ATTORNEYS FOR APPELLANT
: ATTORNEYS FOR APPELLEES:
D. BRUCE KEHOE THOMAS M. WEINLAND
RALPH E. DOWLING RONALD W. FRAZIER
WILLIAM E. LUKENS Frazier & Associates
Wilson, Kehoe & Winingham Indianapolis, Indiana
ROBERT W. HASH
Jennings Taylor Wheeler & Bouwkamp
COURT OF APPEALS OF INDIANA
NAOMI HARRIS, )
vs. ) No. 89A04-0012-CV-515
PATRICK TRAINI, KAY TRAINI, MICHAEL )
TRAINI and QUAKERTOWN MARINA, INC., )
APPEAL FROM THE WAYNE SUPERIOR COURT
The Honorable Gregory Horn, Judge
Cause No. 89D02-9805-CT-12
November 21, 2001
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
Naomi Harris appeals the trial courts entry of summary judgment in favor of
Patrick Traini, Kay Traini (collectively the Trainis), Michael Traini (Michael), and Quakertown Marina,
Inc. (Quakertown), on her negligence claims. Harris presents several issues for our
review which we consolidate and restate as:
1. Whether an intervening cause immunized Michael from liability.
2. Whether genuine issues of material fact preclude summary judgment for the defendants.
We affirm in part, reverse in part, and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
On June 25, 1996, the Trainis gave Michael, their seventeen-year-old son, permission to
have friends visit the Trainis houseboat, which was moored on Brookville Reservoir.
Despite their knowledge that Michael had previously been arrested for possession of marijuana,
the Trainis did not supervise or otherwise monitor Michael and his friends use
of the boat. That afternoon, Ron Anderson, a twenty-one-year-old acquaintance of Michaels,
brought Jessica Legear, Harris seventeen-year-old daughter, Nathan Marling, and two other minors to
the Trainis boat to see if Michael was there. Although Michael did
not know Andersons friends, he invited everyone on board the boat, where alcohol
and marijuana were already present.
Marling observed Michael and the others consume
alcohol and marijuana while on the boat that day.
Later in the afternoon, Legear and Marling were sitting together at the back
of the boat. Legear was talking about jumping into the water, and
Marling pushed her in. Marling was playing around when he pushed Legear.
Legear had not told anyone that she was unable to swim, and
she drowned before anyone could pull her out of the water. A
juvenile court entered a true finding of reckless homicide against Marling in Legears
As members of the Quakertown Marina, the Trainis, including Michael, were allowed to
take a shuttle operated by Quakertown to reach their boat, and the Quakertown
shuttle likewise transported the Trainis guests from the marina to the Trainis boat.
On the date of Legears death, the Quakertown shuttle took Legear and
her friends to the Trainis boat. Anderson, however, returned to the marina
to retrieve alcohol, which he then transported to the Trainis boat via the
Harris filed a complaint, alleging that the Trainis, Michael, and Quakertown were each
negligent in causing Legears death. Each defendant moved for summary judgment, which
the trial court granted following a hearing. Harris now appeals.
DISCUSSION AND DECISION
Standard of Review
In determining the propriety of summary judgment, we apply the same standard as
the trial court. Jesse v. American Cmty. Mut. Ins. Co., 725 N.E.2d
420, 423 (Ind. Ct. App. 2000), trans. denied. We construe all facts
and reasonable inferences to be drawn from those facts in favor of the
non-moving party. Id. Summary judgment is appropriate when the designated evidence
demonstrates that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. Ind.
Trial Rule 56(C). 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. Zawistoski v. Gene B. Glick Co.,
Inc. 727 N.E.2d 790, 792 (Ind. Ct. App. 2000).
We note that the trial court made findings and conclusions in support of
its summary judgment entries. Although we are not bound by the trial
courts findings and conclusions, they aid our review by providing reasons for the
trial courts decision. See Ledbetter v. Ball Meml Hosp., 724 N.E.2d 1113,
1116 (Ind. Ct. App. 2000), trans. denied. If the trial courts summary
judgment can be sustained on any theory or basis in the record, we
must affirm. Id.
Issue One: Intervening Cause
Harris contends that the trial court erred when it found, as a matter
of law, that Marlings conduct [broke] any causal connection between Michaels alleged negligence
and Legears death. Brief of Appellant at 51. Under common law,
independent intervening conduct precludes the original wrongdoers liability when the later conduct constitutes
a cause interrupting the natural sequence of events, turning aside their course, preventing
the natural and probable result of the original act or omission, and producing
a result that could not have been reasonably anticipated. L.K.I. Holdings, Inc.
v. Tyner, 658 N.E.2d 111, 119 (Ind. Ct. App. 1995), trans. denied.
Intervening cause, therefore, acknowledges a defendants negligence, yet absolves the defendant of liability
when the negligence is deemed remote. Id.
This court has previously concluded that the adoption of comparative negligence, with its
apportionment of fault, renders the protection of a remote actor unnecessary. See
id. In other words, the comparison of fault inherent in the doctrine
of intervening cause has been incorporated into our comparative fault system. See
id. at 120. Here, if Marlings conduct was a proximate cause of
Legears death, that does not immunize the defendants from liability for damages proximately
caused by their negligence. See id. Rather, Marlings conduct triggers the
apportionment principles of comparative fault, and the foreseeability of his negligence is simply
a matter for the fact finder to consider in allocating fault. See
id. Accordingly, we conclude that the trial court erred when it found
that Marlings conduct was an intervening cause which absolved Michael of liability for
Issue Two: Negligence
A. Michael and the Trainis
Harris contends that the trial court erred when it entered summary judgment in
favor of Michael and the Trainis. Specifically, she maintains that Legear was
an invitee of Michael and the Trainis and that questions of fact exist
regarding whether they breached the duty of care owed to Legear. Michael
and the Trainis respond that they owed no duty to protect Legear from
Marlings unforeseeable criminal act.
We note that Michael and the Trainis invoked the law of premises liability
in support of their summary judgment motions.See footnote For the first time on
appeal, they contend that this case is not appropriately analyzed under premises liability
law because they are not
landowners with respect to the houseboat, and Legears
death did not occur on land. Brief of Appellees Patrick, Kay and
Michael Traini at 10. It is axiomatic that a party may not
raise an issue on appeal which was not first presented to the trial
court. See Mitchell v. Stevenson, 677 N.E.2d 551, 558 (Ind. Ct. App.
1997), trans. denied. Accordingly, the issue is waived. Waiver notwithstanding, we
find that premises liability principles apply to the facts of this case.
The incident occurred on a large houseboat equipped with a kitchen and bathroom.
Indeed, the Trainis used the houseboat as a weekend getaway. We
see no reason to distinguish the Trainis houseboat from a residence located on
land. See, e.g., Frasca v. Prudential-Grace Lines, Inc., 394 F.Supp. 1092, 1100
(D.C. Md. 1975) (applying premises liability analysis in case involving injury to plaintiff
working on defendants ship).
The tort of negligence is comprised of three elements: 1) a duty
on the part of the defendant in relation to the plaintiff; 2) a
failure by the defendant to conform its conduct to the requisite standard of
care; and 3) an injury to the plaintiff proximately caused by the failure.
Estate of Pflanz v. Davis, 678 N.E.2d 1148, 1151 (Ind. Ct. App.
1997). In the absence of the existence of a duty, there can
be no negligence. Id.
The law is well-established that a person entering upon the land of another
comes upon the land either as an invitee, licensee or trespasser. Id.
The persons status on the land defines the nature of the duty
owed by the landowner to the visitor. Id. Accordingly, the first
step in resolving a premises liability case is to determine the plaintiffs visitor
status. Id. The visitor status then defines the duty owed from
the landowner to the visitor. Id.
Here, on appeal, the parties dispute whether Legear was a licensee or invitee.
During the summary judgment hearing, however, the Trainis counsel stated as follows:
[w]hen you walk onto someones land or someones boat you without question become
a social guest. Theres not any controversy in this case as to
whether [Legear] was a social guest on the date of the incident.
Our supreme court has expressly held that social guests are invitees. See
Burrell v. Meads, 569 N.E.2d 637, 643 (Ind. 1991). And the Trainis
counsels concession on this issue at the summary judgment hearing is binding on
the Trainis. See Lystarczyk v. Smits, 435 N.E.2d 1011, 1014 (Ind. Ct.
App. 1982). Accordingly, it is undisputed that Legear was a social guest,
or invitee, on the Trainis houseboat at the time of her death.
A landowner owes the highest duty of care to an invitee; that is
the duty to exercise reasonable care for his protection while he is on
the landowners property.See footnote
Dunifon v. Iovino, 665 N.E.2d 51, 56 (Ind. Ct.
App. 1996) (citing Burrell v. Meads, 569 N.E.2d at 639), trans. denied.
Our supreme court has adopted the Restatements definition of this duty:
A possessor of land is subject to liability for physical harm caused to
his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition,
and should realize that it involves an unreasonable risk of harm to such
(b) should expect that they will not discover or realize the danger, or
will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
Burrell, 569 N.E.2d at 639-40 (citing Restatement (Second) of Torts § 343 (1965)).
The duty of reasonable care extends not only to harm caused by
a condition on the land but also to activities being conducted on the
land. Estate of Pflanz, 678 N.E.2d at 1151.
Where, as here, a duty of care exists, the determination of whether a
breach of duty occurred is a factual question which requires an evaluation of
the landowners conduct with respect to the requisite standard of care. Id.
(quoting Kinsey v. Bray, 596 N.E.2d 938, 944 (Ind. Ct. App. 1992), trans.
denied). In this regard, our supreme court has noted that if the
facts are in dispute, or if reasonable men may draw different conclusions from
undisputed facts, the question of negligence is one for the jury. Id.
(quoting Lincoln Operating Co. v. Gillis, 232 Ind. 551, 114 N.E.2d 873, 875
Further, [t]he question of whether and to what extent landowners owe any duty
to protect their invitees from the criminal acts of third parties has been
the subject of substantial debate among the courts and legal scholars in the
past decade. Delta Tau Delta v. Johnson, 712 N.E.2d 968, 971 (Ind.
1999). And while landowners are not to be made the insurers of
their invitees safety, landowners do have a duty to take reasonable precautions to
protect their invitees from foreseeable criminal attacks. Id. To determine whether
a criminal act was foreseeable such that a landowner owed a duty to
take reasonable care to protect an invitee from the act, we implement a
totality of the circumstances test. See id. at 971-73. That test
permits courts to consider all of the circumstances to determine duty. Id.
at 973. A substantial factor in the determination of duty is the
number, nature, and location of prior similar incidents, but the lack of prior
similar incidents will not preclude a claim where the landowner knew or should
have known that the criminal act was foreseeable. Id.
Here, Michael invited several people, including Legear, on board his parents houseboat, and
questions of fact exist regarding whether he provided alcohol and marijuana to his
guests. It is undisputed, however, that Michael witnessed Legear consume alcohol on
the Trainis boat before she drowned. And Marling testified that Michael and
Legear, along with the others, smoked marijuana together on the boat. Given
the danger inherent in the use of alcohol and drugs aboard a boat
on a reservoir, we cannot say, as a matter of law, that it
was not reasonably foreseeable that one of Michaels teenaged guests would become impaired
and drown. Moreover, under the circumstances, it was reasonably foreseeable that teenagers
under the influence of drugs or alcohol would engage in horseplay, such as
occurred when Marling gave Legear a slight push into the water.
The dissent contends that we presuppose that Michael and the others were under
the influence of drugs or alcohol. But Marling testified that he observed
Legear consume anywhere from six to eight alcoholic beverages and smoke one or
two joints on the Trainis boat that afternoon, that everybody on board was
smoking marijuana, and that he thought everybody was drinking alcohol. Record at
866, 891. Given this evidence, we cannot say that Michael did not
have a duty to ask Legear and the others to leave his parents
boat or, in the alternative, to attempt to prevent the consumption of alcohol
and marijuana aboard the boat. Whether Michael exercised the requisite degree of
care for Legears safety under the circumstances is a question for a trier
of fact. We conclude that the trial court erred when it found,
as a matter of law, that Michael did not breach any duty to
A determination of the Trainis liability to Harris is, however, another matter, since
they were not present at the time of Legears death. As a
general rule, the common law does not hold a parent liable for the
tortious acts of her minor children.
Wells v. Hickman, 657 N.E.2d 172,
176 (Ind. Ct. App. 1995). However, a childs negligence may be imputed
to his parent where the parent entrusts the child with an instrumentality which,
because of the childs lack of age, judgment, or experience, may become a
source of danger to others. Ross v. Lowe, 619 N.E.2d 911, 915
(Ind. 1993) (citation omitted).
Here, the Trainis gave their minor son, Michael, permission to have friends aboard
their houseboat. Despite Michaels history of drug abuse, and despite the known
presence of alcohol on the premises,
See footnote the Trainis did not supervise Michaels use
of the boat on June 25, 1996. Indeed, Michael and his friends
were using alcohol and marijuana on the Trainis houseboat that day. Given
this evidence, a jury could reasonably conclude that Michael lacked the judgment necessary
to keep the houseboat from being a source of danger to invitees.
See id. We conclude that questions of fact exist regarding whether Michaels
negligence is imputable to the Trainis pursuant to the dangerous instrumentality exception set
out in Ross, 619 N.E.2d at 915 (finding question of fact existed regarding
parents liability for childs failure to adequately restrain dog when meter reader entered
In sum, viewing the evidence in a light most favorable to Harris, we
find that there are unresolved factual issues as to whether Michael and the
Trainis breached their duty of reasonable care. Although the trial court may
not believe that Harris will be successful at trial, summary judgment should not
be entered where material facts conflict or where conflicting inferences are possible.
See Estate of Pflanz, 678 N.E.2d at 1152.
Harris also contends that the trial court erred when it entered summary judgment
in favor of Quakertown. Specifically, she maintains that Legear was Quakertowns invitee
and that questions of fact exist regarding whether Quakertown breached the duty of
care owed to Legear. We cannot agree.
The thread through the law imposing liability upon occupancy of premises is control.
Great Atlantic & Pacific Tea Co. v. Wilson, 408 N.E.2d 144, 150
(Ind. Ct. App. 1980). [O]nly the party who controls the land can
remedy the hazardous conditions which exist upon it and only the party who
controls the land has the right to prevent others from coming onto it.
Thus, the party in control of the land has the exclusive ability
to prevent injury from occurring. City of Bloomington v. Kuruzovich, 517 N.E.2d
408, 411 (Ind. Ct. App. 1987), trans. denied.
Here, Legears death occurred when she was pushed off the side of the
Trainis privately-owned houseboat. Harris has not demonstrated that Quakertown had any control
over the Trainis houseboat at the time of Legears death.
See footnote Accordingly, the
trial court did not err when it found that Quakertown did not owe
Legear a duty of reasonable care once she boarded the Trainis houseboat.See footnote
Moreover, even assuming that Quakertown owed Legear a duty that extended to activities
aboard the Trainis houseboat, Harris cannot demonstrate any breach of such a duty.
A defendant in a negligence action may obtain summary judgment by demonstrating
that the undisputed material facts negate at least one element of the plaintiffs
Ozinga Transp. Systems, Inc. v. Michigan Ash Sales, Inc., 676 N.E.2d
379, 383 (Ind. Ct. App. 1997), trans. denied. Quakertown owed its invitees
a duty to transport them safely to and from boats moored on Brookville
Reservoir. Quakertown also had a policy prohibiting minors from transporting alcohol to
boats using their shuttle service. Here, Anderson was of legal age to
purchase and drink alcoholic beverages, and there is no evidence that anyone other
than Anderson carried alcohol aboard the Quakertown shuttle on the date of Legears
death. Harris does not allege any facts from which a reasonable inference
could be made that Quakertown breached a duty of care owed to Legear.
Under these circumstances, we conclude that, as a matter of law, Quakertown
did not breach any duty of care owed to Legear. The trial
court did not err when it entered summary judgment in favor of Quakertown.
Affirmed in part, reversed in part, and remanded for further proceedings.
BAILEY, J., concurs.
BAKER, J., concurs in part and dissents in part with separate opinion.
COURT OF APPEALS OF INDIANA
NAOMI HARRIS, )
vs. ) No. 89A04-0012-CV-515
PATRICK TRAINI, KAY TRAINI, MICHAEL )
TRAINI and QUAKERTOWN MARINA, INC., )
BAKER, Judge, concurring in part and dissenting in part.
While I agree with the majoritys decision to affirm the grant of summary
judgment for Quakertown Marina, Inc., I respectfully dissent from the reversal of the
trial courts denial of summary judgment with respect to Michael and his parents.
I embrace the totality of the circumstances test in determining whether a landowner
should be exposed to potential liability for the criminal act of a third
See Delta Tau Delta v. Johnson, 712 N.E.2d 968, 971 (Ind.
1999). I am compelled to part ways, however, with the majoritys application
of this test as it relates to the designated evidence that was put
before the trial court. First, the majority presupposes that the teenagers aboard
the houseboat were under the influence of drugs or alcohol. Slip op.
at 9. Marling initially testified in his deposition that he thought everyone
on the boat was drinking. He then acknowledged that some of the
people might not have been drinking. The evidence does not establish that
Michael knew anyone was intoxicated at the time of the incident. The
uncontroverted evidence establishes that Michael had consumed less than one beer prior to
the incident, and there has been no showing that Michael supplied Legear with
any intoxicant. Marling testified that he did not know who supplied the
marijuana or who may have supplied Legear with any alcohol. Moreover, none
of the alcohol stored on the houseboat by his parents was consumed on
the day of the incident, and the evidence is undisputed that Michael did
not make the others aware of the alcohol that his parents kept on
the houseboat because he did not want to get into trouble.
I would also note that the designated evidence established that, prior to the
incident, LeGear had commented to the others that she was interested in swimming
at a beach near the marina. Jessica remarked that she had been
swimming with a friend earlier in the day. In my view, one
cannot be negligent for failing to foresee that another, who would propose to
go swimming, would actually not know how to swim. Thus, in applying
the totality of the circumstances test set forth in
Delta Tau Delta,
I cannot agree that a genuine issue of material fact remains as to
whether Michael exercised the requisite degree of care for Legears safety.
I would affirm the trial courts judgment entered in Michaels favor.
With respect to the potential liability of Michaels parents, the majority acknowledges the
general rule that parents are not liable for the tortious acts of their
minor children. Slip op. at 10 (citing
Wells v. Hickman, 657 N.E.2d
172, 176 (Ind. Ct. App. 1995)). An exception to this no liability
rule exists, though, when the child is entrusted with an instrumentality which, because
of the childs lack of age, judgment, or experience, may become a source
of danger to others. Slip op. at 10 (citing Ross v. Lowe,
619 N.E.2d 911, 915 (Ind. 1993)). The imposition of a duty with
respect to a parent in such a circumstance is limited to incidents where
a reasonably foreseeable victim is injured by a reasonably foreseeable harm. Wells,
657 N.E.2d at 177-78.
I cannot agree with the majoritys notion that Michaels history of drug abuse
was a factor in imputing knowledge on the part of the Trainis to
exercise greater control or supervision over their son. Specifically, the designated evidence
showed that Michael had one arrest for marijuana possession prior to the incident.
He then completed a drug counseling program. Moreover, the evidence
is equivocal at best as to whether Michael had used marijuana on June
I thus cannot agree that questions of fact exist regarding
whether any alleged negligence on Michaels part could be imputed to his parents
under the dangerous instrumentality exception on this basis.
The undisputed evidence also shows that the Trainis maintained the requisite safety equipment
on the houseboat. There is no evidence showing that the Trainis consented
to, directed, or sanctioned any wrongdoing. To the contrary, they established
rules for Michael to follow, including those that were taught by the Coast
Guard. The Trainis prohibited Michael from inviting people onto the houseboat without
their permission, and he was forbidden to use alcohol or illegal drugs.
In my view, the parents knowledge that Michael had previously smoked marijuana does
not rise to the level of an actual and immediate knowledge of his
incapacity to operate the houseboat. The totality of the circumstances here does
not dictate a determination that the Trainis should be faced with any potential
liability. To hold otherwise would inappropriately render the Trainis an insurer of
Finally, there is no evidence that the Trainis had ever met Legear or
Marling. Hence, there is nothing to suggest that they might have reasonably
foreseen that Marling would push Legear from the houseboat into the lake and
cause her death. In essence, there is no showing that the Trainis
breached any duty here that may have prevented Legears drowning. Given these
circumstances, I cannot agree that any genuine issues of material fact exist as
to whether any negligence on Michaels part may be imputed to the Trainis.
Therefore, I vote to affirm the trial courts judgment in all respects.
We heard oral argument at Vincennes University on October 2, 2001.
Footnote: The Trainis voluntarily enrolled Michael, then fifteen years old, in a
drug treatment program.
Footnote: Anderson had previously visited the Trainis houseboat as Michaels guest, and
on each occasion he observed a cooler stocked with beer sitting on the
deck and marijuana kept under the couch in a sitting area. Also
on each previous occasion, he observed alcohol and marijuana being consumed on board.
Footnote: The parties address the issue of intervening cause with respect to
Michael, the Trainis, and Quakertown. Our review of the trial courts findings
and conclusions, however, indicates that the trial court only addressed intervening cause with
respect to Michael.
Footnote: None of the defendants argues that Legear was contributorily negligent.
Footnote: We also note that each defendant alleges immunity from liability under
the Recreational Use Statute (IRUS), Indiana Code Section 14-22-10-2. However, that statute
only applies to causes of action that accrued after June 30, 1997.
And the predecessor statute, Indiana Code Section 14-2-6-3, was repealed in 1995.
As such, none of the defendants here is immune under the IRUS.
Footnote: Even disregarding counsels concession as to Legears status, we find that,
at the very least, Legears invitation to board the Trainis houseboat was implied.
Burrell, our supreme court stated that [i]f a landowner induces a
social guest to enter his land by express or reasonably implied invitation, then
the landowner leads that guest, like any other entrant, to believe that the
land has been prepared for his safety. Burrell, 569 N.E.2d at 643
(emphasis added). Here, although Michael was not acquainted with Legear prior to
the date of the incident, Legear accompanied Michaels acquaintance Anderson to the boat.
Indeed, the undisputed facts indicate that Michael treated Legear like a social
guest, engaging in conversation with her, and he never asked her to leave.
In essence, while Legear was not invited aboard the Trainis boat in
advance, Michael impliedly invited her on board when she arrived with Anderson.
We conclude that Legear was Michaels invitee. See Dunifon v. Iovino, 665
N.E.2d 51, 56 (Ind. Ct. App. 1996) (holding invitee status established where plaintiff
was not expressly invited but accompanied invited guest to defendants party), trans. denied.
We reject the Trainis reliance on our supreme courts opinion in
Martin v. Shea, 463 N.E.2d 1092 (Ind. 1984). That case involved a
guest who drowned as a result of horseplay at the defendants pool party.
The trial court dismissed the plaintiffs complaint for failure to state a
claim, and, on transfer, our supreme court affirmed the trial court. Because
Martin preceded Burrell v. Meads by several years, a social guest was, at
that time, considered merely a licensee. The court cited Prosser for the
rule that [a] licensee has no right to demand that the occupier change
his method of conducting activities for his safety[.] Martin, 463 N.E.2d at
1095. Clearly, since Burrell, the standard has changed. As such, we
do not find Martin dispositive here.
The dissent contends that, under the totality of the circumstances test,
Legears statements to Michael that she had been swimming in a farm pond
earlier that day and that she wanted to go swimming with him at
a nearby beach preclude issues of material fact concerning whether Michael exercised the
requisite degree of care for Legears safety. The dissent maintains that one
cannot be negligent for failing to foresee that another, who would propose to
go swimming, would actually not know how to swim. The issue, however,
is not whether Legear knew how to swim, but whether the alcohol and
marijuana that she and the others consumed on board the Trainis boat that
afternoon was a proximate cause of her death. Indeed, if we believe
Marlings testimony regarding the extent of Legears consumption, she would have been so
impaired that an ability to swim might not have prevented her from drowning.
Moreover, whether Legear told Michael that she could swim goes to the
issue of her comparative fault, an issue not raised on appeal.
Footnote: The Trainis kept alcohol in the houseboats kitchen. Also, in
light of the evidence that Anderson observed a cooler containing alcohol on deck
every time he visited the boat, a reasonable inference could be made that
the Trainis knew or should have known that Michael and his friends frequently
consumed alcohol on board.
Footnote: The record indicates that Quakertown had a right to move the
Trainis houseboat in the event of an emergency, but Quakertown did not even
have keys to the boat. These facts do not support a finding
that Quakertown had a right to control the Trainis houseboat on the date
of the incident.
Footnote: We reject Harris argument that Quakertowns duty of reasonable care, owed
while she was aboard the shuttle, extended to the Trainis houseboat. Harris
Ember v. B.F.D., Inc., 490 N.E.2d 764, 772 (Ind. Ct. App. 1986),
where this court held that [a] duty of reasonable care may be extended
beyond the business premises when it is reasonable for invitees to believe the
invitor controls premises adjacent to his own or where the invitor knows his
invitees customarily use such adjacent premises in connection with the invitation. This
court has applied that rule in cases involving injuries occurring in parking lots
adjacent to invitors businesses, recognizing that in some cases an invitors business activities
extended beyond its legal boundaries. Id. We see no reason to
apply the rule set out in Ember here.
We also reject Harris argument that Quakertown assumed a duty of reasonable care
to control access to the Trainis houseboat. Brief of Appellant at 42.
Harris contends that Quakertown was in a position to prevent the transport
of alcohol to the Trainis houseboat, which was full of minors, and that
Quakertown breached its assumed duty of care to Legear when it allowed Anderson
to bring alcohol aboard the boat. However, Harris has not demonstrated that
Quakertown assumed any such duty.
When Marling was asked during deposition as to what had
occurred on the boat, he responded that [a] couple of people were drinking,
a couple of people were smoking weed. R. at 866. Marling
later opined that Jessica was smoking with [e]verybody that was on the
boat. R. at 891. Michael denied smoking marijuana that day.