Wright v. International Harvester Co., Inc.

• Decision Date: 27 September 1988
• Docket Number: No. 29A02-8707-CV-286,29A02-8707-CV-286
• Citation: 528 N.E.2d 837
• Parties: Regina A. WRIGHT, Benjamin Wright, b/n/f Regina Wright, and Virgil Wright, Appellants (Plaintiffs Below) v. The INTERNATIONAL HARVESTER COMPANY, INC., Wright Brothers Contracting Company, Inc., Kenneth Wright and Karen Wright, Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 837

528 N.E.2d 837

Regina A. WRIGHT, Benjamin Wright, b/n/f Regina Wright, and Virgil Wright, Appellants (Plaintiffs Below) v. The INTERNATIONAL HARVESTER COMPANY, INC., Wright Brothers Contracting Company, Inc., Kenneth Wright and Karen Wright, Appellees (Defendants Below).

No. 29A02-8707-CV-286.

Court of Appeals of Indiana Second District.

Sept. 27, 1988.

Rehearing Denied Dec. 16, 1988.

Gary P. Price, Lewis, Kappes, Fuller & Eads, Indianapolis, John S. Pearce, Pearce & Howard, Noblesville, for appellants.

Jim A. O'Neal, Ann M. Cassidy, Ice, Miller, Donadio & Ryan, Indianapolis, for appellees.

SHIELDS, Presiding Judge.

Plaintiffs Virgil, Regina, and Benjamin Wright brought suit against Karen and Kenneth Wright, Wright Brothers Contracting Company, Inc., and International Harvester to recover damages they suffered in an accident occurring on Ken and Karen's property involving a run-away International Harvester tractor. The trial court granted summary judgment in favor of Ken and Karen on Regina's claim and Regina appeals.

We reverse.

FACTS

Regina Wright's husband, Virgil, was a salaried employee of a contracting company owned by his brother Ken Wright. Virgil worked both at the company shop and at Ken and Karen's home. Virgil's normal working hours were from 8:30 a.m. until 5:00 p.m. Regina worked for United Parcel Service and her starting time varied from 5:00 p.m. to 5:30 p.m. On the days when Regina and Virgil both worked, Regina customarily took their children, seven-year-old Rusty and five-year-old Benjamin, to Virgil's workplace, whether at Ken and Karen's house or the company shop, at approximately 4:45 p.m. Virgil would watch the children until his work was done.

On the day of the accident, Virgil was working at Ken's house, located near Eagle Creek Reservoir. He was constructing steps on the hill leading down to the reservoir by joining railroad ties and filling them with brick. Virgil used Ken's tractor to transport rakes and shovels up and down the hill. Virgil customarily would park the tractor on a flat surface, either at the bottom of the hill or at the top of the hill. However, on that day, Virgil parked the tractor on the hill, midway between the crest and the reservoir. He backed it up beside the spot where he was working, turned it off, and left it in gear. He did not see a parking brake, so he piled dirt up in front of the wheels to "chock" them and prevent the tractor from rolling down the hill.

About 2:30 p.m. Regina, her mother-in-law, and the two children arrived at Ken and Karen's home. Regina's mother-in-law drove Regina and the children to Ken's and then was going to drive Regina to pick up Regina's car where it was being serviced. Regina was then going to drive her own car to work. The accident occurred five to ten minutes after their arrival.

At the time of the accident, Regina, her mother-in-law, and Ken were standing at the top of the hill engaged in conversation. Virgil was standing on the hill, near the tractor. While nobody was watching, Benjamin mounted the tractor and moved the gear-shift lever out of gear. The tractor began to roll down the hill toward the reservoir.

When Regina saw the tractor moving with her son on it she ran in front of it, positioning herself between the two front wheels, and stretching out her arms in an attempt to stop the tractor from continuing down the hill. She knew the tractor was six feet long, taller than her waist, weighed many times her own weight, that it was increasing in speed, and that it could seriously injure anyone in its path.

Meanwhile, Virgil got on the mower deck and held onto Benjamin. Virgil intended either to engage the brake to prevent the tractor from entering the water or to lift the child out of the seat. He was, however, distracted by Regina's presence in front of the tractor. Virgil and Ken yelled at Regina to get out of the way. As she jumped to the side of the tractor, the tractor ran over her ankle, causing the injury for which she has sued. The tractor proceeded down the hill where it turned over onto the pier. Virgil pulled Benjamin from under the tractor as the pier collapsed.

Although Ken admitted he considered it dangerous to park the tractor on an incline as Virgil had parked it the day of the accident, Virgil had seen Ken park it that way on prior occasions. Ken had given Virgil's children rides on the tractor before the day of the accident and had told them to stay away from the tractor when it was running or moving.

Regina admitted she could see the tractor from where she was standing while talking to Ken and her mother-in-law at the top of the hill. Neither Regina nor Virgil had warned the children to stay away from the tractor. Regina and Virgil both acknowledge that, at the time of the accident, it was their responsibility to supervise and take care of their children while they were on Ken and Karen's property.

ISSUES

1) Whether genuine issues of material fact exist as to Regina's status on Ken and Karen's premises;

2) Whether Ken and Karen may be held liable for Regina's injuries through application of the "rescue doctrine"; and

3) Whether Regina was contributorily negligent as a matter of law in engaging in an attempt to rescue her son from the runaway tractor?

DISCUSSION

Regina's status on the premises is immaterial and, therefore, the existence of disputed facts concerning her status is inconsequential.

For a visitor to recover damages from a landowner for injuries sustained while on the homeowner's premises, there must be proof that the homeowner breached a duty owed to the visitor and that this breach proximately caused the visitor's injuries. The duty owed by a homeowner to a visitor depends upon the visitor's status, which depends upon the purpose of the visit at the time of the injury. Mullins v. Easton (1978), 176 Ind.App. 590, 376 N.E.2d 1178. If the visitor has a purpose that is related to the occupant's pecuniary interest or advantage, an invitation to use the premises is inferred, and a duty of reasonable care is imposed on the occupant.

If, however, the visitor is on the premises for her own pleasure or convenience, the visitor is a licensee. Fleisher v. Hebrew Orthodox Congregation (1987), Ind.App., 504 N.E.2d 320; Mullins v. Easton (1978), 176 Ind.App. 590, 376 N.E.2d 1178. A homeowner's only duties to a licensee are to refrain from willfully or wantonly injuring the licensee, Gadboury v. Ireland Road Grace Bretheren, Inc. (1983), Ind., 446 N.E.2d 1310; Great Atlantic & Pacific Tea Co. v. Wilson (1980), Ind.App., 408 N.E.2d 144, and to warn the licensee of any latent danger on the premises of which the owner has knowledge. Martin v. Shea (1984), Ind., 463 N.E.2d 1092.

When this case is analyzed in the context of the duty owed by Ken and Karen to Regina, the trial court did not err in granting the motion for summary judgment. If Regina is an invitee, and Ken and Karen owe her a duty of reasonable care pertaining to their premises, her act of placing herself in front of the moving tractor constitutes contributory negligence as a matter of law. If she is a licensee, her recovery is barred by the lack of any genuine issue of fact. There is no allegation that Ken and Karen willfully or wantonly injured Regina, and the facts unequivocally establish her injuries were caused by her contact with a patent hazard.

However, if the case is analyzed in the context of the duty owed by Karen and Ken to Benjamin, the trial court erred in its grant of summary judgment because a genuine issue of material fact exists as to Regina's status as a rescuer.

Regina argues, citing Neal v. Home Builders (1953), 232 Ind. 160, 111 N.E.2d 280, ¹ that Ken and Karen breached the duty they owed Benjamin and, accordingly, may be held liable for the injuries Regina sustained in attempting to rescue him. Ken and Karen, also citing Neal, contend Benjamin is a licensee and that they did not breach the duty they owed him as a licensee.

Neal acknowledges:

The general rule is that no different or higher duty exists with respect to an infant trespasser than would exist in the case of an adult trespasser, so that ordinarily there is no duty toward an infant trespasser except to refrain from willful or wanton injury. Accordingly, it has been held that ordinarily there is no duty to anticipate the presence of infant trespassers, to keep a lookout for them, to guard against their intrusion, or to keep property in such safe, proper, or particular condition as not to endanger them if they trespass thereon. Infant trespassers ordinarily take the premises as they find them.

Id. at 170, 111 N.E.2d at 285-86 (quoting 65 C.J.S. Negligence Sec. 27, at 450-51).

The Neal court then discussed exceptions to the general rule, one of which is relevant to the present case. A duty to use reasonable care is imposed upon "one who maintains something dangerous to children and so exposed that there is a likelihood of their coming in contract [sic] with, and being injured by * * * it, notwithstanding they may be trespassers," Neal at 172, 111 N.E.2d at 287 (quoting 65 C.J.S. Negligence Sec. 28, at 453-54); see also Wozniczka v. McKean (1969), 144 Ind.App. 471, 247 N.E.2d 215 ["a person exposing dangerous articles or instrumentalities on his premises in such a manner that children (licensees) are likely to come in contact therewith to their...