Surratt v. Petrol, Inc. , 160 Ind. App. 479 ( 1974 )

316 N.E.2d 453 (1974)

Mary SURRATT, As Guardian for Althama Surratt, and Joan Henderson, Plaintiffs-Appellants,
v.
PETROL, INC., Defendant-Appellee.

No. 3-373A27.

Court of Appeals of Indiana, Third District.

September 11, 1974.

Thomas H. Singer, Alexander Lysohir, Lysohir & Singer, South Bend, for plaintiffs-appellants.

Vincent P. Campiti, Arthur A. May, Crumpacker, May, Levy & Searer, South Bend, for defendant-appellee.

ON PETITION FOR REHEARING

GARRARD, Judge.

Appellee Petrol's petition for rehearing asserts the use of the term "active conduct" and the placing of any reliance upon Cleveland, etc., R. Co. v. Means (1914), 59 Ind. App. 383, 104 N.E. 785, in considering the duty of care owed to discovered trespassers is at odds with the holding in Fort Wayne National Bank v. Doctor (1971), 149 Ind. App. 365, 272 N.E.2d 876.

We believe some discussion of the Doctor case is warranted. We first note that the facts in Doctor did not involve "active conduct" causative of the injury. Plaintiff's decedent, a daughter-in-law of defendant, received fatal injuries at a family gathering when she fell down a flight of steps while carrying a platter of food. The complaint in negligence asserted defendant's improper lighting in the stairway, improper maintenance of the stairway, and a failure to warn decedent that the stairs were dangerous.

The opinion, however, discusses some of the prior cases dealing with the duty of care owed to social guests or mere licensees. It first concluded that Barman v. Spencer (Ind. 1898), 49 N.E. 9, had been overruled by implication to the extent it spoke in terms of "gross negligence" and purported to recognize degrees of negligence.

The court then considered use of the terms "active and passive negligence" in Means. Again, it characterized the terms as violating the prohibition against degrees of negligence, thereby creating an "undefined and undefinable negligence doctrine", and disapproved such a result.

The court proceeded to state that the duty of care recognized in Indiana involved what it identified as three separate concepts:

(a) A positive wrongful act test announced in Woodruff, Admx. v. Bowen (1893), 136 Ind. 431, 34 N.E. 1113;

(b) The wilful or wanton misconduct test relying upon language in Lingenfelter v. Baltimore, etc., R. Co. (1900), 154 Ind. 49, 55 N.E. 1021; and

(c) The entrapment-affirmative control of the instrument test based upon Pier v. Schultz (1962), 243 Ind. 200, 182 N.E.2d 255.

The court concluded it did not need to go further since plaintiff's case did not fit any of these theories.

We concur with the court in Doctor that Indiana does not, and should not, recognize degrees of negligence. Negligence imports one standard, the ordinary care of a reasonable man. See, also, Birdsong v. ITT Continental Baking Co. (1974), Ind. App., 312 N.E.2d 104.

Accepting an analysis that precludes degrees of negligence, we are still confronted with the proposition that while some conduct creates a question of fact for the jury, other conduct (which may include non-action) is deemed insufficient as a matter of law to impose liability. In the latter instance, while it would be analytically more helpful to speak in terms of reasonable care, our courts have often stated instead that the law imposes no duty regarding such conduct.

Viewed in this context, the authorities reviewed in Doctor are consistent with our decision. The three decisional "rules" suggested in Doctor are derived from supreme court cases decided on demurrers to the complaint.

In Woodruff, Admx. v. Bowen, plaintiff's decedent was a fireman who had fallen to his death while fighting a fire in defendant's building. During the fire the roof gave way while the decedent was on it. The complaint asserted the lack of safe premises. In holding the allegation insufficient the court said:

"... [T]he licensor owes ... no duty except that of abstaining from any positive wrongful act .. . and ... the licensee takes all risks as to the safe condition of the premises upon which he enters." 136 Ind. 431, 442, 34 N.E. 1113, 1117. (emphasis added)

Thus, the court's language was used to contrast a lack of duty to maintain the premises in a safe condition with positive, affirmative or active conduct proximately causing the harm.

In Lingenfelter the plaintiff fell into a pit on defendant's property when, at night-time, plaintiff left a pathway to go around one of defendant's railroad cars. Again the court observed that the defendant was to take the premises as he found them, but in dictum observed that this was subject to the rule that the licensor must not wilfully or wantonly cause the injury. That this was not intended as a restriction of the language in Woodruff, Admx. may be gathered from the same court's decision the following year in Cannon v. Cleveland, etc., R. Co. (1901), 157 Ind. 682, 62 N.E. 8. Again the court affirmed the sustaining of a demurrer to plaintiff's complaint where she was injured while walking along defendant's railroad track. The court cited Lingenfelter as controlling, but stated the duty owed to licensees as:

"... not to willfully or wantonly injure them but to use reasonable care to avoid injury to them after their danger is discovered." 157 Ind. 682, 689, 62 N.E. 8, 11.

In Pier v. Schultz a child was injured on defendant's premises when a playmate threw a match into a steel barrel and its contents exploded. Again the complaint asserted the condition of the premises, the lack of fencing and failure to warn. The court affirmed the propriety of the demurrer, footnoting Woodruff, Admx. and stating that it was:

"... not alleged [the owners] committed any positive act or exercised any positive control over the instrumentality." 243 Ind. 200, 204, 182 N.E.2d 255, 257.

It is this conduct, variously characterized as active, affirmative or positive, that may constitute for the trier of fact the failure to use reasonable care toward a discovered trespasser.

In addition, Petrol asserts that our opinion imputes to Petrol the knowledge of its employee, Farmer. Whether Petrol is chargeable with such knowledge is within the issues of respondeat superior, all of which were conceded arguendo by Petrol for purposes of the summary judgment proceeding. Accordingly, our opinion does not treat the question.

The appellee's petition for rehearing is denied. Appellant's petition for rehearing is, also, denied.

STATON, J., concurs.

HOFFMAN, C.J., would grant rehearing on the issue of privilege attending the attempted arrest.