Orth v. Smedley
| Citation | 378 N.E.2d 20,177 Ind.App. 90 |
| Decision Date | 11 July 1978 |
| Docket Number | No. 1-1277A295,1-1277A295 |
| Parties | Wilmennia Becker ORTH, Plaintiff-Appellant, v. Richard SMEDLEY and Doris Smedley, Defendants-Appellees. |
| Court | Court of Appeals of Indiana |
James D. Allen, Salem, for defendants-appellees.
Plaintiff-appellant Wilmennia Becker Orth appeals from a summary judgment rendered in favor of defendants-appellees Richard Smedley and Doris Smedley in her action to recover damages for injuries sustained by Mrs. Orth when she slipped and fell on ice while leaving the apartment which she rented from the Smedleys.
The Smedleys, residents of Mitchell, Indiana, owned a two-story structure in Salem, Indiana, which they held as rental property. A printing shop was located on the first floor of the building. On the second floor were two apartments. The operators of the printing shop (Mr. and Mrs. Spencer) occupied one apartment, and Mrs. Orth moved into the other apartment on November 1, 1970.
In order to reach the highway, which was on the south side of the building, Mrs. Orth had to exit from her apartment on the north side of the building, cross a footbridge which was approximately twelve feet long, turn to her right and cross a graveled parking area, and then follow a driveway along the east side of the building to the highway. Mrs. Orth traveled this route at least twice a day, six days a week, from November 1, 1970, until date of her injury, January 28, 1971.
Mrs. Orth stated in her deposition that a heavy rain fell during the hours between midnight and 6:00 a. m. on January 28, 1971.
At approximately 6:00 a. m., Mrs. Orth heard a honking horn, which indicated that the lady with whom she rode to work each day was waiting for Mrs. Orth in her automobile parked along the highway in front of the building. Mrs. Orth was aware of the fact that it had rained heavily earlier that morning, but she was not aware that ice had formed.
She crossed the footbridge without difficulty and stated in her deposition that the bridge was not slippery. Mrs. Orth stepped from the bridge and walked approximately fifteen feet before she fell, breaking her arm. As she walked along that fifteen feet, she became well aware that ice had accumulated:
" * * *she Q. And during that trip of fifteen feet, was there ice there?
A. Yes, lot of it.
Q. You observed the ice?
A. I then was slipping.
Q. You started slipping then, did you stop or did you go on?
A. I was trying to go on, to tell the truth, I was trying to get to this car out in front.
Q. In other words, the car was out in front, blowing to pick you up and you were trying to get out there to get in the car; and, although you were slipping you continued to go forward?
A. I thought I could make it.
Q. You made a judgment then that you could go ahead and get there?
A. Yes.
Q. Although you did realize there was ice on the ground?
A. Yes.
Q. And you discovered that the ground was covered with ice as soon as you stepped off the bridge?
A. Yes.
Q. Had you observed any ice before you stepped off the bridge? Could you see the ice on the ground or just feel it was there?
A. Well, just more so feel it.
On January 15, 1973, Mrs. Orth filed her complaint against the Smedleys. She alleged that the Smedleys were negligent in failing to warn Mrs. Orth of the hazard created by the ice and in failing to remove the ice.
The trial court entered summary judgment for the Smedleys.
Mrs. Orth contends on appeal that the trial court erred in granting the motion for summary judgment. She argues that the Smedleys had a duty to remove the ice and that genuine issues of material fact existed in the proceeding.
The trial court properly may grant a motion for summary judgment ". . . if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ind.Rules of Procedure, Trial Rule 56(C).
The proponent of a motion for summary judgment bears the burden to show that no genuine issues of material fact exist. Facts set forth in the opponent's affidavit are taken as true. Depositions, admissions, answers to interrogatories, and testimony are construed liberally in favor of the opponent. Podgorny v. Great Central Insurance Co. (1974), 160 Ind.App. 244, 311 N.E.2d 640.
The tort of negligence consists of three elements: (1) A duty owed by defendant to plaintiff; (2) failure of defendant to conform his conduct to the requisite standard of care dictated by the relationship; and (3) injury caused plaintiff as a result of that failure. Miller v. Griesel (1973), 261 Ind. 604, 308 N.E.2d 701.
In Purcell v. English (1882), 86 Ind. 34, 42-43, a tenant fell while descending a stairway common to the use of all tenants in the building. The stairway had become dangerous due to an accumulation of ice and snow. As the tenant fell, she grasped a railing, which came loose. When the railing gave way, the tenant fell to the pavement and suffered injuries. Our Supreme Court stated the following rule:
". . . We are satisfied that the authorities warrant us in adjudging that, where a stairway connected with apartments hired in a tenement house occupied by several tenants is rendered unsafe by temporary causes, such as the accumulation of snow and ice, the landlord is not liable to the tenant who uses such a stairway with full knowledge of its dangerous condition, unless there is a contract on the part of the landlord to keep the premises in repair and fit for safe use. . . . If any other rule is adopted, then the owner is charged with the duty of watching steps leading to every part of the premises, and of keeping them free from all temporary obstructions; for, let it once be granted that the landlord is liable for obstructions or defects not permanent and not growing out of the character of the structure, it will be impossible to draw any line, and he must be held accountable for all obstructions and defects, no matter how transient their character. . . .
The evidence before us shows that the ice and snow made the stairway unsafe, and caused the accident. But for the ice and snow, which the tenant could have removed with very little labor, or at a trifling expense, the appellant could have used the stairway in perfect safety. We are satisfied that the court below was right in holding that the cause of the accident was the accumulation of ice and snow upon the stairway, and...
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