Preview:

FOR PUBLICATION

ATTORNEYS FOR APPELLANTS: REED S. SCHMITT DAVID G. HARRIS Frick Powell Whinrey Cravens and Schmitt, LLP Evansville, Indiana

ATTORNEYS FOR APPELLEE: ERIC D. JOHNSON JOHN B. DRUMMY PFENNE P. CANTRELL Kightlinger and Gray, LLP Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
EDWARD and JAYNE RHOADES, Appellants-Plaintiffs, vs. HERITAGE INVESTMENTS, LLC and TIMOTHY E. MOLL, Appellees-Defendants. ) ) ) ) ) ) ) ) ) )

No. 82A01-0502-CV-54

APPEAL FROM THE VANDERBURGH SUPERIOR COURT The Honorable Mary Margaret Lloyd, Judge Cause No. 82D03-0205-CT-2158

December 29, 2005

OPINION - FOR PUBLICATION

KIRSCH, Chief Judge

Edward and Jayne Rhoades appeal the trial court's grant of summary judgment in favor of Heritage Investments, LLC, and Timothy E. Moll (collectively "Heritage"). The sole issue for our review is whether the trial court properly granted Heritage's summary judgment motion. We affirm. FACTS AND PROCEDURAL HISTORY 1 Edward Rhoades and John Maier met regularly to walk at Eastland Mall in Evansville. During the men's walk on Saturday, May 20, 2000, Maier mentioned that Heritage Investments had renovated a building that it was going to either lease or sell. Maier, who had been a long-time friend of Heritage Investments co-owners Timothy and Fred Moll, asked Rhodes to accompany him to look at the building. When Rhoades agreed, Maier contacted Timothy Moll that morning and arranged to meet him at the building. Rhoades did not know why Maier wanted to look at the building. Rhoades, who had driven Maier to the mall earlier that morning, drove Maier to the building after their walk. Rhoades walked into the building with Maier, and Moll was waiting inside. Rhoades was neither invited into the building nor took part in the

conversation between Maier and Moll. On the other hand, Rhoades was not asked to leave and believed he had permission to be in the building. Rhoades noticed that the building was big, empty, and dimly lit. He noticed no more than two single-bulb drop lights. Most of the light was coming from the windows at the front of the building. At some point, Rhoades followed Maier and Moll up the stairs to the second floor. No

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one asked Rhoades to go upstairs; he was just curious to see what was up there. The staircase in the building, which had recently been rebuilt, was designed to accommodate a steep angle, and included three to four steps up, an angled landing, and several remaining steps up to the second floor. Rhoades noticed before he went up the stairs that one side of the stairwell consisted of open studs, and the other side was a brick wall. Neither the stairway nor the landing had handrails or a guardrail. Rhoades was afraid that he might fall through the studs, so he hugged the brick wall as he ascended the staircase. Rhoades felt uncomfortable on the second floor because of the lack of guardrails, the poor lighting, and his fear of heights. He decided to go back downstairs before Maier and Moll. Rhoades hugged the brick wall and descended the stairs to the landing without incident. When Rhoades was on the landing, he thought that he had reached the bottom of the stairs. He took a step onto what he believed was the ground floor and fell off the landing. Rhoades broke his arm and his glasses. Rhoades filed a negligence action against Heritage. Heritage filed a summary judgment motion, which the trial court granted. Specifically, the court concluded that because Rhoades entered the building for his own curiosity, he was a licensee who took the property as he found it. The court also concluded that Heritage did not willfully or wantonly injure Rhoades or act in a manner to increase his peril and that it did not breach its duty to warn Rhoades of any latent danger on the premises because Rhoades recognized from the moment he entered the building that it was a work area, and he noticed all of the alleged defects before falling. Rhoades appeals.
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We held oral argument in Indianapolis on October 5, 2005.

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DISCUSSION AND DECISION Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Dunifon v. Iovino, 665 N.E.2d 51, 54 (Ind. Ct. App. 1996), trans. denied, (citing Ind.Trial Rule 56(C)). When reviewing the trial court's decision on a summary judgment motion, we stand in the shoes of the trial court. Id. at 55. The trial court's grant of summary judgment is clothed with a presumption of validity. Id. The law is well established that a person entering upon the land of another comes upon the land as an invitee, a licensee, or a trespasser. Id. The person's status on the land defines the nature of the duty owed by the landowner to the visitor. Id. A landowner owes the highest duty of care to an invitee, that duty being to exercise reasonable care for the invitee's protection while he is on the premises. Taylor v. Duke, 713 N.E.2d 877, 881 (Ind. Ct. App. 1999). Landowners owe a licensee the duty to refrain from willfully or wantonly injuring him or acting in a manner to increase his peril. Id. This includes the duty to warn a licensee of any latent danger on the premises of which the landowner has knowledge. Id. Finally, the duty owed to a trespasser is the duty to merely refrain from wantonly or willfully injuring him after discovering his presence. Id. Thus, the first step in resolving a premises liability case is to determine the plaintiff's visitor status. Id. The visitor status then defines the duty owed from the landowner to the visitor. Id. A person's status on the land, along with the duty owed, is a matter left for determination by the trial court, not the jury. Id. In Burrell v. Meads, 569 N.E.2d 637 (Ind. 1991), our supreme court undertook a
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comprehensive review of premises liability law in Indiana.

The Burrell court formally

adopted the "invitation test" as the analytical framework for deciding who is an invitee. Id. at 642. Using the adopted framework, the court announced three categories of individuals entitled to invitee status when on a landowner's property: the public invitee, the business visitor, and the social guest. Id. Licensees and trespassers are defined as those who enter the land of another for their own convenience, curiosity, or entertainment and take the premises as they find them. Taylor, 713 N.E.2d at 881. Unlike trespassers, however, licensees have a privilege to enter or remain on the land by virtue of the landowner's or occupier's permission or sufferance. Id. This court addressed the differences between an invitee and a licensee in McCormick v. State, 673 N.E.2d 829, 836 (Ind. Ct. App. 1996). There, Paul McCormick died in a boating accident at Morse Reservoir when he and his boat went over a spillway near the dam. Paul's widow, Nora, in her capacity as the personal representative of Paul's estate, sued the Water Company, which owned the reservoir, and the State, which regulates various matters relating to it. The trial court granted summary judgment in favor of both defendants, and Nora appealed. She argued that Paul was a public invitee of the Water Company at the time of the accident. The Water Company countered that he was a licensee. We noted that an invitee is a person who is invited to enter or to remain on another's land whereas a licensee is privileged to enter or to remain on the land by virtue of permission or sufferance. Thus, in the determination of whether an individual is an invitee or a licensee, the distinction between the terms "invitation" and "permission" becomes critical. Id.

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We further noted that the comments to the Restatement (Second) of Torts

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