. 50. NIPSCO claims that its motion was erroneously denied because the danger to Stokes was open and obvious, therefore, as a matter of law, it owed Stokes no duty. This argument is based on Law v. Yukon Delta, Inc. (1984), Ind.App., 458 N.E.2d 677, trans. den. (Staton, P.J., dissenting), a case recently decided by this court.

In Law, the open and obvious danger rule derived from Bemis Co., Inc. v. Rubush (1981), Ind., 427 N.E.2d 1058 (Hunter and DeBruler, J.J., dissenting), cert. den. (1982), 459 U.S. 825, 103 S.Ct. 57, 74 L.Ed.2d 61, was applied to deny recovery to a repairman who knowingly walked onto a wet and slippery floor and was injured. The reasoning in Law, however, that the open and obvious danger rule should apply to slip and fall situations, has since been rejected by our state supreme court in Bridgewater v. Economy Engineering Co. (1985), Ind., 486 N.E.2d 484, 489, reh. den. (Shepard, J., concurring in part and dissenting in part; DeBruler, J., dissenting). Bridgewater stands for the proposition that the open and obvious danger rule is limited to products liability cases, and it should not be extended to those cases involving general negligence. 2

Bridgewater was published after NIPSCO filed its appellate brief, but before NIPSCO filed its reply brief. In the latter, NIPSCO argued that Bridgewater should not adversely affect its contention since the "risk, or danger, of tripping was open and obvious to everyone, including NIPSCO." Reply Brief at p.1, n.1. In essence then, NIPSCO is arguing that under any standard, the danger to Stokes was so blatant that the trial court should have found as a matter of law that NIPSCO owed no duty to Stokes.

Before a jury may consider the question of negligence, the trial court must first determine whether the defendant owes the plaintiff a duty. 3 In the instant case, it was uncontroverted that Stokes was a business invitee of NIPSCO. The duty owed by a host to a business invitee has been well established. Although the business host is not an insurer of the safety of invitees, the host must exercise reasonable care to maintain its property, including the obligation to discover possibly dangerous conditions and to take reasonable precautions to protect the invitee. Kroger Co. v. Haun (1978), 177 Ind.App. 403, 379 N.E.2d 1004, trans. dis. The question before us is whether or not NIPSCO's duty was obviated, as a matter of law, because Stokes either incurred the risk 4 or was contributorily negligent. 5

When reviewing the denial of a T.R. 50 motion for judgment on the evidence, this court will consider evidence most favorable to the nonmoving party along with all reasonable inferences therefrom. If there is any probative evidence or reasonable inference to be drawn from the evidence or if reasonable people would differ as to the result, judgment on the evidence is improper. Given that qualification, the motion should be granted only in those cases where the evidence is not conflicting and susceptible to one inference, supporting judgment for the movant. Whisman v. Fawcett (1984), Ind., 470 N.E.2d 73, 79 (DeBruler, J., concurring); Farm Bureau Ins. Co. v. Crabtree (1984), Ind.App., 467 N.E.2d 1220, 1225, trans. den.

An examination of the evidence is not susceptible to the sole inference that the danger of falling on the mat was so blatant that Stokes should have been aware of imminent harm, or that she threw caution to the wind by crossing the runner. It is sufficient to note that NIPSCO spent considerable effort at trial trying to convince the jury that the plastic mat was not dangerous. 6 Consequently, we have determined that several conflicting inferences could reasonably be drawn from the evidence presented in this case, and that the trial court did not err by denying NIPSCO's T.R. 50 motion.

II. Negligence

NIPSCO also attacks the trial court's decision to deny its T.R. 50 motion on the grounds that there was no proof that the mat was dangerous per se, or that there was a condition or defect which caused Stokes to trip. NIPSCO urges us to conclude that because Stokes failed to present any evidence that NIPSCO was negligent she has not made a prima facie case, and it was error for the trial court to let this case go before the jury. Stokes claims that the negligence issue was for the jury to decide.

The gravamen of Stokes' complaint was that NIPSCO was negligent because its plastic runner was not securely fastened to the floor which allowed it to pucker along its edge. Although Stokes could not discern the exact cause of her fall when her toe came in contact with the edge of the runner, after she fell she noticed small puckers along the mat's edge. The existence of these puckers was confirmed by a security guard at the service center who came over to Stokes after she fell. The guard also testified that when he stepped on the puckers they went away. Two other NIPSCO employees also checked the area in which Stokes fell, and they found nothing unusual or anything that could cause someone else to trip. Four days later, a NIPSCO claims adjuster who examined the runners from the service center testified that although no nails or tape were used to fasten the runner to the floor, everywhere he touched along the underside of the mat, it was sticky to promote the mat's adherence to the tile floor. That evidence was uncontroverted. The only other testimony about the mat was that it was discolored and dirty.

A causal relationship between negligence and injury must be shown in order to fix liability, School City of Gary v. Claudio (1980), Ind.App., 413 N.E.2d 628, trans. den., and generally it is the plaintiff who must prove the defendant's negligence. Plan-Tec v. Wiggens (1983), Ind.App., 443 N.E.2d 1212. In the instant case, the injury sustained on the premises must be the result of a defect in the premises, Bell v. Horton (1980), Ind.App., 411 N.E.2d 648, reh. den., since negligence will not be assumed from the mere fact that there was an injury. F.W. Woolworth Co. v. Jones (1955), 126 Ind.App. 118, 130 N.E.2d 672 (en banc) (absent special circumstances to invoke doctrine of res ipsa loquitur, the mere happening of an accident does not make a prima facie case for the plaintiff). 7

When reviewing a T.R. 50 motion, we will consider the evidence most favorable to the nonmoving party along with all reasonable inferences therefrom. Whisman, supra. Thus, we must determine if there is any evidence or legitimate inference to be drawn from it to support Stokes' allegation that NIPSCO was negligent. In the present case, there is no direct evidence of negligence so our determination focuses on whether it was reasonable to infer that the puckers Stokes observed after her fall were there before she fell, and that they were the cause of her mishap.

In Haidri v. Egolf (1982), Ind.App., 430 N.E.2d 429, reh. den., we commented on the difficulty of determining what may reasonably be inferred from evidence. In that case, in which the driver of a car, who was struck in the rear, could not produce any evidence of how or why the other driver was negligent, Judge Garrard wrote the following:

Where, however, the evidence is circumstantial the ruling on a TR 50 motion may be indeed exacting. The question then becomes the reasonableness of the soughtfor inference. Posed in the context of this case the issue is whether the evidence before the court when the motion was made was sufficient to create a reasonable inference of negligence on the part of the defendants, or whether the necessary inference of negligence was unreasonable in the sense that it could exist only as a matter of surmise, conjecture or speculation. In the latter instance judgment on the evidence would be proper.

Id., at 431 (emphasis in original) (footnote omitted).

In order to persuade us that it would be unreasonable to infer that NIPSCO was negligent in this case, NIPSCO has referred us to four cases from other jurisdictions. These cases, however, are...

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