Olson v. Kushner

• Decision Date: 23 November 1965
• Docket Number: No. 20190,No. 1,20190,1
• Citation: 211 N.E.2d 620,138 Ind.App. 73
• Parties: Lrene OLSON, Appellant, v. Abraham KUSHNER and Lola Kushner, Appellees
• Court: Indiana Appellate Court

Page 620

211 N.E.2d 620

138 Ind.App. 73

Lrene OLSON, Appellant, v. Abraham KUSHNER and Lola Kushner, Appellees.

No. 20190.

Appellate Court of Indiana, Division No. 1.

Nov. 23, 1965.

[138 INDAPP 74] Galvin, Galvin & Leeney, Hammond, for appellant.

Albert H. Gavit, Gary, for appellees.

FAULCONER, Judge.

This is an appeal from a ruling of the trial court sustaining appellees' demurrer to appellant's amended complaint and the judgment entered after appellant refused to plead over.

In her amended complaint appellant alleged that she was a guest in the home of appellees on July 15, 1961, and that she sustained injuries as the result of a fall on the concrete stairs leading up to and around said home. The allegations of negligence are:

'a) Negligently and carelessly failed to provide proper lighting in the area of said stairs thereby creating a dangerous and hazardous condition, said condition not having been disclosed to said plaintiff [appellant];

'b) Negligently and carelessly failed to provide adequate handrails along said stairs;

'c) Carelessly and negligently permitted and allowed water, slush and other slippery materials to accumulate on said stairway and appurtenances thereto;

'd) Knew or should have know that water, slush and other slippery materials had accumulated on the stairway thereby making them extremely hazardous yet failed to give notice to the plaintiff herein;

'e) Carelessly and negligently provided plaintiff with an umbrella which was defective in that it would collapse when exposed to the air movements or currents.'

The duty owed by a person who owns land, or is in charge of the premises, to a person on such premises depends largely on the relationship between such occupier of the land and the person injured thereon. Standard Oil Co. of Ind., Inc. v. Scoville (1961), 132 Ind.App. 521, 524, 175 N.E.2d 711 (Transfer denied).

'While there are many decisions, both in this state and elsewhere, in which the rules applicable to cases of this [138 INDAPP 75] character have been applied, the courts have been governed by the particular facts in each case in determining what rule should be applied, the essential question in each case being, Did the owner of the premises (under the particular circumstances of the case involved) owe any duty to the party injured on his premises, and, if so, was such duty violated, and did such violation result in the injury complained of?' Brush v. Public Service Co. of Indiana (1939), 106 Ind.App. 554, at pages 560-561, 21 N.E.2d 83, at page 86.

In Millspaugh, Admr. v. Northern Ind. Pub. S. Co. (1938), 104 Ind.App. 540, at page 552, 12 N.E.2d 396, at page 401, this court said:

'The courts recognize two classes of licensees; namely, licensees by invitation and licenses by permission. To a licensee by invitation the occupant of the premises assumes the obligation of making and maintaining them in a reasonably safe condition for the use of the licensee while he remains thereon by virtue of such invitation, and, for a violation of this duty, the owner is liable in damages to a person injured thereby who is himself free from contributory negligence. A licensee by permission is one who for his own convenience, curiosity, or entertainment, goes on the premises of another by his (the owner or occupant's) permission or sufferance. Such a licensee takes the premises as he finds them as to any defects thereon, and the owner is not liable for any injuries resulting to such licensee owing to defects in the condition of the premises. The owner is not liable for passive negligence. Cleveland, etc., Ry. Co. v. Means, 1914, 59 Ind.App. 383, 104 N.E. 785, 108 N.E. 375; Thistlewaite v. Heck, 1920, 75 Ind.App. 359, 128 N.E. 611, 612.'

Although the status of a 'guest', as alleged in appellant's amended complaint, while on the premises of the owner or occupant of land has never been decided in Indiana to our knowledge, and no such determination has been cited by the parties herein, most of the courts which have been called upon for a determination of the status of such person have held that he has only the rights of a mere licensee, or licensee by permission, as distinguished from those of an invitee. 65 C.J.S. Negligence Sec. 32, p. 489; [138 INDAPP 76] Annot., 25 A.L.R.2d 600, 601, 605 (1952); 2 Harper & James, Torts, Sec. 27.11, p. 1477 (1956).

'Thus nearly all of the decisions are agreed that a social guest, however cordially he may have been invited and urged to come, is not in law an invitee--a distinction which has puzzled generations of law students, and even some lawyers. The guest is legally nothing more than a licensee, to whom the possessor owes no duty of inspection and affirmative care to make the premises safe for his visit.' Prosser, Torts, Sec. 60, p. 387 (3rd Ed. HB 1964).

The allegations contained in appellant's amended complaint, in our opinion, places appellant within the mere licensee or licensee by permission class.

[4, 5] Many decisions of our Supreme and Appellate Courts have set forth, in various language, the duty owed by an owner or occupier of land to a mere...