Get-N-Go, Inc. v. Markins

544 N.E.2d 484, 1989 Ind. LEXIS 302, 1989 WL 117321
CourtIndiana Supreme Court
DecidedOctober 2, 1989
Docket06S01-8910-CV-00737
StatusPublished
Cited by45 cases

This text of 544 N.E.2d 484 (Get-N-Go, Inc. v. Markins) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Get-N-Go, Inc. v. Markins, 544 N.E.2d 484, 1989 Ind. LEXIS 302, 1989 WL 117321 (Ind. 1989).

Opinions

DeBRULER, Justice.

This is an appeal from a jury trial in the Boone Circuit Court where Viola Markins was awarded a judgment of $125,000 for injuries sustained when she slipped and fell in the parking lot of appellant Get-N-Go, Inc. The Court of Appeals reversed the judgment, holding that Markins had incurred the risk of her injuries as a matter of law. The petition of appellee Markins for transfer to this Court is granted and the request for oral argument is denied.

On appeal, a reviewing court must look to the facts and inferences drawn therefrom that are most consistent with the judgment of the trial court. State Farm Life Ins. Co. v. Spidel (1964), 246 Ind. 458, 202 N.E.2d 886. The facts most favorable to the verdict in this case are as follows. Markins lived in Indianapolis on Collier Street about 100 feet south of the Get-N-Go convenience store where she routinely did her grocery shopping. In the late afternoon of a cold winter day in December of 1983, Markins set out on foot to buy groceries at the store after first picking up her mail from the mail box in front of her house. She was sixty-eight years old at the time and a diabetic and needed food for her next day's breakfast to prevent a possible adverse reaction to her morning insulin injection. A freezing rain had made conditions very icy, and Markins, wearing flat-heeled boots, walked slowly [486]*486toward the Get-N-Go on the gravel shoulder of Collier because it provided better footing than the paved surface of the street. Once on the store's parking lot, Markins held on to a telephone pole and a parked car as she made her way to the raised sidewalk surrounding the store. Get-N-Go had failed to take any measures to ameliorate the dangerous condition of its parking lot and sidewalk. When Markins attempted to step up on the sidewalk, her foot slipped out from under her and she fell, sustaining serious injury to her knee.

In reversing the trial court, the Court of Appeals, in an unpublished opinion, held that Markins had incurred the risk of her injuries because she had actual knowledge of the layout of Get-N-Go's parking lot, of the accumulation of ice on the ground generally, of the accumulation of ice on the spot where she fell, and appreciated that ice was slick and caused people to fall and hurt themselves. Appellant Get-N-Go urges that the decision of the Court of Appeals should be upheld because it is based on facts contained in the record. This is not the correct standard of review.

When a trial court decides an issue adversely to a party who has the burden of proof on that issue, an appellate court is not free to reweigh the evidence or judge the credibility of the witnesses. Reversal of the trial court is warranted only if the evidence which is not in conflict leads solely to a conclusion contrary to that reached by the jury. Spidel, 246 Ind. 458, 202 N.E.2d 886.

Incurred risk is an affirmative defense and the burden was therefore on defendant Get-N-Go to establish this defense by a preponderance of the evidence at trial. Ridgway v. Yenny (1944), 223 Ind. 16, 57 N.E.2d 581. This Court has previously noted in discussing incurred risk that it is not enough that a plaintiff have merely a general awareness of a potential for mishap, but that the defense demands a subjective analysis focusing on the plaintiff's actual knowledge and appreciation of the specific risk involved and voluntary acceptance of that risk. Beckett v. Clinton Prairie School Corp. (1987), Ind., 504 N.E.2d 552, 554, citing Power v. Brodie (1984), Ind.App., 460 N.E.2d 1241, 1243. It involves a state of venturousness on the part of the actor. Beckett, 504 N.E.2d at 555. The evidence introduced at trial was, at best, conflicting on this issue.

Markins testified that she was generally aware of the icy conditions outside that day, but also testified that she was already on Get-N-Go's parking lot when she realized how dangerous that specific area was:

Q. Okay. Now, was there-was there ever a time that you thought to yourself, that-that is [sic] was bad out, that you shouldn't be out?
A. No, well, when-after I got up there and I thought when I stepped up there and seen how slick it was, then I thought, I get back home, I am not coming out no more.
a Where were you in relation to that telephone pole?
Just right there where I stepped up, past the telephone pole. rel
Had you past [sic] the telephone pole? ©
Yeah. p
Okay. And I am sorry, you said you were just getting ready to step up when you thought that? &
A. Yeah.

Another witness testified that she was not aware of the slippery condition of the steps and parking lot until after she had walked on the icy portions for a few steps. While this testimony alone could not support a finding that Markins was unaware of the specific risk involved since incurred risk demands a subjective analysis of the plaintiff's state of mind, such testimony nevertheless lent credibility to Markins's claim that she was not aware of the icy conditions until she was well onto Get-N-Go's parking lot, and the jury could have so concluded. Barring Markin's recovery on the grounds that she had a general awareness that ice was slick and caused people to fall and knew that conditions were icy outside on the day of her fall would preclude [487]*487recovery for virtually all who were injured on ice. As Markins herself testified, "anybody that knows anything about ice at all," knows it is slick and can cause people to fall. Our past decisions do not contemplate that a plaintiff's claim can be barred through such a general awareness of potential harm, Beckett, 504 N.E.2d 552, nor do they require that people confine themselves to their homes during periods of inclement weather. Necessity often dictates otherwise.

In this respect, Markins's actions were also not altogether voluntary. When incurred risk is at issue, the question often arises whether the plaintiff could or should have retreated once the danger and risk became apparent. We have held that even when a danger is known and appreciated, continued exposure to it does not amount to incurring its risk where there is no reasonable opportunity to escape from it or where the exposure is the result of influence, cireamstances or surroundings which are a real inducement to continue despite the danger. Ridgway, 223 Ind. 16, 57 N.E.2d 581. The Court of Appeals has addressed this issue as well. In Hollowell v. Midwest Smorgasbord, Inc. (1985), Ind.App., 486 N.E.2d 16, trans. denied, the plaintiff entered the defendant's restroom and walked partially across the floor before he realized it was wet and dangerously slippery. He fell and injured himself and brought an action for damages.

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Cite This Page — Counsel Stack

Bluebook (online)
544 N.E.2d 484, 1989 Ind. LEXIS 302, 1989 WL 117321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/get-n-go-inc-v-markins-ind-1989.