Daniel J. GABOURY, Plaintiff-Appellant, v. IRELAND ROAD GRACE BRETHREN, INC., and City of South Bend, Defendants-Appellees.
No. 483S110
Supreme Court of Indiana
April 13, 1983
Rehearing Denied June 14, 1983
446 N.E.2d 1310
We find no prejudice to defendant in this case as he acknowledges the prosecutor‘s office extended an “open file” policy to his counsel prior to trial. The names of all the victims were in the police report and subpoenas were issued to all of them. Furthermоre, Jackson‘s testimony was merely cumulative since three other victims had already identified defendant as the man who robbed them. Reversal may not be predicated upon the erroneous admission of evidence when evidence of the same probative effect is admitted without objection. Bobbitt v. State, supra.
III.
Defendant finally contends that there was insufficient evidence on all the elements of the crime to support the jury‘s verdict. Our stаndard on reviewing the sufficiency of the evidence is well settled. We will neither reweigh the evidence nor judge the credibility of witnesses; rather, we look only to that evidence most favorable to the state and all reasonable inferences to be drawn therefrom. If there is substantial evidence of probative value to support the conclusion of the trier of fact, the judgment will not be overturned. Walker v. State, (1982) Ind., 442 N.E.2d 696; Fielden v. State, (1982) Ind., 437 N.E.2d 986; Wofford v. State, (1979) Ind., 394 N.E.2d 100.
In the instant case, four victims of the robbery identified defendant as the robber. They testified that defendant was armed and that they each surrendered money to defendant by placing it either on the bar or in a sack. One of the victims testified that he placed all the money laid on the bar in defendant‘s sack. Even though some of the money was literally taken from the surface of the bar, it was the property of the individual victims and of the tavern that was taken. The victims also testified that the time of the robbery was between 10:45 and 11:00 p.m. This testimony placed the occurrence of the robbery sufficiently close to the time of “approximately 11:00 p.m.” that the state alleged in its answer to the alibi notice.
Defendant contends that the evidence of intent was insufficient in light of certain testimony that he acted peculiarly and had been drinking. The evidence favoring the verdict and summarized above shows that hе conducted himself in a deliberate manner and carried out a design to take the money including steps to insure his safe escape. The capacity to conceive a design is ordinarily sufficient. Cowans v. State, (1980) Ind., 412 N.E.2d 54. The evidence of intoxication was for the trier of fact alone. There was no instruction given to the jury on the defense of intoxication, and therefore no reliance upon that defense can be had. Owens v. State, (1980) Ind., 400 N.E.2d 1124. From all of thе facts presented, it is clear that the verdict of the jury was supported by sufficient evidence.
For all of the foregoing reasons, there was no trial court error and the judgment of the trial court should be affirmed.
Judgment affirmed.
GIVAN, C.J., and DeBRULER, PRENTICE and PIVARNIK, JJ., concur.
John R. Obenchain, David T. Ready, John E. Doran, South Bend, for defendants-appellees.
PIVARNIK, Justice.
This cause comes to us on a petition to transfer from the Indiana Court of Appeals, Third District. The St. Joseph Circuit Court entered summary judgment in favor of the defendants, Ireland Road Grace Brethren, Inc., (Church) and the City of South Bend (City), in an action brought by
The question presented for our review is whether the trial court was justified in granting the motions for summary judgment.
At approximately 1:00 a.m., on July 6, 1978, plaintiff Gaboury was riding a Kawasaki 350 motorcycle on Glenlake Drive in South Bend, Indiana. Gaboury intended to turn onto Coral Drive but he missed the turn. One hundred and fifty feet past the Coral Drive intersection, Glenlake Drive ended and the Church driveway began. Gaboury decided to turn around in the church parking lot but he did not know that a steel cable had been stretched across the driveway. This cable was located approximately ten feet up the driveway. Gaboury suffered injuries when he struck the cable.
In his deposition filed with the court and used in the determination of the summary judgment motions by the defendants, Gaboury testified:
“Q. And you were going to go into a parking lot and turn around, right?
A. [Gaboury] Yes.
Q. So if there was a parking lot there, it must have meant the road came to an end?
A. Yes.
Q. And could you see that parking lot before you got to it?
A. I‘m not sure. There‘s a driveway there. I saw the driveway.
Q. You headed for the driveway, didn‘t you?
A. Yes.
Q. I mean you intended to go into that parking lot to turn around?
A. Uh-huh.
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Q. Well, in other words, what I‘m trying to ascertain is whether you, in your own mind, are confident with the fact that you did know how that particular intersection was set up and the fact that there wаs a dead end at Glenlake at that point.
A. Not really, no. I wasn‘t.
Q. You didn‘t know that?
A. Well, I-I don‘t know. I guess I knew there was a driveway there. I didn‘t know there was a cable there is what I‘m trying to say.
Q. Well, I‘m not asking you about the cable. I‘m asking you about the layout of the street.
A. Yeah. I knew that.
Q. You knew that Glenlake ended at that point?
A. Uh-huh.
Q. Yes?
A. Yes.
Q. And you knew the parking lot was there?
A. Yes.
Q. The only thing you didn‘t know is whether a cable would be up?
A. Yes.”
In opposition to the motion for summary judgment, Gaboury filed an affidavit in which he stated the following:
“4. That because of the lighting and the fact that the cable was in no way highlighted, the plaintiff never saw the cable prior to the accident and was never aware that the (sic) had entered the property of the Ireland Road Grace Brethren, Inc.
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6. That the plaintiff knew that a parking lot of a church was at the end of the road; however, he could not ascertain where the end of the road was located.”
“The function of a summary judgment proceeding is to expedite the disposition of disputes in which there is no genuine issue of fact material to the claim involved and a party is entitled to judgment as a matter of law.” Barbre v. Indianapolis Water Co., (1980) Ind.App., 400 N.E.2d 1142, 1145;
Gaboury‘s statements of fact in his deposition and in his affidavit which was filed in opposition to the motion for summary judgment are inconsistent. The affidavit states that Gaboury could not ascertain where the end of the road was located and that he was not aware he had entered the Church property. In the deposition, Gaboury indicates he knew the Church property was there and purposely headed for it to turn around. A significant statement in the deposition reveals that Gaboury knew the layout of the area and everything about it except for the fact that the cable was stretched across the Church driveway. Gaboury also said that he knew there was a “no outlet” sign posted along Glenlake Drive but claimed that he did not see it the night of the accidеnt.
The Court of Appeals held that since there was contradiction between Gaboury‘s deposition and his affidavit, only the trier of fact could choose which of Gaboury‘s statements to believe or disbelieve and therefore the trial court had to accept the statements in the affidavit for purposes of determination of summary judgment. We disagree with the Court of Appeals’ assessment of the trial court‘s duties and responsibilities at this juncture. The trial court certainly had the duty to take into consideration all of the statements made by the plaintiff on which he based his cause of action since all of these statements were under oath. However, there does not seem to be such a conflict in either of his statements that any material fact is left to be determined by the trier of fact. Insofar as the City was concerned, plaintiff Gaboury said he knew of every circumstance except the cable. Although he makes a general statement in his affidavit that he did not know where the street ended and the drive-way began, he does not assign any defect in
At this point we would also note that we do not agree with the Court of Appeals’ assessment of the weight given to Gaboury‘s affidavit. The Court of Appeals held that the trial court could not grant summary judgment when the affidavit contradicted statements made in the deposition. This decision was reached by holding that the trial court may not assess the witness’ credibility on a motion for summary judgment.
This is a question of first impression in this state. Other federal and state jurisdictions have reached decisions contrary to оur Court of Appeals’ decision and we find those cases to be well reasoned:
“If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.”
Perma Research & Development Co. v. Singer Co., (2d Cir.1969) 410 F.2d 572, 578; see also Radobenko v. Automated Equipment Corp., (9th Cir.1975) 520 F.2d 540, 544; Inman v. Club on Sailboat Key, Inc., (Fla.App.1977) 342 So.2d 1069, 1070; Maryland Cas. Co. v. Murphy, (Fla.App.1977) 342 So.2d 1051, 1053; Stefan v. White, (1977) 76 Mich.App. 654, 660, 257 N.W.2d 206, 209; Gamet v. Jenks, (1972) 38 Mich.App. 719, 726, 197 N.W.2d 160, 164; Wachovia Mtg. Co. v. Autry-Barker-Spurrier Real Estate, Inc., (1978) 39 N.C.App. 1, 8, 249 S.E.2d 727, 732.
Gaboury‘s affidavit contradicts sworn statements in his deposition but he fаils to offer any explanation for the discrepancies. We do not feel that issues of fact should be created in this manner and thus hold that “contradictory testimony contained in an affidavit of the nonmovant may not be used by him to defeat a summary judgment motion where the only issue of fact raised by the affidavit is the credibility of the affiant.” Wachovia, supra.
Insofar as the Church is concerned, the only allegation made by the plaintiff is that he knew of all the circumstances except the cable. Plaintiff said that he did not see a sign warning of “no outlet” but he knew about it and was going into the Church parking lot in order to turn around. We must first determine the status of the plaintiff in order to determine what duty was owed him by the Church. “A person entering upon the land of another comes on to the land either as an invitee, a licensee, or a trespasser. The status of the person on the land determines the duty owеd by the landowner to him.” Barbre, supra, at 1145. Trespassers or licensees enter premises for their own convenience and at their own risk and take the property as they find it. Great Atlantic and Pacific Tea Co., Inc. v. Wilson, (1980) Ind.App., 408 N.E.2d 144. A business inviter owes a higher duty to those he invites on his property than he owes to one who is a trespasser or licensee. Blake v. Dunn Farms, Inc., (1980) Ind., 413 N.E.2d 560. Concerning licensees, a landowner only owes him the duty of refraining from willfully or wantonly injuring him or acting in a way which would increase the licensee‘s peril. Barbre, supra. A showing of ordinary negligence by the
Plaintiff Gaboury argues that the cable was a trap or hidden danger and his situation is an exception to the general rule that a licensee takes the land as he finds it. Swanson v. Shroat, (1976) 169 Ind.App. 80, 345 N.E.2d 872, held that while people ordinarily do not have to be warned of obvious dangers, the licensee cannot avoid hidden dangers if he does not know of them. A trap or pitfall has been defined to be a hazard that is concealed and not discernible by the use of reasonable care. Strelecki v. Firemans Ins. Co. of Newark, (1979) 88 Wis.2d 464, 472, 276 N.W.2d 794, 797. Borrowing the language from the Court of Appeals’ opinion,
“[t]he licensor must give reasonable notice or warning to licensees if he does any positive act creating a new concealed danger. Frederick v. Reed (1982) Ala. Civ.App., 410 So.2d 95, 97. The danger must be highly dangerous to life and limb; it inheres in the instrumentality or condition itself such that special precautions are required to be taken to prevent injury. Bichsel v. Blumhost (1968), Mo.App., 429 S.W.2d 301, 306.”
In Bichsel, the court gave the definition of a trap as: 1) a danger which a person who does not know the premises could not avoid by reasonable care and skill; or 2) a hidden danger lurking on the premises which may be avoided if unknown. Now the word “trap” is used generally to mean any kind of hidden dangerous condition. 429 S.W.2d at 304; see 65 C.J.S. Negligence § 63(39) (1966). To say that the trier of fact could find that a cable stretched across a driveway on privatе property, insofar as any duty to a licensee or trespasser is concerned, may be found to represent a trap, is a misinterpretation of the settled law in this area and the failure to recognize the facts in this case. The closing of a driveway by a cable, a gate, or other form of obstruction is not so unusual a situation in our society that it can be considered a dangerous or hazardous condition. It certainly is a condition that can be determined by ordinary and reasonable care on the part of the licensee. Further, there is no showing nor even an allegation that this was done by the church with any willful or wanton intent to harm this plaintiff or anyone else.
The trial court properly granted summary judgment in favor of both defendant City of South Bend and the Ireland Road Grace Brethren, Inc.
Transfer is granted, the opinion of the Court of Appeals is vаcated, and the judgment of the trial court is affirmed.
GIVAN, C.J., and PRENTICE, J., concur.
DeBRULER, J., dissents with separate opinion in which HUNTER, J., concurs.
HUNTER, J., dissents with separate opinion.
DeBRULER, Justice, dissenting.
The church in stretching this cable across its driveway was taking action to prevent entrance upon its property which it had a perfect right to do. It, in like manner as its neighbors on this dead-end street, is undoubtedly troubled by motorists using its drive and parking lot to turn around in, discarding trash there or doing other mischief, and in response put the cable up to рrevent such trespassing motorists from entering. One can also discern here, without fear of wronging these parties, that the cable is removed and the public invited into the driveway and parking area, when the church is open and in use. Thus the cable is at once a physical obstacle to entrance and a signal that the invitation to enter has been withdrawn. In dealing with the unauthorized use of its driveway and parking lot, the church here is in much the same position as a shopping center or office building with appurtenant drives, walks and parking area or public parking lots, which are periodically closed to the public.
This Court in considering the duty of the owner of lands utilized in this manner, in Knapp v. Doll, (1913) 180 Ind. 526, 527, 103 N.E. 385, as noted by Judge Staton in his opinion for the Court of Appeals, stated:
Once an invitation to enter has been extended to the рublic, either expressly or impliedly, it must be withdrawn with proper notice and in a safe manner, so as not to injure those who approach the property with the intent to enter upon it.
Common sense dictates to me that a strand of cable stretched across a roadway would constitute the same type of hazard to those operating motor vehicles, as a wire stretched across a walkway would constitute to pedestrians. In the absence of a sign of reasonable size attached to it, covered with an iridescent or light reflecting material, it would be difficult to see in time to stop forward momentum. No one could fail to appreciate that without some such observable warning, the cable would upset and injure a cyclist. No one could fail to appreciate that without some such warning device a wire across a walk wоuld trip and injure a pedestrian. The law imposes upon landowners who wish to take steps to temporarily close their properties to the public a duty to use such means and measures under the circumstances as are perceivable and understandable by one actually about to enter, so that the mind can come to an appreciation that the owner does not want him to do so, and thus command the body tо turn about and go another way. The church owed such a duty to this plaintiff and a trier of fact could conclude that a breach of that duty occurred here. This plaintiff should have his day before the jury.
In plaintiff‘s deposition he stated:
“I didn‘t know there was a cable there is what I‘m trying to say.”
Referring to the roadway and the point where it ended and the church driveway commenced he stated in the same deposition:
“I knew it ended, but I didn‘t know where it ended exactly.”
There is nothing incоnsistent between these assertions and his affidavit that he could not ascertain where the end of the road was located, as believed by the majority in its opinion. Therefore, there are material issues of fact going to the issue of whether there was a breach of duty in the maintenance of this cable for the trier of fact.
The judgment should be reversed.
HUNTER, J., concurs with separate opinion.
HUNTER, Justice, dissenting.
I agree with my brother Justice DeBruler‘s dissenting opinion on the issue of the summary judgment granted against the Church. I agree that there are material issues of fact involving the Church and that the summary judgment should be reversed.
I also feel that the summary judgment against the City must be reversed. It is well settled in this state that on a motion for summary judgment, the trial court, in determining whether there is a genuine issue of material fact, must consider the facts set forth in the opposing party‘s affidavits as true. Poxon v. General Motors Acceptance Corp., (1980) Ind.App., 407 N.E.2d 1181. The purpose of summary judgment is to provide a procedural device for prompt disposition of cases where there is no genuine issue of material fact to be determined. Krueger et al. v. Bailey et al., (1980) Ind. App., 406 N.E.2d 665; Hayes v. Second National Bank of Richmond, (1978) 176 Ind.App. 299, 375 N.E.2d 647;
In the instant case, plaintiff‘s affidavit raised two factual issues which precluded
Furthermore, I do not agree with the majority‘s broad holding that an affidavit which contradicts testimony in a prior deposition is always insufficient to defeat a motion for summary judgment where the only issue of fact raised by the affidavit is the credibility of the affiant. This holding would require the trial court to become a fact-finder as to the credibility of the affiant before granting the summary judgment motion which is contrary to our prior case law. The trial judge may not weigh the evidence in a summary judgment proceeding. Carroll v. Ellingwood, (1981) Ind.App., 423 N.E.2d 630.
In this case, there was a conflict between testimony in plaintiff‘s deposition and affidavit that created a genuine issue of material fact in addition to the factual question of the City‘s negligence. As Judge Staton has pointed out, if plaintiff‘s affidavit was presented in bad faith, our Trial Rules prescribe relief.
I feel that the trial court erred in granting the City‘s motion for summary judgment and the Church‘s motion for summary judgment. I find that the Court of Appeals’ opinion reversing these judgments is correct. I would deny transfer.