Opinion
Rehearing Denied Dec. 4, 1972. Opinion Superseded 311 N.E.2d 821.
Page 198
Saul I. Ruman, Hammond, for appellant.
Robert D. Hawk, Gary, for appellee; Spangler, Jennings, Spanglers&s Dougherty, Gary, of counsel.
HOFFMAN, Chief Judge.
The sole issue presented by this appeal is whether the judgment on the evidence entered by the trial court in favor of defendants-appellees was proper.
Plaintiff-appellant Verna Hammond filed her complaint against a certain group of physicians doing business as the Hammond Clinic alleging, inter alia, that the defendants-appellees were negligent in one or more of the following ways:
'a. The Defendants failed to exercise reasonable care in maintaining the parking lot in a safe condition.
'b. The Defendants permitted ice and snow to accumulate in the parking lot.
'c. The Defendants failed to remove the ice and snow which had accumulated in the parking lot.
'd. The Defendants failed to warn Plaintiff that the parking lot was unsafe.'
The complaint further alleged that as a result of defendants' negligence the plaintiff was damaged in various ways and prayed for judgment in the amount of $100,000.
The defendants answered denying each allegation contained in plaintiff's complaint. Following a change of venue, a pre-trial conference was held pursuant to TR. 16, Indiana Rules of Procedure, IC 1971, 34--5--1--1. The trial court entered a pre-trial order setting forth certain admitted facts and the contested issues. Trial was to a jury, and at the conclusion of plaintiff's evidence the trial court granted the motion for judgment on the evidence filed by defendants and entered judgment for the defendants. Plaintiff's motion to correct errors was overruled, and this appeal followed. It has been held that the requisite elements for any negligence action are a duty, a breach thereof and an injury proximately resulting therefrom. Chicago, Indianapoliss&sLouisville R. Co. v. Carter (1971), Ind.App., 274 N.E.2d 537, 27 Ind.Dec. 445. In reviewing the instant case we are required to consider only the evidence most favorable to the party against whom the judgment on the evidence is sought. Rouch v. Bisig (1970), Ind.App., 258 N.E.2d 883, 21 Ind.Dec. 591 (transfer denied). The judgment on the evidence entered by the trial court may only be affirmed if there is a total absence of evidence or reasonable inferences therefrom in favor of the plaintiff upon the issues. If there is any probative evidence or reasonable inferences drawn from the evidence, or if the evidence is such that the minds of reasonable men might differ, then the judgment on the evidence is improper.
Hendrix v. Harbelis (1967), 248 Ind. 619, 623, 230 N.E.2d 315; Whitaker, Admr. v. Borntrager (1954), 233 Ind. 678, 680, 122 N.E.2d 734.
The facts of the instant case most favorable to the plaintiff may be summarized from the facts admitted by the parties as set forth in the pre-trial order and from the testimony contained in the record before us as follows:
On January 4, 1967, there was approximately one inch of snow on the ground and approximately one-half inch of new snow fell. On January 5, 1967, another one inch of snow fell. No snow fell on January 6, 1967, however five hundredths of an inch of rain and snow fell during the morning of January 7, 1967.
On January 4, 1967, the parking lot of the Hammond Clinic had been plowed and salted by R. L. Babcock.
The plaintiff testified that on January 7, 1967, she drove to the Hammond Clinic accompanied by her husband and two other passengers in the car. She testified that there was ice on the highway but it was not solid. She also testified that there was ice and snow on the whole parking lot. She testified that she parked her car in the parking lot and went into the Clinic. Upon returning to her car she slipped and fell on the ice thereby causing the injuries complained of in this appeal.
A person coming onto business premises for the purpose of doing business therein is generally said to be an invitee or licensee by invitation. In Robertson Bros. Dept. Store v. Stanley (1950), 228 Ind. 372, 90 N.E.2d 809, the plaintiff slipped on snow and slush that had been tracked inside the store. At 378 of 228 Ind., at 811 of 90 N.E.2d, it was stated:
"While it is recognized that the proprietor of a store is not burdened by law with any unusual degree of care for the safety of customers, and in that regard is required only to exercise ordinary care to keep his store in a reasonably safe condition, and is not an insurer of the safety of his customers, nevertheless, he must maintain it in such manner as not to cause injury to one lawfully entering the store for the purpose of making purchases.' Great Atlantics&s Pacific Tea Co. v. Custin, 1938, 214 Ind. 54, 59, 13 N.E.2d 542, 544, 14 N.E.2d 538. 'Invitation, whether express or implied, imposes the duty to use ordinary care that the place of invitation be reasonably safe for the invitee.' Silvestro v. Walz, 1943, 222 Ind. 163, 170, 51 N.E.2d 629. 'This duty is an active, continuous one. It owed her the duty of protection against injury through negligent acts of its employees.' Sears, Roebucks&sCo. v. Peterson (CCA 8th) 1935, 76 F.2d 243, 246. See also J. C. Penney, Inc., v. Kellermeyer, 1939, 107 Ind.App. 253, 19 N.E.2d 882, 22 N.E.2d 899; F. W. Woolworth Company v. Moore, 1943, 221 Ind. 490, 48 N.E.2d 644.' See also Hollowell et al. v. Greenfield by Next Friend (1966), 142 Ind.App. 344, 216 N.E.2d 537, 8 Ind.Dec. 281 (transfer denied), wherein the owner acquiesced in an eleven-year old child playing around industrial equipment; Hickey etc. v. Shoemaker (1960), 132 Ind.App. 136, 167 N.E.2d 487 (transfer denied), wherein the plaintiff fell on snow-covered porch of funeral home; Rouch v. Bisig, supra, wherein the plaintiff was injured in diving unaware into shallow water; and Huttinger v. G. C. Murphy Company (1961), 131 Ind.App. 642, 172 N.E.2d 74 (transfer denied), wherein the plaintiff fell on water inside the business premises.
The general rules as above set forth are not applicable in Indiana where the injuries complained of resulted from the natural accumulation of ice and snow on a parking lot maintained by the business for free parking by invitees.
Kalicki v. Beacon Bowl, Inc. (1968), 143 Ind.App. 132, 238 N.E.2d 673, 15 Ind.Dec. 84, is indistinguishable from the instant case. In Kalicki a bowling alley maintained a parking lot for use by its customers. The parking lot was covered with an accumulation of ice and snow, and the plaintiff, when returning to her car parked on the lot, slipped on the ice, fell and was injured. The trial court sustained a motion filed by the defendant for a directed verdict and the jury returned its verdict in favor of the defendant. On review, the Appellate Court of Indiana in affirming the judgment of the trial court, at 138 of 143 Ind.App., at 676 of 238 N.E.2d, held:
'It is our opinion that an operator of a business establishment who provides free parking facilities to his invitees is not responsible for injuries to such invitees who fall on ice or snow accumulated on said lot through natural means.'
In Boss-Harrison Hotel Co. v. Barnard (1971), Ind.App., 266 N.E.2d 810, 24 Ind.Dec. 585, (transfer denied), the plaintiff sought recovery for injuries sustained from a fall while walking along a narrow path that had been cleared on an icy sidewalk in front of the defendant-hotel. The trial court entered judgment for the plaintiff in the sum of $15,000. In reversing the judgment of the trial court the Appellate Court of Indiana, at 811 of 266 N.E.2d, held:
'The factual situation presented here is indistinguishable from the case of Halkias v. Gary National Bank, 142 Ind.App. 329, 234 N.E.2d 652 (1968). In that case the facts showed that ice and snow had been piled high 'between the curb between the street and the sidewalk' by a snow plow operated by the State. A narrow passageway had been cleared through it wide enough for persons to walk in single file. This court in Halkias, supra, held that there could be no liability in such a situation unless the defendant had created a more dangerous condition and the injuries were directly attributable to that condition. This court found that neither of the above factors had been established and upheld a directed verdict for the defendant. There was no concrete evidence, only conjecture and speculation, that the piece of ice on which the plaintiff fell was due to or originated from the efforts of the defendant.'
We, therefore, conclude that on the basis of Kalicki v. Beacon Bowl, Inc., supra, that the owner or occupier of property is under no duty to remove natural accumulations of ice and snow from an open-air parking lot. We realize, however, in certain circumstances good business practice and concern for the safety of customers necessitates the removal of natural accumulations of ice and snow from parking lots. Under Boss-Harrison Hotel v. Barnard, supra, it is only where the property owner creates a more dangerous condition than would otherwise be attributable to the natural accumulation of ice and snow will liability be imposed. Therefore, in the instant case the defendants were, as a matter of law, under no duty to clear the open-air parking lot of the Hammond Clinic. However, having scraped the lot on January 4, 1967, their duty was to not create a more dangerous condition than was created by the natural accumulation of ice and snow. No evidence is contained in the record before us that this duty was breached by the defendants. Appellant has set forth several contentions in the argument portion of her brief. Each contention raised has been considered and is answerd by the above holding.
The judgment of the trial court is affirmed.
Judgment affirmed.
SHARP and STATON, JJ., concur.