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FOR PUBLICATION

FILED
Jun 20 2008, 8:52 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: JOHN R. HELM

ATTORNEYS FOR APPELLEE: WILLIAM H. KELLEY SHANNON L. ROBINSON Kelley Belcher & Brown Bloomington, Indiana

Schreckengast Helm & Cueller
Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
) ) Appellant-Plaintiff, ) ) vs. ) ) JOHNSON COUNTY BOARD OF ) COMMISSIONERS, EDINBURGH COMMUNITY) SCHOOL CORPORATION, TOWN OF ) EDINBURGH, and MARIO MANZINI, d/b/a ) MARIO MANZINI ENTERTAINMENT ) AGENCY, ) ) Appellees-Defendants. ) PAULA ANN YATES,

No. 41A01-0801-CV-6

APPEAL FROM THE JOHNSON SUPERIOR COURT The Honorable Kim Van Valer, Judge Cause No. 41D03-0604-PL-29

June 20, 2008 OPINION - FOR PUBLICATION BARNES, Judge

Case Summary Paula Yates appeals the trial court's grant of summary judgment in favor of the Edinburgh Community School Corporation ("the School Corporation") in her personal injury negligence action against the School Corporation and others. We reverse. Issues The restated issues before us are: I. whether the trial court correctly concluded that the School Corporation owed no duty to Yates; and whether Yates was contributorily negligent as a matter of law. Facts In the spring of 2005, the Town of Edinburgh ("the Town") decided to host a circus, to be put on by the Kelly Miller Circus ("the Circus"). 1 The hope was to raise some money for the Town's parks and recreation department. The Town decided that it wanted to hold the Circus on a plot of land known as "School Hill." App. p. 265. The School Corporation owns this land. A school used to be located on top of this small plateau, but the building was torn down many years ago. However, a set of stairs that used to lead to the school still goes to the top of one side of School Hill. The only other way to get to the top of School Hill is to ascend a grassy incline. To use School Hill, the Town executed a "Facility Usage Request" with the School Corporation. Id. The request

II.

1

Yates originally incorrectly named Mario Manzini Entertainment Agency as the circus owner; she later amended her complaint to add Kelly Miller Circus as the proper defendant and Mario Manzini was dismissed as a defendant. The parties, however, still list Mario Manzini as a defendant on their briefs.

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gave the Town permission to use School Hill on May 10, 2005, for the express purpose of hosting a circus with an expected attendance of "lots of people." Id. The Town did not pay the School Corporation. Yates decided to attend the Circus. She parked on a street near the stairs, and ascended the stairs without incident. The stairs have one railing down the middle, but no side rails. The last step at the bottom, before the sidewalk, is considerably longer than the rest of the steps. There is no working lighting near the stairs. When Yates left the Circus, dusk was approaching and she was carrying her three-year-old grandson. When she reached the last, extended step of the stairs, she did not consciously realize there was another dropoff to the sidewalk and/or did not see the dropoff. This apparently caused her to fall, resulting in a broken toe and alleged lingering hip and back pain. On April 20, 2006, Yates filed suit against the School Corporation, the Town, the Circus, and the Johnson County Board of Commissioners, who later were dismissed from the action. On April 9, 2007, the School Corporation moved for summary judgment, contending that it owed Yates no duty or, in the alternative, that Yates was contributorily negligent as a matter of law. The Town filed its own motion for summary judgment on May 4, 2007. On November 7, 2007, the trial court granted the School Corporation's motion for summary judgment and denied the Town's motion. Yates now appeals. 2

2

The Town had sought certification of the denial of its summary judgment motion for interlocutory appeal. The trial court certified its ruling for interlocutory appeal, but this court declined to accept jurisdiction of the case. Yates filed a motion with this court requesting consolidation of this appeal with the Town's appeal. Because we will not be considering an interlocutory appeal by the Town, the motion requesting consolidation is moot.

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Analysis Our review of a grant of summary judgment is whether there are genuine issues of material fact, and whether the moving party is entitled to judgment as a matter of law. Rood v. Mobile Lithotripter of Indiana, Ltd., 844 N.E.2d 502, 506 (Ind. Ct. App. 2006). We construe all evidence in favor of the party opposing summary judgment, and all doubts as to the existence of a material issue must be resolved against the moving party. Id. We must carefully review a grant of summary judgment in order to ensure that a party was not improperly denied his or her day in court. Reeder v. Harper, 788 N.E.2d 1236, 1240 (Ind. 2003). Where, as here, a trial court enters findings and conclusions with a summary judgment order, they do not bind us, although they may facilitate appellate review and offer valuable insight into the trial court's rationale for its decision. Turner v. Stuck, 778 N.E.2d 429, 431 (Ind. Ct. App. 2002). We will affirm summary judgment if sustainable upon any theory or basis found in the record upon appeal. Id. The tort of negligence has three elements: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty; and (3) injury to the plaintiff resulting from the defendant's breach. Id. at 385. Summary judgment is appropriate if the undisputed material evidence negates one of these elements. Id. Summary judgment, however, is "rarely appropriate" in negligence cases. Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind. 2004). "This is because negligence cases are particularly fact sensitive and are governed by a standard of the objective reasonable person--one best applied by a jury after hearing all of the evidence." Id.

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I. Premises Liability--Duty The trial court specifically found that the School Corporation owed no duty to Yates. The question of whether a duty is owed in premises liability cases depends primarily upon whether the defendant was in control of the premises when the accident occurred. Beta Steel v. Rust, 830 N.E.2d 62, 70 (Ind. Ct. App. 2005). "The rationale behind this rule `is to subject to liability the person who could have known of any dangers on the land and therefore could have acted to prevent any foreseeable harm.'" Id. (quoting Rhodes, 805 N.E.2d at 385). Although whether a duty exists usually is a question of law, the existence of a duty sometimes depends upon underlying facts that require resolution by the trier of fact, and this may include questions regarding who controlled property at the time and place of an accident. Id. "Possession and control of property for premises liability purposes has been described as a question of fact involving occupation and intent to control the particular area where the injury occurred." Id. The School Corporation argues extensively that it gave up possession and control of School Hill to the Town for the duration of the Circus. The trial court specifically found that that was the case. This position, however, is difficult to reconcile with the School Corporation's answer to an interrogatory question posed by Yates. Yates

specifically asked, "Was the [School Corporation] in control, possession and ownership of the walkway at the time of the alleged occurrence?" Corporation responded: The Edinburgh Community School Corporation is and was in control of the entire property on which the circus was held. However, the path that the plaintiff took was not the natural 5 App. p. 94. The School

"walkway" to exit the circus site. The "walkway" to the parking lot or to the street would have been to the southeast. The plaintiff walked around the side and behind the circus to the northwest to a steeper part of the hill. Id. (emphasis added). The first sentence seems to concede that the School Corporation had possession and control of all of School Hill, including the stairs, for premises liability purposes. The rest of the answer seems more directed to whether Yates was

contributorily negligent in using the stairs, or perhaps to there being no breach of any duty to Yates. This interrogatory answer alone appears to create a genuine issue of fact as to whether the School Corporation controlled School Hill and the stairs at the time of Yates's fall. Even without this statement there are reasons to conclude the School Corporation owed a duty to Yates. Actual physical possession of property at the precise moment an accident happens is not always dispositive on the question of "control" for premises liability purposes, if there was evidence that another party was in a better position to prevent the harm that occurred. See Beta Steel, 830 N.E.2d at 71; Rhodes, 805 N.E.2d at 386. Here, the School Corporation built and was in charge of maintaining the stairs. If the stairs were unsafe to climb or descend, because of faulty design, a lack of handrails, or lack of lighting, the School Corporation was in the best position to remedy that situation. 3 See Beta Steel, 830 N.E.2d at 71 (holding that although landowner had ceded direct control over electrical control room to independent contractor at time of fatal

3

These alleged faults would go to whether the School Corporation breached its duty; we offer no opinion on that question, but simply note that these are the faults that Yates alleges.

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accident caused by a faulty electrical cabinet, landowner still owed duty to deceased individual because it had control over design and installation of the electrical cabinet). The School Corporation also contends that any danger posed by the stairs was not latent but obvious, claiming that Yates was or should have been aware of the stairs' lack of side railings, the extended length of the last step, and the lack of lighting. Although not expressly making the argument on appeal, this contention is necessarily connected to the School Corporation's argument before the trial court that Yates was a licensee on the property when she fell. The nature and extent of a landowner's duty to persons coming on the property is defined by the visitor's status as an invitee, licensee, or trespasser. Rhoades v. Heritage Inv., LLC, 839 N.E.2d 788, 791 (Ind. Ct. App. 2005), trans. denied. This court in the past has said that a person's status on the land is a matter left for determination by a court, not the jury. Id.; but see Duffy v. Ben Dee, Inc., 651 N.E.2d 320, 322 (Ind. Ct. App. 1995) (holding that plaintiff's status on land as an invitee, licensee, or trespasser "is a question of fact not determinable at the summary judgment level"), trans. denied. Our supreme court very recently clarified that a person's status on the land may turn on factual issues that must be resolved by the trier of fact and that such issues may preclude summary judgment, in accord with our holding in Duffy and contrary to other cases, such as Rhoades. See Kopczynski v. Barger, No. 88S05-0710CV-423, slip op. pp. 3-4 (Ind. June 4, 2008). The highest duty of care is owed to an invitee; that duty being to exercise reasonable care for the invitee's protection while he or she is on the premises. Rhoades, 839 N.E.2d at 791. As to a licensee, the duty is to refrain from willfully or wantonly 7

injuring him or her or acting in a manner to increase his or her peril; this includes the duty to warn a licensee of any latent (non-obvious) danger on the premises of which the landowner has knowledge. Id. Finally, the duty owed to a trespasser is the duty merely to refrain from wantonly or willfully injuring him or her after discovering his or her presence. Id. An invitee is a person who is invited to enter or to remain on another's land. Id. at 792. There are three categories of invitee: the public invitee, the business visitor, and the social guest. Id. at 791 (citing Burrell v. Meads, 569 N.E.2d 637, 642 (Ind. 1991)). Licensees and trespassers are persons who enter the land of another for their own convenience, curiosity, or entertainment and take the premises as they find them. Id. "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. In determining whether an individual is an invitee or a licensee, the distinction between the terms "invitation" and "permission" is critical. Id. at 792. It does not appear Yates could have been considered a "business visitor" of the School Corporation, because it received no economic benefit by her going to the Circus or in allowing the Town to use School Hill. Nor does it appear she was a "social guest" of the School Corporation. We focus our attention on whether she was a "public invitee." "A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public." Burrell, 569 N.E.2d at 642 (quoting Restatement (Second) of Torts

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