Swanson v. Shroat

• Decision Date: 03 May 1976
• Docket Number: No. 2--374A64,2--374A64
• Citation: 169 Ind.App. 80,345 N.E.2d 872
• Parties: Phillip J. SWANSON, by Everett C. Swanson, Jr., as next friend, Everett C. Swanson, Jr., Plaintiff-Appellant, v. John H. SHROAT and Joan Shroat, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 872

345 N.E.2d 872

169 Ind.App. 80

Phillip J. SWANSON, by Everett C. Swanson, Jr., as next friend, Everett C. Swanson, Jr., Plaintiff-Appellant, v. John H. SHROAT and Joan Shroat, Defendants-Appellees.

No. 2--374A64.

Court of Appeals of Indiana, Second District.

May 3, 1976.

David B. Hughes, Indianapolis, for plaintiff-appellant.

William K. Byrum, William F. Diehl, Fulmer, Byrum & Gagnon, Indianapolis, for defendants-appellees.

SULLIVAN, Judge.

Plaintiff-appellant Everett C. Swanson, Jr. (Swanson) appeals from the granting of summary judgment in favor of defendants-appellees John H. and Joan Shroat (Shroats). Swanson filed his complaint in 1970 seeking damages for medical and hospital expenses and for the loss of services of his 10 year old son Phillip, who fell from a tree in the Shroats' yard.

The granting of a motion for summary judgment is appropriate '. . . if the pleadings, depositions, answer 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.' Indiana Rules of Procedure, Rule 56(C). The burden is on the proponent of the motion to show that no genuine issues of fact exist, so in deciding whether to grant a summary judgment, facts set forth in the opponent's affidavit are taken as true, and depositions, admissions, answers to interrogatories, and testimony are liberally construed in favor of the opponent. Podgorny v. Great Central Insurance Co. (3rd Dist. 1974), Ind.App., 311 N.E.2d 640.

The pleadings, depositions and affidavits before the trial court, when construed in favor of Swanson, show that on August 14, 1968, Phillip was playing with a group of neighborhood children in the Shroats' yard and patio. The Shroat yard was a regular meeting place for the neighborhood children, but Joan Shroat did not supervise or quiet the children and did not place restrictions on the play in the yard. On the day of Phillip's fall, Joan Shroat was in the house, preparing to leave for vacation, and through the open windows could hear the children playing. Being busy, she just glanced out at them once in a while. In the rear of the house is a cement block patio with a maple tree at the southwest corner. South of the tree is a redwood fence. A picnic table was placed just north of the fence. On this particular day, the children were jumping from the fence, catching a limb of the tree, and swinging. While doing this, Phillip's hands slipped from the limb and he fell to the patio, causing injury.

On the basis of depositions of Joan Shroat, Everett Swanson and Maxine Swanson (Phillip's mother), the affidavit of Swanson's attorney, and argument of counsel in support of and opposition to the defendants' motion for summary judgment, the trial court granted summary judgment. The Entry of the court reads in appropriate parts as follows:

'The Court finds that this is an appropriate case for Summary Judgment under the Fort Wayne National Bank v. Doctor case (1971), 149 Ind.App. 365, 272 N.E.2d 876, in that Phillip Swanson was at most a social guest on Defendants' property and consequently is a licensee by permission.

The undisputed facts in the case show a complete lack of evidence of 'wilfullness' on the part of Defendants toward the plaintiff's son. The undisputed facts in this case fail to meet the positive wrongful act test; the wilful and wanton test; or the entrapment-affirmative control of the instrument test.

IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED that the Defendants' Motion for Summary Judgment be granted and judgment for Defendants be entered that the Plaintiff, Everett C. Swanson, Jr., take nothing by his complaint.'

In seeking reversal of the summary judgment, Swanson requests that we do several things:

1. Abolish the distinction between the duty owed by a land owner to an invitee and that owed to a licensee.

2. Acknowledge and articulate that even if a lesser duty of care exists as to an adult licensee than to an invitee, a higher duty is imposed as to children.

3. Hold that there are genuine issues of fact as to whether the injured child was an invitee or a licensee; as to whether this child was capable of appreciating the danger of the activity in which he engaged; as to whether the acts or omissions of Mrs. Shroat measured up to the duty owed; and as to whether the presence and arrangement of the fence, tree, patio and picnic table were inherently dangerous under the circumstances.

I

MERITORIOUS ARGUMENT FOR ABOLITION OF DISTINCTION BETWEEN

INVITEE AND LICENSEE MUST AWAIT REVIEW BY SUPREME COURT

It is believed that Swanson's argument for elimination of the distinction between invitees and licensees with respect to the duty owed by a landowner or occupant its meritorious. See Rowland v. Christian (1968), 70 Cal.Rptr. 97, 443 P.2d 561; Ann., 32 A.L.R.3d 508.

A recent Indiana Supreme Court decision, however, has impliedly recognized the long standing distinction. See Hammond v. Allegretti (1974), Ind., 311 N.E.2d 821. It would therefore seem somewhat presumptuous for this court to strike down the traditional distinction. Reconsideration of the Indiana law in this area is best left to our highest court in this case or in some future appeal in which, as here, the argument is squarely presented.

Our failure to abolish the distinction between invitees and licensees in this case, however, is not injurious to the position taken by Swanson because, as advocated by him, we find that under certain circumstances the conduct required of a possessor or owner in order to measure up to the standard of care required, is greater when a child licensee is present than when an adult licensee is on the premises.

II

WHILE A MINOR CHILD GUEST IS A 'MERE LICENSEE', THE PREMISES

OWNER MUST UNDER SOME CIRCUMSTANCES TAKE MORE CARE

TO PROTECT HIM FROM DANGER THAN HE WOULD

AN ADULT LICENSEE

In determining the duty which a landowner owes to one who comes upon his land, Indiana law has long recognized that the relationship between them is determinative. One who enters at the owner's invitation, express or implied, to transact business of mutual benefit to both, is an invitee, while one who enters for his own 'convenience, curiosity, or entertainment' is a licensee by permission, or a mere licensee. Brown v. Kujawa (1968), 142 Ind.App. 310, 234 N.E.2d 509.

Swanson asserts that the trial court erred in concluding as a matter of law that Phillip was a licensee. We can not agree. There can be no doubt that the injured boy here was a social guest or a licensee by permission. Social guests are classified as licensees in Indiana as a matter of law. Brown v. Kujawa, supra, Ft. Wayne National Bank v. Doctor (1971), 149 Ind.App. 365, 272 N.E.2d 876.

In Ft. Wayne National Bank v. Doctor, supra, the case relied upon by the trial court in granting summary judgment, this court held that in general the owner has no duty to a social guest to maintain the premises in a safe condition. The guest takes them as he finds them. In the Doctor case three exceptions to this general rule were enumerated: (1) where the owner commits a positive wrongful act which results in injury to the licensee; (2) where the owner acts wilfully or wantonly and thus causes the injury; or (3) where the owner creates a condition comparable to an entrapment and that condition causes injury. In granting the Shroats' motion for summary judgment, the trial court here held that the undisputed facts failed to meet any of these tests.

Swanson persuasively distinguishes Ft. Wayne National Bank v. Doctor. That case involved an adult, while a child was injured here. He further points to a long line of Indiana cases which have held that there are further exceptions to the general rule of non-liability which exceptions exist for the protection of children. The Shroats, on the other hand, argue that any exceptions which may have existed solely for children were eliminated by Ft. Wayne National Bank v. Doctor, supra, or, in the alternative, that even if there are such exceptions, Phillip does not fall within them. We agree with Swanson that premises owners are sometimes required to take more precautions to protect children, but we also agree with the Shroats that Phillip's injury was not occasioned by the breach of any duty owed to him.

It should be noted at the outset that we are dealing here only with the standard of care owed to a child licensee and with the conduct which measures up to that standard. Trespassers are not involved here, nor is the doctrine denominated 'attractive nuisance.'

The development of Indiana premises liability law regarding licensees, including children, has been uneven, and characterized by confusing terminology such as 'active-passive', 'positive wrongful acts', 'entrapment', 'willful and wanton', 'attractive nuisance', 'inherently dangerous condition', and 'last clear chance'. While Ft. Wayne National Bank v. Doctor, supra, swept away some of this unnecessary verbiage (see 272 N.E.2d at 880--882), the conduct which measures up to the requisite standard of care owed to a licensee remains unclear.

Tracing the development of this area of law, we find that early cases held that a premises owner would rarely be held liable to a licensee injured by an existing condition, since it was presumed that the licensee would recognize and avoid danger. Faris v. Hoberg (1892), 134 Ind. 269, 33 N.E. 1028; Thiele v. McManus (1891), 3 Ind.App. 132, 28 N.E. 327. This general presumption remains valid today, and reasonably so. The owner is not an insurer of the safety of licensees. Ft. Wayne National Bank v. Doctor, supra; Pallikan v. Mark (1st Dist. 1975), Ind.App., 322 N.E.2d 398; Standard Oil Co. of Indiana, Inc. v. Scoville (1961), 132 Ind.App. 521, 175 N.E.2d 711.

That is not to say, however, that a premises owner can never be held liable for injuries to licensees. Early ca...