*1 ISA and the directors assert to preserve
Cox has failed this issue on
appeal. Upon reviewing Cox’s motion to memorandum, supporting
correct errors and brief,
as well as his we are convinced that preserved
Cox has this issue. Additionally, court’s failure proce trial to adhere to requirements
dural nature of a
fundamental error since the failure imping
es upon rights process Cox’s to due
fundamental fairness. judgment court’s is reversed proceedings
and remanded for not inconsist-
ent with this opinion.
RATLIFF, P.J., NEAL, J., concur. GABOURY, Appellant-Plaintiff, J.
Daniel BRETHREN,
IRELAND ROAD GRACE
INC., Bend, of South
Appellees-Defendants.
No. 3-1081A278. Appeals Indiana,
Third District.
Oct.
Rehearing 18, 1982. Denied Nov. *2 Warter, Michael Dvo- Christopher
J. A. rak, Bend, appellant-plaintiff. for South Obenchain, Bend, ap- John R. South for Ireland Road Breth- pellee-defendant Grace ren, Inc. Doran, Ready, David T.
John E. South Bend, City of appellee-defendant for South Bend.
STATON, Judge. 1:00 o’clock Dan- approximately At A.M. riding iel was a Kawasaki 350 Gaboury Drive in motorcycle home via Glenlake Bend, Indiana. He intended to turn Drive, onto but he missed turn. Coral Drive, feet after fifty One Coral hundred into terminates the drive- Glenlake Drive way of Ireland Road Grace Brethren to turn Church. decided around the church. He did not up the a know that ten feet He injured across it. stretched when the cable. he struck Ireland Road Grace Breth- Gaboury sued ren, of South Bend to Inc. and injuries damages. They recover for his judgment, summary filed motions granted summary judg- the trial court both ments. contends appeal, Gaboury
On when it the sum- trial court erred mary judgments.
We reverse. purpose underlying summa is to ry judgment procedure terminate action which have factual those causes of a may be determined as dispute and which procedure This is an aid in matter of law. upon litigants undue burdens eliminating However, spurious causes. exposing viewing grant this summary judgment procedure must be applicable Court uses the same standard applied par with extreme caution so Goerg court. Boat & Richards ty’s right Motors, the fair determination Ind.App., Inc.
genuine jeopardized; (Trans, denied) mere im re- We must *3 probability of the recovery by plaintiff does verse the of a grant summary judgment justify not summary judgment a de motion if the record discloses an unresolved fendant. (1977), Bassett v. Glock 174 Ind. issue of material fact or an appli- incorrect App. 368 N.E.2d 20-21. cation of the laws to those facts. Id. summary judgment procedure is I. an application of the law to the facts when South Bend dispute no factual The party exists. seek ing that summary argues City the the of therefore has negligently placed lighting the burden that South Bend the to establish there is no the genuine argues as to of street. He that the had Any issue material fact. fact, duty light doubt the to of sufficiently as to a to the end the an inference therefrom, street he drawn is in of so that could have determined resolved favor party opposing where the street terminated and the church the motion for summary judgment. He stated the began. following Poxon v. General Motors Ac ceptance opposition in his affidavit in Corp. Ind.App., summary to N.E.2d judgment: “4. That because the lighting of A is fact if its material resolution is way fact the cable in no decisive of either the action or a relevant highlighted, plaintiff never saw secondary issue. Lee v. Weston Ind. prior accident and was never App., 24. The factual issue aware that had entered the [sic] genuine is if can not be foreclosed property of the Ireland Grace Road reference undisputed is, to facts. That Brethren, Inc.” factual is genuine issue if those matters properly considered under Ind.Rules of Pro
cedure, plaintiff Rule “6. knew that a Trial 56 evidence That a factual dispute parking lot of a church was at end requiring the trier fact to resolve road; parties’ however, opposing he could not ascertain differing versions. where end of Downing (1979), Stuteville v. the road was located.” Ind.App., 391 N.E.2d deposition in as fol- Gaboury testified his lows: Although permits TR. 56 the in “Q. going And were into a you go affidavits, troduction depositions, admis around, parking right? lot and turn sions, interrogatories and testimony aid “A. [Gaboury] the court in Yes. the resolution of the motion for summary judgment, procedure involved “Q. there, parking if there was a So lot summary Glock, is trial. Bassett v. have came must meant road In supra. determining whether there to an end? genuine fact, material the court “A. Yes. considers oppos those facts set forth in the “Q. you parking could lot And see true, ing party’s liberally affidavits as you got to it? before construes products favor discovery in “A. I’m not sure. There’s a of the opposing party. finally, And all I saw driveway. there. pleadings, evidence, and inferences there “Q. headed for the didn’t driveway, You from are light viewed most favorable you? to the opposing party. Poxon v. General supra. Motors Acceptance Corp., In re- “A. Yes.
“Q. go appears affidavit contradict you boury’s I mean intended into that lot to turn around? the trier of parking Only deposition. Gaboury’s statements choose which of “A. Uh-huh.” disbelieve; neither the trial court believe wit- Appeals may assess the Court of nor “Q. Well, words, try- in other what I’m credibility a motion for ness on ing you, to ascertain is whether Gaboury’s affidavit The facts judgment. mind, with your own are confident Poxon, supra. true.1 are considered to be the fact did know you how granting erred in The trial court up set particular intersection was summary judgment. motion for Bend’s and the fact that there was a dead point. at at that end Glenlake II. really, Not no. I wasn’t.
“A.
*4
“Q.
that?
You didn’t know
The Church
Well,
I
guess
I—I
know.
I
“A.
don’t
for
the motion
trial court
The
driveway
knew there
a
there.
by
stat-
summary judgment of
Church
I didn’t know there was a cable
ing
part:
say.
trying
there
what
I’m
to
upon
[Gaboury] entered
plaintiff
“[T]he
“Q. Well,
asking you
I’m
about
premises for
the defendant’s [Church]
asking you
cable.
I’m
about
a
and as mere licensee
own convenience
layout of the street.
alleged
as such
place
time and
at the
I
“A. Yeah.
knew that.
premises as he found
took the defendant’s
them;
to ex-
right
this
had a
defendant
“Q. You knew that Glenlake ended at
af-
property;
its
clude others from
point?
to the
of the defendant
duty
firmative
“A. Uh-huh.
alleged
place
at the time and
plaintiff
“Q. Yes?
wantonly
or
willfully
was to refrain from
“A. Yes.
to
acting in manner
injuring him or
“Q.
you
And
lot was
parking
knew
(Brack-
peril...”
the licensee’s
increase
there?
added.).
ets
“A. Yes.
argue
appeal, Gaboury seems to
On
“Q.
only thing you
The
didn’t know is
application
trial
its
court erred
would be up?
whether
the law to the facts most favorable
of
added;
(Brackets
emphasis
“A. Yes.”
argue
when the
He seems to
Gaboury.
added.)
off
strung the cable
close
Church
trap
driveway
public
from the
created
argues
The
of
Bend
that Ga-
South
therefore,
have a
the Church did
pitfall;
or
boury’s deposition establishes that he saw
that the
duty to warn him
that the street
and that the
ended
regard
public.
The law
longer open
began;
aware
therefore he was
he was on
of
duty
occupant
an owner or
ing the
of
The
of the
property.
granting
church
coming
premises
on the
land to licensees
summary judg-
for
motion of South Bend
Wayne
this
in Fort
was set forth
upon
not be
facts set
may
ment
based
(1971), 149 Ind.
Bank v. Doctor
Gaboury’s deposition because Ga- National
forth in
presented
Gaboury’s
presented
bad faith
to this rule are
If
in bad
suant
affidavit was
delay,
delay,
solely
purpose
solely
purpose
of
the court
for the
faith
for the
or
or
employing
56(G).
party
v.
find relief under TR.
Donat
shall
forthwith order
Bend can
pay
party
amount of
Business
Investment Trust
to the other
Indiana
them to
428,
filing
Ind.App.
expenses
TR.
147
N.E.2d
259
the reasonable
which
incur, including
56(G)
states:
caused him
the affidavits
fees,
offending
attorney’s
any
reasonable
faith.
in bad
Should
“Affidavits made
guilty
attorney
adjudged
party
be
appear
of the court at
the satisfaction
contempt.”
presented pur-
any of the affidavits
time that
App.
Indiana the entrapment- court erred when it trap-pitfall exception. Id., grant v. Swanson ed the of the Ind.App. 80, Shroat motion Church judgment. 877. This Material exception presumes issues existed. people usually avoid obvious and The dangers jury must decide whether a trap exist need not warned an danger; obvious dangerous ed. It must determine aif con dangers, hidden defects traps, such as concealed dition was and if Church was pitfalls, or can obstructions not be avoided dangerous aware of the condition. Ga- if the licensee does not know of them. boury’s presented affidavit sufficient facts Therefore, if the owner or occupant of from a jury which could conclude that a (licensor) land knows of a hazard and that trap existed.3 concealed, the hazard is he has a duty to Judgment reversed. adequately warn trap.2 the licensee of the Swanson, supra; Strelecki In Firemans J., NEAL, (by designation) concurs. Company surance of Newark (1979), 88 Wis.2d 276 N.W.2d 797. The licen- *5 GARRARD, J., opinion. concurs with give sor must reasonable notice or warning if any positive licensees he does act creat GARRARD, Judge, concurring. new ing a danger. concealed v. Frederick I in concur the result by reached the (1982), 95, Reed Ala.Civ.App., 410 97. So.2d Although majority. judge danger The highly must be dangerous to the plaintiff doubt believed would be un- limb; life and it in inheres the instrumen recover, able grants of summary tality or condition itself such special were, least, judgment premature. at precautions are required to be taken to prevent injury. v. (1968), Bichsel Blumhost city, addition Regarding and in to the 429 Mo.App., S.W.2d 306. credibility by focused on the majority, complaint it be noted that should al- There are no fixed rules for deter leged city street negligently was de- mining whether a condition of the premises signed, constructed and maintained. There dangerous is trap; and is a the facts and narrowing had been no of the issues there- surrounding particu circumstances of each raised, by and the materials before the lar will Royal case control. Calhoun v. summary judgment grant- court when Ins. (1981), La.App., Globe Co. 398 So.2d conclusively ed did not the non-ex- establish question 1168. This is a fact istence these jury allegations. of all Neither can determine. Abney London Co., say juncture negli- Iron Metal we at this that however & Inc. 245 Ga. 214, 216; Calhoun, gent city may 267 S.E.2d have been there see could be supra; Bichsel, supra. jury see The law. will also have no causation as a matter of (1968), Mo.App., property part In Bichsel v. 429 Blumhost “If or a of it has been court, use, quoting devoted, temporarily, public S.W.2d 304 the 65 from even Negligence 63(39), “trap” unsafe, C.J.S. notes that a § render it care must taken not to (1) danger per- has been given defined as which a proper until notice at least has been premises son who does not know the could change; nothing shape of a skill, (2) mislead, avoid reasonable care and or likely trap, place can be or creat- danger premises lurking hidden on which through along public, or which the or ed to or may trap be avoided if known. Now the word individuals, been in have the habit even a few hidden, any generally is used to mean kind of a resorting, passing, or where there is a dangerous condition. they probabili- may go, probability and a ty injury from the condition.” Knapp In 103 v. Doll Ind. Supreme N.E. 385 at 388 our stated: against with the claim problem
The were
church is similar. There not sufficient the court to determine whether
facts before might
or not the cable could or have consti- fact, photo- In trap. although
tuted a showing the
graph apparently Gaboury deposition,
displayed during deposition
it not included when
the other materials before the court nor is the cable oth-
erwise described. are developed
When the facts well as a precluded
be that will be or a
matter of law matter of from significance
recovery. of our decision merely to
today is reinforce conclusion judgment ill-suited is an de- tort resolving
vice for the merits of claims
sounding negligence. Asbury,
Dean ASBURY and Paula
Plaintiffs-Appellants,
INDIANA UNION MUTUAL COMPANY,
INSURANCE
Defendant-Appellee.
No. 1-282A51. Indiana, Appeals
Court of
First District.
Oct.