Palace Bar, Inc. v. Fearnot

• Decision Date: 19 April 1978
• Docket Number: No. 1-177A9,1-177A9
• Citation: 376 N.E.2d 1159
• Parties: PALACE BAR, INC., an Indiana Corporation, Herman Walters and Ruth Walters, d/b/a the Palace Bar and Nell Lynn, Appellants (Defendants below), v. Rosetta FEARNOT, as Surviving Spouse and Administratrix of the Estate of Garlen Fearnot, Deceased, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 1159

376 N.E.2d 1159

PALACE BAR, INC., an Indiana Corporation, Herman Walters and Ruth Walters, d/b/a the Palace Bar and Nell Lynn Appellants (Defendants below), v. Rosetta FEARNOT, as Surviving Spouse and Administratrix of the Estate of Garlen Fearnot, Deceased, Appellee (Plaintiff below).

No. 1-177A9.

Court of Appeals of Indiana,First District.

April 19, 1978.

Rehearings Denied May 16, 1978.

Eric A. Frey, Rosenfeld, Wolfe, Frey & Lowery, Terre Haute, Harold A. Harrell, Bloomington, Gus Sacopulos, Terre Haute, for appellants.

Walter E. Bravard, Jr., Dean E. Richards, Richards, Bennett & Bravard, Indianapolis, for appellee.

ROBERTSON, Judge.

This appeal is brought from an action by Rosetta Fearnot as surviving spouse and administratrix of the estate of Garlen Fearnot, deceased, against the defendants-appellants (defendants) Palace Bar, Inc., an Indiana Corporation, Herman Walters and Ruth Walters, d/b/a the Palace Bar, and Nell Lynn, for the wrongful death of Garlen Fearnot. We affirm, in part, and reverse, in part.

On January 3, 1974, Garlen Fearnot (Fearnot) entered the Palace Bar for the purpose of purchasing and being served alcoholic beverages. According to testimony, Fearnot had consumed two shots of whiskey but did not appear intoxicated, when, without saying anything, he abruptly left the bar and started toward the rear of the premises. Witnesses stated that Fearnot staggered as he walked, that he bumped against a booth, and that he stumbled against a pinball machine as he left the front room of the bar and continued, apparently, toward the rear door, which was the door he customarily used. Subsequently, the staggering Garlen Fearnot, according to conflicting testimony, either fell down the stairs or, while clutching for the handrail, slid to the landing below.

Herman Walters, the bartender and owner and manager of the Palace Bar, watched Fearnot as he left the bar and, thinking something might be amiss because of Fearnot's past history of heart problems, followed him. According to his testimony, Walters discovered Fearnot on the stair landing and attempted to be of assistance to Fearnot, who was slumped against the rail, by laying him down on the landing. Walters testified that he asked Fearnot if he could help, to which Fearnot replied that he would be all right and to just leave him alone. Walters went back to the front of the bar where he discussed the situation with other patrons. Walters and others apparently checked repeatedly on Fearnot's condition although no one called for medical assistance.

Thereafter, about an hour later, Walters apparently discovered that Fearnot had lost consciousness whereupon Walters called for the fire department's emergency medical unit, which was located across the alley from the Bar. The responding unit was unable to revive Fearnot, who was later pronounced dead at the scene by the Greene County Coroner.

While the Coroner ruled that Fearnot's death was the result of natural causes by way of a cerebral hemorrhage, Dr. James Benz, an Indianapolis pathologist who performed an autopsy, attributed death to heart disease. Although bruises were found on the body, there was no evidence to show that Fearnot died as a result of a fall or injury. Dr. Benz testified that he could not say for certain that Fearnot's life would have been saved had he been given treatment.

Evidence in the record shows that Fearnot experienced a variety of health problems and was, at the time of his death, on total, non-service connected disability from the Veterans Administration. According to testimony, Fearnot was known to have had other experiences wherein he had to lie down for several minutes before he was able to continue on, and he also had confided to others that he had a "bad ticker" or heart problems. Fearnot's widow testified, however, that she was unaware of her husband having any heart trouble.

The wrongful death suit subsequently brought by Mrs. Fearnot, as surviving spouse and administratrix of the estate of the deceased, resulted in a jury returning a verdict on April 16, 1976, in her favor in the amount of $93,000. Defendants bring this appeal following the overruling of their motion to correct errors on October 27, 1976.

Our examination of defendants' motion to correct errors and appellate brief indicates that defendants present the following issues for review:

1. Whether the trial court erred in failing to grant defendants' motions for directed verdict at the close of plaintiff's evidence and at the close of all the evidence;

2. Whether the trial court erred in failing to withdraw certain theories of recovery from consideration by the jury;

3. Whether the trial court erred in the giving of certain instructions;

4. Whether the trial court erred in refusing to give an instruction tendered by defendants;

5. Whether the trial court erred in giving to the jury verdict forms which permitted recovery against defendant Ruth Walters, a stockholder of Palace Bar, Inc.;

6. Whether the jury's verdict of $93,000 was excessive.

I.

Defendants' first assignment of error is based on the contention that Mrs. Fearnot did not prove any proximate relationship between the defendants' acts or omissions and any injuries allegedly resulting in Fearnot's death. We disagree.

Mrs. Fearnot's complaint consisted of four counts including negligence, nuisance, breach of warranty, and willful and wanton misconduct; however, our disposition of this issue requires that we consider only the count of negligence.

In a jury trial, a court should not direct a verdict for a defendant at the close of plaintiff's evidence unless there is a total absence of evidence or reasonable inference on at least one essential element of plaintiff's case. A directed verdict, moreover, is proper only when the evidence is without conflict and is susceptible of but one inference in favor of the moving party. Mamula v. Ford Motor Company (1971), 150 Ind.App. 179, 275 N.E.2d 849; Allied Fidelity Insurance Co. v. Lamb (1977), Ind.App., 361 N.E.2d 174.

Applying these principles to the negligence theory, we must see if there is evidence or reasonable inferences to support a finding of each element of negligence. We conclude that such evidence and inferences do exist in this case.

In Indiana, the three elements of negligence are:

1. a duty on the part of a defendant in relation to the plaintiff;

2. failure on the part of a defendant to conform its conduct to the requisite standard of care required by the relationship; and,

3. an injury to the plaintiff resulting from that failure.

Miller v. Griesel (1974), 261 Ind. 604, 308 N.E.2d 701; Elliott v. State (1976), Ind.App., 342 N.E.2d 674.

As to the existence of a duty owed one party by another, the nature of the relationship between those parties must be analyzed. In this case, clearly the relationship is that of a business invitor (defendants) to business invitee (decedent Fearnot) in that Fearnot entered upon the defendants' bar premises at the express or implied invitation of the owners or occupants to transact business to the mutual advantage of both Fearnot and the bar owners-occupants. See Verplank v. Commercial Bank of Crown Point (1969), 145 Ind.App. 324, 251 N.E.2d 52.

Our Supreme Court in Hammond v. Allegretti (1974), 262 Ind. 82, 311 N.E.2d 821, concluded that a landowner or occupier is under a duty to exercise reasonable care for the protection of invitees on the business premises. This duty includes ordinary reasonable care to maintain business premises in a reasonably safe condition, an obligation to exercise reasonable care to discover possibly dangerous conditions, and to take reasonable precautions to protect the invitee. This duty arises as a matter of law. The question whether the business invitor exercised the requisite degree of care is strictly for the trier of fact. See also Hobby Shop, Inc. v. Drudy (1974), Ind.App., 317 N.E.2d 473.

Defendants were obligated as a matter of law to exercise ordinary reasonable care for the safety of Fearnot while he was an invitee upon their business premises. Mrs. Fearnot argues that the defendants failed to exercise reasonable care in that: (1) they allowed an open stairway to exist close to the rear exit of the premises; (2) they failed to post a warning or notice of the existence of said staircase; and (3) they invited patrons to frequent the premises and thereby held the premises out to be safe when they were not.

The rule in Indiana is that where defendant's negligence is alleged to consist of several separate and distinct acts or omissions, it is sufficient for plaintiff to prove any one or more of such acts or omissions as being the negligence which caused the injury. City of Indianapolis v. Bates (1965), 137 Ind.App. 227, 205 N.E.2d 839. If several grounds of negligence are pleaded, judgment will be sustained if one of the grounds is established by the evidence. Smith v. Glesing (1969), 145 Ind.App. 11, 248 N.E.2d 366; Kampo Transit, Inc. v. Powers (1965), 138 Ind.App. 141, 211 N.E.2d 781.

Again we point out that the question whether the defendants, as business invitors, exercised the requisite reasonable care is strictly one for the trier of fact. We conclude that evidence as presented in the record and reasonable inferences therefrom are sufficient to support a finding of breach by defendants of the standard of reasonable care under the circumstances so as to permit the overruling of defendants' motions.

The evidence and inferences could support a finding of negligence by defendants in their failure to obtain medical assistance for Fearnot after his fall down defendants' stairs where no action to secure medical aid was taken for a period of over an hour after the defendants became aware of Fearnot's peril. Though when read literally, Mrs. Fearnot's complaint specifies the failure to obtain medical assistance as constituting willful and wanton misconduct, the jury would not have been required...