ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
PAUL S. KRUSE TODD J. KAISER
ANTHONY W. PATTERSON NICHOLAS C. PAPPAS
Parr Richey Obremskey & Morton SANDRA BOYD WILLIAMS
Lebanon, Indiana Locke Reynolds Boyd & Weisell
ALICE JEAN SMITH ) and RICHARD SMITH, ) ) Appellants-Plaintiffs, ) ) vs. ) No. 06A01-9609-CV-293 ) STANDARD LIFE INSURANCE ) COMPANY OF INDIANA, ) P.K. OF ZIONSVILLE, INC., ) GLENN W. FOSTER & ASSOCIATES, ) GARY KELLER d/b/a GRASS ) EATERS LAWN CARE, and ) GRASS EATERS LAWN CARE, ) ) Appellees-Defendants. )
on occasion. However, Smith and her co-workers removed snow and ice only from the area
directly in front of the Hook's store.
On February 23, 1993, Smith was injured when she slipped and fell on an icy area of the sidewalk between Hook's and Pizza King. Subsequently, Smith filed a complaint against several defendants, including Standard Life. Smith alleged that Standard Life had breached its duty of reasonable care when it knew or should have known at the time of the lease that a dangerous condition existed on the premises and was negligent because it had failed to remove accumulations of snow and ice from the sidewalk. Specifically, Smith alleged that a drain spout had directed water onto the sidewalk in a concentrated area, which caused ice to form, and that Standard Life either knew about or should have discovered the condition.
Standard Life filed a Motion for Summary Judgment, which the trial court granted. Smith now appeals.
which it relies for purposes of the motion. Id. The movant bears the burden of establishing
the propriety of summary judgment, and all facts and inferences to be drawn therefrom are
viewed in the light most favorable to the non-movant. Ramon v. Glenroy Constr. Co., 609
N.E.2d 1123, 1127 (Ind. Ct. App. 1993), trans. denied.
When reviewing a decision upon a motion for summary judgment, this court applies the same standard as the trial court. Miller Brewing Co. v. Bartholemew Co. Beverage Co., Inc., 674 N.E.2d 193, 198 (Ind. Ct. App. 1996), trans. denied. We stand in the shoes of the trial court and liberally construe all designated evidentiary material in favor of the nonmoving party. Rotec, Div. of Orbitron, Inc. v. Murray Equip., Inc., 626 N.E.2d 533, 535 (Ind. Ct. App. 1993). In order to prevail on appeal when a summary judgment motion has been granted in favor of an opposing party, the appealing party must establish the existence of a genuine issue of material fact from materials designated to the trial court. Thompson v. Murat Shrine Club, Inc., 639 N.E.2d 1039, 1040 (Ind. Ct. App. 1994), trans. denied. Where the facts are not in dispute, summary judgment is inappropriate only when the fact- finder may reasonably draw conflicting inferences from the undisputed facts. Nobles v. Cartwright, 659 N.E.2d 1064, 1071 (Ind. Ct. App. 1995).
negligence is comprised of three elements: (1) a duty owed to the plaintiff, (2) a breach of
that duty by the defendant, (3) which proximately causes the plaintiff's damage. Pitcock v.
Worldwide Recycling, Inc., 582 N.E.2d 412, 414 (Ind. Ct. App. 1991). Whether a duty
exists is a question of law for the court to decide. Id. The duty that a landlord owes to
tenants or third parties lawfully upon the leased premises was discussed in Rogers v.
Grunden, 589 N.E.2d 248 (Ind. Ct. App. 1992), trans. denied, in which we stated:
The law of this jurisdiction is clear; as a general rule, in the absence of statute, covenant, fraud or concealment, a landlord who gives a tenant full control and possession of the leased property will not be liable for personal injuries sustained by the tenant or other persons lawfully upon the leased property. Generally, once possession and control of property have been surrendered, a landlord does not owe a duty to protect tenants from defective conditions.
Id. at 254 (citations omitted).
The parties do not dispute that Standard Life had relinquished complete possession and control of the premises to Hook's. Specifically, pursuant to the lease, Hook's accepted "the premises in their [sic] present condition" and agreed to "keep [it] in good condition and repair." Hook's also retained the right to alter the premises. Consequently, Hook's was responsible for the maintenance and repair of the building and typically dispatched its own maintenance workers to make improvements or repairs. Further, Hook's employees removed the snow and ice from the sidewalk, and the store manager made certain that the sidewalk in front of Hook's was clear of snow and ice prior to opening for business each day. Given these undisputed facts, under the general rule of non-liability for landlords, Standard Life did not owe Smith a duty.
Id. at 129 N.E.2d at 73 (citations omitted). In order for the public use exception to apply, Smith must designate evidence of the following facts in the record: (1) the property was leased for a public purpose, (2) a condition existed at the time of the lease which rendered the premises unsafe and the landlord knew or should have known of the condition by the exercise of reasonable care, and (3) a third person was injured because of the existing condition. Id. The parties dispute whether the premises were leased for a public purpose and
whether Standard Life knew or should have known of the alleged dangerous condition. We
need not consider whether these are disputed issues of material fact because the dispositive
issue in this case is whether Smith qualifies as a "third person" under the public use
Place's employer for a public purpose. Id. at 675. Thus, we consider this a case of first
The definition of a third person on business premises that are open to the public is found in the Restatement (Second) of Torts:
b. "Third persons" include all persons other than the possessor of the land, or his servants acting within the scope of their employment. It includes such servants when they are acting outside of the scope of their employment, as well as other invitees or licensees upon the premises, and also trespassers on the land, and even persons outside of the land whose acts endanger the safety of the visitor.
Restatement (Second) of Torts § 344 cmt.b (1965). Both our supreme court and this court
have previously relied on the Restatement (Second) of Torts in resolving premises liability
questions. See Burrell v. Meads, 569 N.E.2d 637, 642 (Ind. 1991) (incorporating
Restatement (Second) Torts § 332 in adopting the "invitation test" for use in determining
who qualifies as an invitee in premises liability actions); see also Frye v. Rumbletown Free
Methodist Church, 657 N.E.2d 745, 750 (Ind. Ct. App. 1995) (adopting Restatement
(Second) Torts § 330 in determining that Indiana recognizes the privilege to enter another's
land implied by custom). We agree with the Restatement (Second) of Torts § 344, Comment
B, and adopt the Restatement definition of who qualifies as a "third person" under the public
Smith argues that she is a "third person" because her injury occurred outside the area occupied by Hook's rather than inside the store. We are not persuaded by her argument. While Standard Life owns the premises, the lease gave Hooks complete possession and
control. Regardless of the exact location where her injury occurred, Smith was on the
premises controlled by Hook's when she was injured, and there is no dispute that she was
acting within the scope of her employment at the time she sustained her injury. Thus, Smith
is not a stranger to the lease and does not qualify as a third person under the Restatement
(Second) Torts § 344 definition.
We conclude that Smith has failed to meet the "third person" requirement of the public use exception, and, therefore, that the exception does not apply. Standard Life owes no duty to Smith under the exception. The trial court did not err in granting summary judgment in favor of Standard Life.
BAKER, J., and KIRSCH, J., concur.
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