Verplank v. Commercial Bank of Crown Point

Citation251 N.E.2d 52,18 Ind.Dec. 495,145 Ind.App. 324
Decision Date24 September 1969
Docket NumberNo. 668,No. 1,668,1
PartiesMildred VERPLANK, Appellant, v. COMMERCIAL BANK OF CROWN POINT, Appellee. A 99
CourtCourt of Appeals of Indiana

Oscar Strom, Angelo A. Buoscio, Gary, for appellant.

Dale E. Custer, Stults, Custer & Kuzman, Gary, for appellee.

COOPER, Judge.

This is an appeal from the Newton Circuit Court wherein the Court sustained the motion of the defendant-appellee for a summary judgment.

The record reveals that the plaintiff-appellant filed her complaint in three paragraphs, each praying for damages for her alleged injuries sustained by her when she drove to the defendant bank's place of buisness for the purpose of doing business there as its patron, parked her automobile on the parking lot provided by the bank for its customers, walked from the parking lot to the walkway going into the bank, and tripped and fell over a ridge consisting of the difference in the levels between the asphalt pavement of the parking area and the concrete walkway into the bank.

The first pleading paragraph of the complaint alleged negligence on the part of the defendant in permitting this ridge to exist. The second pleading paragraph of the complaint alleged the construction was intentionally so made, and that it was a nuisance. The third pleading paragraph of the complaint alleged that the defendant wilfully and wantonly permitted the hazard and nuisance to exist.

The defendant filed its answer in compliance with Rule 1--3 of the Rules of the Supreme Court of Indiana. Thereafter, what was denominated as the deposition of the plaintiff was taken and later filed in the cause. The case was set for trial by jury to begin on February 27, 1968. The record reveals that before the scheduled trial date, however, the defendant filed its motion for summary judgment and the same was set for argument on February 5, 1968. At the time of this hearing, the plaintiff filed her motion to strike the motion for summary judgment and her affidavit in support of her motion to strike. The plaintiff's motion to strike was overruled, the court took the motion for summary judgment under advisement, the deposition of the plaintiff was shown filed again, and subsequently on March 9, 1968, the court granted the motion for summary judgment and entered judgment for the defendant.

It appears that on April 2, 1968, the plaintiff filed her motion for a new trial, alleging therein that the judgment was not sustained by sufficient evidence, that it was contrary to law, and five other alleged errors, which in view of our result, need not here be discussed. It should be noted that the motion for new trial was filed before April 22, 1968, on which date the Supreme Court of Indiana amended its Rule 2--6 by adding thereto, that from and after April 22, 1968, a motion for new trial shall not be appropriate for raising error claimed by reason of the entering of a summary judgment. The motion for new trial was overruled and this appeal followed.

The defendant's motion for summary judgment and its summary of the facts in support thereof, are as follows:

'MOTION FOR SUMMARY JUDGMENT

'Comes now the defendant, Commercial Bank of Crown Point, and shows the court that the pleadings and depositions on file in this case reveal that there is no genuine issue as to any material fact in controversy between the parties, and defendant moves the court to grant it a judgment pursuant to Burns' Indiana Statute 2--2524.'

'SUMMARY OF FACTS

'That on August 20, 1964, defendant, Commercial Bank of Crown Point, was an Indiana corporation engaged in the banking business. Defendant owned and operated a branch bank office building at the northeast corner of Cleveland Street and Highway U.S. 30 in the community known as Independence Hill, Lake County, Indiana. (See rhetorical paragraphs 1 and 2 of plaintiff's complaint and defendants Answer thereto; Pages 1--2 of plaintiff's Deposition.)

'The bank building had a customer parking lot on the south side and a circular driveway around the bank. The parking lot and driveway were asphalt blacktop. There was a sidewalk leading from the parking lot-driveway to the front door of the bank. This sidewalk was concrete. (Plaintiff's Deposition, pages 3--6.)

'The level of the concrete sidewalk extended approximately 1 inch above the level of the driveway. (Plaintiff's Deposition, page 7.) On said August 20, 1964, at approximately 11:45 A.M., plaintiff drove to the bank to do some banking business. Plaintiff drove into the parking lot and parked her car south of the bank building. Plaintiff walked from her car across the parking lot-driveway to the concrete sidewalk. She tripped and fell over the 1 inch raise in the sidewalk. The rear of plaintiff's vehicle was parked about 15 to 20 feet from the place where plaintiff fell. (See plaintiff's Deposition page 2 and pages 6--11.) Plaintiff's fall occurred at about 11:45 A.M., and the sun was shining. As plaintiff walked from her car towards the bank her eyes were focused on the entrance to the sidewalk--that is, where the blacktop driveway ends and the concrete sidewalk begins. (See plaintiff's deposition pages 15--17.)

The plaintiff then filed her motion to strike the motion for summary judgment, alleging therein, in substance, that the defendant had not served a copy of the motion for summary judgment upon her, and then filed the Affidavit of the Plaintiff, Mildred Verplank in opposition to the motion for summary judgment, which affidavit reads as follows:

'Mildred Verplank, having been first duly sworn upon her oath deposes and says that on the 20th day of August, 1964, at or about 11:45 A.M., this plaintiff was enroute to the branch bank of the Commercial Bank of Crown Point for the purpose of doing business with said bank then situated on the Northeast corner of Cleveland Avenue and U.S. Highway 30.

'That she drove southward from her home at 4424 Connecticut Street, Gary, Indiana, and turned into the premises of said defendant bank on the east side of Cleveland Avenue where a parking area upon the premises of said defendant was provided for its customers, including this plaintiff.

'That as plaintiff parked the automobile she was driving on the premises of the defendant, she thereafter walked on the defendant's premises across said parking lot and driveway in the area and by the route provided by the defendant bank for entry into said bank to do business with said Commerical Bank of Crown Point.

'That said defendant had provided a walkway of concrete adjacent to the macadam driveway upon which driveway and concrete walkway it was necessary for her to proceed to arrive at the front entrance of said bank, which was for the use of its customers in entering the bank to do business with the defendant. That said plaintiff was proceeding to said bank to do business with it.

'The defendant had negligently created a nuisance by constructing a variance in the elevation between the driveway and the walkway, which had been permitted to exist since the construction of the bank building soon before August 20, 1964. That said rise or elevation existing in the pathway for customers of the bank to walk over was not readily discernible and although this plaintiff was looking where she was walking, it could not be readily seen there was a difference in elevation by reason whereof this affiant tripped over said elevation and fell headlong upon the concrete.

'Plaintiff was stunned and lay prone on the walkway for what seemed a long period of time.

'Said defendant has admitted that it negligently created and negligently permitted said nuisance to exist by filling in a short ramp at the place of the defect in its premises soon after the injuries had been caused to this plaintiff by defendant's negligence.

'Said defendant had admitted that it deliverately constructed said variation between that part of the route from the parking lot and across a driveway to the walkway at the junction with which plaintiff tripped and fell; that said defendant planned the construction in that manner for the protection of its building from automobiles passing along the driveway to its drive-up window. But said defendant, in protecting its building, negligently disregarded the safety of its patrons including this plaintiff, by creating such nuisance in the pathway used from the parking lot to the bank entrance by its patrons and customers, including this plaintiff.

'Plaintiff also states that other patrons of the defendant bank had tripped over said ridge prior to the plaintiff so doing and that the defendant had notice of such hazardous condition which it had created and permitted negligently to exist, and did not correct such nuisance and negligent condition until after the plaintiff was injured.

'The plaintiff has been informed and verily believes the statements in the foregoing paragraphs, all of which tryable issues she expects to prove at the time of trial.

'That plaintiff has suffered pain and disability from the day of said accident to the present time and her injuries are permanent.'

Then followed her signature and the jurat.

The trial court's amended judgment entry, made pursuant to Order of this Court, which instructed him to state his findings of fact and the grounds for sustaining the motion for summary judgment, omitting the caption and signature, reads as follows:

'Motion having been regularly made by the defendant for summary judgment in the defendant's favor on the ground that there is no genuine issue as to any material fact and that said defendant is entitled to judgment as a matter of law;

'Now, therefore, on considering defendant's said motion for summary judgment, the pleadings, plaintiff's discovery deposition and affidavit, and having heard oral argument and having considered authorities cited by the parties hereto and after deliberation having been had, the court now finds that there is no genuine issue as to any material fact between the parties. ...

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