Johnson v. Pettigrew

595 N.E.2d 747, 1992 Ind. App. LEXIS 1070, 1992 WL 163506
CourtIndiana Court of Appeals
DecidedJuly 16, 1992
Docket43A03-9111-CV-348
StatusPublished
Cited by23 cases

This text of 595 N.E.2d 747 (Johnson v. Pettigrew) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Pettigrew, 595 N.E.2d 747, 1992 Ind. App. LEXIS 1070, 1992 WL 163506 (Ind. Ct. App. 1992).

Opinions

STATON, Judge.

Delbert R. Johnson and Alice R. Johnson, individually and as parents of Jeffrey Johnson, appeal a summary judgment entered in favor of James and Jenny Pettigrew. The Johnsons raise four issues for our review, which we consolidate as two:

I. Whether the trial court erred in granting summary judgment dismissing their claim based upon premises liability.
II. Whether the Johnsons' complaint states a cause of action in negligence separate and distinct from the premises liability claim.

We affirm in part, and reverse in part.

[749]*749On June 2, 1988, thirteen-year-old Jeffrey Johnson visited the Pettigrews' farm to see the Pettigrews' son, Joel. Jeff was a frequent visitor to the farm and sometimes helped with the various chores required to maintain the premises. On that day, Jeff, Joel, and Joel's cousin Chuck were asked to burn some debris which had accumulated in a shed on the farm. This proved to be a lengthy task, and after lunch, Joel's parents left the farm to run some errands, leaving the hired hand, Derrick Schinbeck-ler, and Joel's eighteen-year-old brother, Jason, in charge while they were gone. Derrick and Jason retired to the tool shed to change the tires on a truck, with the burn barrel in sight through the doors of the shed.

At first, the younger boys continued to burn the debris as directed, but they soon tired of the routine and decided to "mess around" with the fire. The boys took a lighted shop rag on a stick and started another fire out of sight of the tool shed, fueling it with boxes, wood and other debris. Then, with Chuck acting as a lookout to ensure that Jason and Derrick would not see, they filled a plastic jug partially full of gasoline which they obtained from a tank used for farm purposes. The boys then laid the jug on its side near the fire and took turns stomping on it, propelling the gasoline into the fire and causing small explosions. When Jeff took his turn to stomp on the jug, gasoline splattered onto his leg and he caught fire. Though the boys were able to put the fire out, Jeff sustained second and third-degree burns to his legs.

The Johnsons sued the Pettigrews, alleging negligence and premises liability. The trial court entered summary judgment in favor of the Pettigrews and the Johnsons appeal. On appeal from a summary judgment, we apply the same standard applicable in the trial court. Malachowski v. Bank One, Indianapolis (1992), Ind., 590 N.E.2d 559, 562. We must determine whether the record reveals a genuine issue of material fact and whether the trial court correctly applied the law. Shuamber v. Henderson (1991), Ind., 579 N.E.2d 452, 454. Rational assertions of fact and reasonable inferences therefrom are deemed to be true, and any doubt as to a fact, or an inference to be drawn, is resolved in favor of the nonmoving party. Malachowski, supra. Summary judgment will be affirmed if it is sustainable upon any, theory supported by the record. Kolczynski v. Maxton Motors, Inc. (1989), Ind.App., 538 N.E.2d 275, 276, transfer denied.

I.

Premises Liability

Our analysis begins with the recent case of Burrell v. Meads (1991), Ind., 569 N.E.2d 687. There, our supreme court undertook a comprehensive review of premises liability law in Indiana. The court noted that in the context of a negligence action, a person entering the land of another is owed a duty according to his status. Id. at 689. An entrant may fall into three classes: trespassers, licensees, and invitees. Id. No intricate analysis is required to determine Jeffrey Johnson's status-Burrell clearly states that social guests are invitees. Id. at 648.

The highest or most onerous duty is owed to an invitee. This duty is outlined in the Restatement (Second) of Torts § 348 (1965):

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 invitees, and
(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.

This duty was made applicable to social guests in Burrell, supra.

Our review of the law on invitees does not end here. This case is complicated by the fact that Jeff is a minor child. [750]*750Thus, two other Restatement provisions are relevant:

§ 348B. Child Licensees and Invitees.
In any case where a possessor of land would be subject to liability to a child for physical harm caused by a condition on the land if the child were a trespasser, the possessor is subject to liability if the child is a licensee or an invitee.
§ 389. Artificial Conditions Highly Dangerous to Trespassing Children.
A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

Comment (c) to § 848B states:

Because of his status as a licensee or an invitee, the child may be entitled to greater protection than that afforded to a trespasser. This Section is intended to say only that he is entitled to at least as much.

As the comment implies, the duty in § 889 is limited, and some courts have extended greater protection to child invitees than that afforded to child trespassers. In an opinion decided before the advent of the second Restatement, our supreme court stated that an invitee is owed a duty of reasonable care to avoid the aggravation of an injury incurred on the landowner's premises through the fault of a third party. L.S. Ayres & Co. v. Hicks (1942), 220 Ind. 86, 40 N.E.2d 384, 387, reh'g denied, 220 Ind. 86, 41 N.E.2d 195. Moreover, in Hobby Shops, Inc. v. Drudy (1974), 161 Ind. App. 699, 817 N.E.2d 478, we stated that a host owed its thirteen-year-old business invitee a duty to make the premises reasonably safe.

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Johnson v. Pettigrew
595 N.E.2d 747 (Indiana Court of Appeals, 1992)

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Bluebook (online)
595 N.E.2d 747, 1992 Ind. App. LEXIS 1070, 1992 WL 163506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-pettigrew-indctapp-1992.