Tyler v. Nolen

• Decision Date: 16 June 1969
• Docket Number: No. 1,No. 1168A186,1168A186,1
• Citation: 144 Ind.App. 665,248 N.E.2d 186
• Parties: Alice TYLER, Appellant, v. Richard James NOLEN, d/b/a Nolen Pumbing and Heating, Appellee
• Court: Indiana Appellate Court

Page 186

248 N.E.2d 186

144 Ind.App. 665

Alice TYLER, Appellant, v. Richard James NOLEN, d/b/a Nolen Pumbing and Heating, Appellee.

No. 1168A186.

Appellate Court of Indiana, Division No. 1.

June 16, 1969.

David S. Stevens, Nick T. Stepanovich, Stepanovich & Stevens, East Chicago, for appellant.

Spangler, Jennings, Spangler & Dougherty, Gary, Chester, Clifford, Hoeppner & Houran, Valparaiso, for appellee.

LOWDERMILK, Presiding Justice.

Plaintiff-appellant brought an action against defendant-appellee to recover damages for personal injuries sustained as a result of appellant's falling down an open stairway in a building owned by the appellee. The acts of negligence as alleged in appellant's complaint are:

'(3) That at the time aforesaid, there was a stairway leading from the first floor of said premises to the basement, and at the top of said stairway there was located a safety gate which was not closed, fastened or otherwise secured.

'(4) That on said day, Defendant, well knowing the condition of the premises, negligently left the aforesaid stairway unguarded, unlighted and without any sign or warning, in consequence whereof, Plaintiff, while on said premises, fell down said stairway.

'(5) That at the time, the aforesaid stairway was negligently designed, maintained or constructed.'

Appellee filed his answer in three paragraphs, the first being in general denial and the remaining paragraphs alleging the defenses of incurred risk and assumption of risk.

At the close of appellant's evidence, the appellee filed his motion for a directed verdict which motion was granted by the trial court.

The jury then rendered a verdict in favor of appellee and judgment was entered thereon. Appellant thereafter filed her motion for new trial which, in substance, alleges that the trial court erred in sustaining appellee's motion for directed verdict and instructing the jury to find for appellee. The motion was overruled and this appeal followed.

Summarizing the facts most favorable to the appellant, the record discloses that one Helen Pollack, who resided on the second floor of appellee's business premises, occasionally cleaned appellee's offices and place of business. On some occasions the said Helen Pollack, when she was unable to work, would employ the appellant to clean appellee's offices and would pay appellant $5 or $10 for this work out of her own funds, which arrangements were known by appellee and adhered to by him.

On the day of appellant's injuries she was in the course of cleaning the offices at the request of the said Helen Pollack, when appellee returned to his office to do some work after regular business hours and observed appellant performing the services. He asked her what she was doing there, to which she replied that she was cleaning at the request of Helen Pollack. He then permitted her to continue cleaning without objection or reprimand while he was busy studying blueprints in his private office.

Appellant had been admitted into the building by a son of Helen Pollack, while another son of Helen Pollack, Johnny Furto, was supposed to stay with appellant while she was on appellee's premises. There is no evidence that Johnny Furto was an employee of the appellee and no evidence that appellee knew of his presence on the premises.

Prior to appellee's returning to work in the evening, appellant walked from the small office where she was cleaning to the wash room in the rear of the shop portion of the premises, for water to use in her work. At that time the lights in the shop portion of the premises were on, and she observed Johnny Furto cutting off some pipe. She could see the stairway and the partition adjoining thereto.

After appellee returned to work appellant again walked to the wash room in the shop portion of the premises to empty some water, by taking a route which led through the larger office and a smaller, private office where appellee was working. The lights in each of these offices were on, which provided sufficient light for her on the way to the wash room. Although the remainder of the shop portion of the premises was dark and shadowy, she decided to make her return to the office in the front portion of the premises by taking a different route, which led past the open stairway and partition, so as not to disturb the appellee at his work in the small office.

It was on this second trip and return from the wash room after disposing of dirty water that appellant thought she was walking by the partition and instead walked into the open stairway.

Appellant testified that she did not know there was a gate to close at the head of the stairs and the first she knew that she was not walking on the proper side of the partition was when she felt herself step into space and fall.

We are called upon to first determine appellant's status while on the property.

She had been asked to come on the property and clean the office by one Helen Pollack, who appellee contends was not an employee. Appellee never paid appellant; she was paid by Helen Pollack.

When appellee returned to his office after regular working hours and found appellant cleaning his office, he permitted her to continue and thereby granted an implied permission for her to be on the premises.

This court is of the opinion that appellant was, if not an employee, an invitee, and had a legal right to be on the premises and to continue on the premises after the appellee conversed with her.

The case of Hollowell v. Greenfield (1966), Ind.App., 216 N.E.2d 537, defines 'invitee' as follows:

'* * * a person who proceeds on the premises of another with the express or implied invitation of the owner or occupant to do some act which is of advantage to such owner or occupant or of mutual advantage to both.'

Assuming, without deciding, that appellee was negligent as charged in appellant's second amended complaint for failure to properly safeguard his premises for appellant's protection, we...