Watson v. Ziegert

• Decision Date: 08 July 1993
• Docket Number: No. 50A04-9301-CV-17,50A04-9301-CV-17
• Citation: 616 N.E.2d 785
• Parties: Marty and Debbie WATSON, Appellants-Plaintiffs, v. Norma ZIEGERT, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 785

616 N.E.2d 785

Marty and Debbie WATSON, Appellants-Plaintiffs, v. Norma ZIEGERT, Appellee-Defendant.

No. 50A04-9301-CV-17.

Court of Appeals of Indiana,

Fourth District.

July 8, 1993.

Charles A. Sweeney, Jr., Jeffrey J. Stesiak, Sweeney & Pfeifer, South Bend, for appellants-plaintiffs.

R. Kent Rowe, R. Kent Rowe, III, Rowe, Foley & Associates, South Bend, for appellee-defendant.

CONOVER, Judge.

Plaintiffs-Appellants Marty Watson (Watson) and Debbie Watson appeal the grant of summary judgment in favor of Defendant-Appellee Norma Ziegert.

We affirm.

Watson raises the following restated issue for our review:

whether the trial court erroneously found a genuine issue of material fact did not exist.

On February 21, 1991, Watson went to Ziegert's home, at her invitation, to dismantle a forty foot high television tower. Although not in the business of dismantling television towers, Watson had dismantled fifteen to twenty such structures in the past. Before climbing the tower, Watson shook it and observed that it "didn't move hardly." (R. 99). However, he did notice the tower was old and had surface rust on it. He also noticed a piece of steel attached to the bottom of the tower and a rope running from the tower to the chimney of Ziegert's house, which he assumed were in place to brace the tower. After making these observations, Watson climbed on the roof of the house and shook the tower again. The tower moved "a little," which Watson felt was normal. (R. 101). As a precaution, Watson attached a rope to the tower and had his assistant tie the rope to a tree.

Watson proceeded to climb further up the tower, hook up his safety belt, and remove the four foot section on top. While removing the top section, he felt the tower sway in a manner he considered to be normal for such a tall structure. As Watson was attempting to remove the next section of the antenna, the tower began to lean. Immediately thereafter, Watson and the television antenna tower fell onto a neighbor's roof. As a result of the fall, Watson sustained serious physical injuries.

Prior to the date of the accident, Ziegert's son had informed her that he felt the tower was dangerous because it was old and rusted. Ziegert claims she passed this information along to Watson; he claims she made no mention of the condition.

Watson filed a complaint alleging Ziegert negligently and carelessly maintained her property in a manner which failed to protect Watson from injury. He requested compensation for his losses due to physical and psychic injuries and costs. His wife alleged loss of consortium. Ziegert initially filed her answers to the complaint, and later filed a motion for summary judgment. Watson filed a motion requesting the trial court to publish the deposition of Ziegert, as well as his own deposition. The trial court granted the motion for publication. The court later granted Ziegert's summary judgment motion on the basis there were no material facts at issue and Ziegert was entitled to judgment as a matter of law.

Watson contends the trial court erred in ruling there were no material facts at issue. He points to a conflict in the evidence over whether Ziegert informed him of the tower's age and rusty condition. He notes Ziegert's summary judgment motion was based on Douglass v. Irvin (1988), Ind.App., 531 N.E.2d 1214 (Douglass I ), a case holding a property owner owes no duty to an invitee who has superior knowledge of the danger presented by a condition on the property owner's premises. He also points out Douglass I was vacated by our supreme court in Douglass v. Irvin (1990), Ind., 549 N.E.2d 368 (Douglass II ).

The purpose of summary judgment is to terminate litigation about which there can be no material factual dispute and which can be resolved as a matter of law. United Farm Bureau Mutual Insurance Co. v. Schult (1992), Ind.App., 602 N.E.2d 173, 174, reh. denied. A fact is "material" for summary judgment purposes if it helps to prove or disprove an essential element of the plaintiff's cause of action. Slay v. Marion County Sheriff's Dept. (1992), Ind.App., 603 N.E.2d 877, 884, trans. denied. When reviewing the grant of a motion for summary judgment, this court stands in the shoes of the trial court. Horn v. Klotz (1992), Ind.App., 603 N.E.2d 870, 872.

In Douglass I and Douglass II, a landowner's neighbor was summoned by the police to join them in a search of the absent landowner's home after a burglar alarm went off in the home. The search was hampered by the darkness of the night and the failure of the landowner's lights due to a power outage. The neighbor, classified in the case as an invitee, entered the home through the landowner's patio door, tripped over a plant, and fell into a hot tub. He brought a premises liability action to recover for the resulting injuries. The trial court granted summary judgment in favor of the landowner on the basis that no duty was owed to the invitee.

In Douglass I, we reversed the trial court. In so doing, the court held material issues of fact existed as to whether the landowner was relieved of any duty owed to the invitee. 531 N.E.2d at 1218. The basis for the court's holding was its belief that a landowner is relieved of duty when an invitee possesses knowledge equal or superior to that of the landowner concerning the hazard causing injury. Id. at 1217.

In Douglass II, our supreme court vacated the Douglass I decision. The court held proof of equal or superior knowledge of danger to an invitee is not a prerequisite element of, or limitation upon existence of, the landowner's duty of care. 549 N.E.2d at 370-371. The court further held:

While the comparative knowledge of landowner and invitee is not a factor in assessing whether the duty exists, it is properly taken into consideration in determining whether such a duty was breached. Separate evidence of disparate knowledge is not required to prove...