*1 strong times, is a there many have stated Martin, J. and Donna properly attorney has L. MARTIN David that an presumption Below), to (Plaintiffs his client to Appellants his duties discharged it must presumption this overcome v. or did attorney did what shown (Defendants SHEA, Appellee Richard being a whole trial as resulted do Below). as to shock justice mockery of such No. 1-881A253. State, v. Rahim the court. conscience 343, Leaver Ind., 417 N.E.2d Appeals 959, Ind., 414 N.E.2d State, (1981) District. First Ind., State, Herman 1, 1982. March already indicated 249, As we have April Rehearing Denied by de steps taken were opinion, there and di request attorney fendant's a determi because of defendant rection of defendant's because strategy or
nation of quickly trial as to
anxiety proceed defend evidence shows
possible. defense vigorous conducted
ant's counsel cross-ex examined He
in his behalf. witnesses, many witnesses called
amined behalf, all attended
testify in defendant's court, pretrial proceedings argument made
trial, motions filed competent so in a for and did
when called of this judgment To
manner. us in putting would be now
attorney guess to second hindsight using
position Looking strategy calls. circumstances, we totality of discharged properly here attorney provided to his client
his duties representation. and effective adequate State, State, supra; Herman Lever State, supra. supra; Rahim ap- Naville, Albany, New Michael G. things affirmed. is in all The trial pellants. Mulli- Mattox, 'T. Richard L. PRENTICE, HUNTER, DeBRULER & MacGreagor O'Connor, neaux, Orbison, JJ., concur. appellee. Mattox, Albany, for New charge to GIVAN, J., reduce the would C. ROBERTSON,Judge. manslaughter. initiat- of a lawsuit arose This action Don- David and January
ed on Richard Shea (Martins) na Martin injuries and personal (Shea) recover a motion filed consortium. loss of Procedure, Ind. Rules pursuant dismiss state failure 12(B)(6), for Trial Rule de- January claim, January On March nied on *2 1981, Shea filed a motion to operative reconsider his facts involved in litigation. motion to dismiss which granted on The Court went on to state that: January 1981. The Martins filed an When no evidence has been heard or no complaint amended 9, 1981, on February affidavits have submitted, been 12(B)(6) which was upon dismissed April motion on motion granted should be only where it is 15, 1981. The Martins then filed their no- clear from the face of complaint that tice of praecipe 22, 1981, on June pro- under no cireumstances could relief be ceeded with this appeal. granted. We reverse and remand. bar, In the case at no evidence was heard and no On June affidavits were pertain- submitted David and Donna Mar- ing question tin by attended a raised swimming pool the motion party at the residence of William and Grace dismiss. Consequently, in crucial Clark answered is County, whether there son, any exists by hosted their cireumstances Richard under which During may relief be course of the granted. evening Research several of reveals guests that this is a participated in case impression acts of first in "horseplay" this around state. We pool. David thus turn to Martin an did not examination of participate similar Indi- in these acts ana cases and horseplay. However, jurisdictions cases from other as he stood upon near corner similar facts. pool of the he was struck from by behind one of guests and conse- There is a tendency classify this case quently fell pool, into the striking his head among long premises line of result, bottom. As a he was ren- cases. Most liability cases involve dered quadriplegic, and totally per- physical defects from which injury has been manently disabled. by incurred coming individuals onto the premises. Generally, cases, in Martins such argue the trial court standard of care erred as a owed to an matter of individual law in dismissing their by utilizing determined amended three-fold dis failure to state a among licensees, tinction upon invitees, claim which relief and tres granted. can be passers. See, allege Martins Swanson v. Shroat defendant, Shea, Ind. 345 N.E.2d host of the this party and being present classification scheme inappropriate seems the time in in question, had a present duty to case since control we are not dealing the conduct of using those liability case in such the tradi guest that one while tional sense. engaging Although parties refer, in acts of both horseplay would not briefs, in their cause serious David Martin as a licen guest who see, stipulation was not there is no participating ruling by in such acts. The trial trial court in regard. court this dismissed Consequently, on a 12(B)(6) TR. until such motion for determination failure made at to state a upon level, claim trial unpersuaded which relief we are granted. designate can be Supreme Our Mr. Martin as a Rankin, purposes licensee for State v. 260 Ind. specifi- determining the requisite standard of care cally set forth the defendant, owed applied standard to be Richard Shea. reviewing dismissal actions under T.R. Our attention is focused whether 12(B)(6). The Court stated that: under certain cireumstances host of a is not subject [A] to dismissal swimming pool party duty has a unless appears to a certainty plain- the conduct using of those tiff would not be entitled to relief under one engaging while any set of facts. certain acts seriously injuring another In addition, the Court noted that guest. Duties, rule is the violation of may which based on notice pleadings in negligence, constitute usually by oper arise so-called essentially plead need only ation of the common law statute. defendants. part duty on legal yv. (1977) 149 Mouser Snyder an affirmative imposed That recog have courts Our guard the plaintiffs upon the may arise that a principles nized use flowing from the situations knowledge of certain and invi- their will of such violation autho- was not supra, use Snyder, though that tees, negligence. *3 situa a of a certain was review There upon noted that defendants. by the rized evi weighing the
tion, may, after to court a defendants the part of the duty on fit the cireumstanc- dence, duty to a create protect large to at public the of members is also principle of Application es. motion set in forces injury them Vanda of case in the earlier demonstrated the defend- use which of a result as 332, Ind.App. (1915) 60 Duling R. v. lia Co. prop- their of be made to permitted ants a railroad's involved That case N.E. 70. 109 667. Id. at erty. to belonging animals injuring liability for enter to been allowed which had to involving a cases Indiana Other the rail property, when the railroad's onto of conduct standard certain a to conform that warned previously had been road 50, 55 115 (1944) Ray v. Cory there.1 be found likely to were animals Griesel, 261 (1974) v. Miller 117 N.E.2d supra, Cory, fac In similar 701. 604, somewhat N.E.2d involving a 308 case Ind. A place Demo Park aof operator of Glen is that that situation held court tual 139 Inc., Kylsa to use Club, v. required cratic entertainment public Park, Glen In 13 for place safe keep such 2 care to reasonable tav a restaurant proprietor supra, a held may be to do failing for patrons injured was who plaintiff aby sued ern neglect. by his occasioned injuries liable belligerent two assault of an a result as persons that held Miller, supra, In defend alleged plaintiff patrons. whose children, others with entrusted unpro their protect to failed ant may they likely that it make characteristics could Admitting that assault. voked a things, have unreasonable somewhat facts, do involving those precedent Indiana no to law by common recognized responsibility ver plaintiff's affirming court, charges. their law supervise principles upon dict, relied Min as the well innkeepers, concerning have rec jurisdictions of other number A Hotel v. Nicollet case nesota a cer to conform duty to host's a ognized Con 373, N.W.2d 95 Minn. 254 to so as of conduct standard tain passing ato involved nolly, supra, See, premises. upon injury who to a hotel below street on pedestrian (1944) 24 Cal.2d Oettinger Stewart rowdy patrons by some injured (1972), argued Dimino Mangione The defendants P.2d 148 establishment. Potts unau 39 A.D.2d for the liable N.Y.S.2d held not be they could who, while P.2d 825. Wash.2d a third (1963), acts Amis thorized occu an injury to facts involved Dimino, supra, their Mangione v. response sidewalk. of a pant at bar. case in the to those similar stated: Court argument husband plaintiff's Mangione, invited other pool into the that, thrown briefly stated be may It leg on result, struck aas guests, and or a patron a though the into leading steps rail of defendants, guest of Defendants injuries. permanent causing the time them between existed did happenings these witnessed had rise gave injury place of avoid care due exercise principle also be shall Support of law can for this themselves, vili- protect others Michigan Southern Shore and found in Lake always commensurate required is gance (1908), 41 Ind. Railway Company v. Brown apprehended." be whitch court 26 in 84 N.E. of every person stated: "The law requires premises. According Supreme defect plaintiff. The nothing protect Rankin, upheld expressed the lower su- Appellate Division standards State complaint and held that pra, court's decision should not be dismissed for so, doing of action. appears did state cause failure to claim unless it state a Court stated that: from the face of the that under granted. relief owner, no circumstances could
A or one in control foregoing from the lines of is evidence possession property, of real has the authority present case does not fall the conduct of those whom he it, Rankin permits upon which he is within the standards to enter State dismissing a Trial required protection to exercise for the others. Id. 332 at 685. N.Y.S.2d 12(B)(6) authority Rule motion. There is supporting the Martins's claim to warrant jurisdictions have classified the dis Some the existence of a cause of action tinction between condition of the the Martins of whether and conduct of the defendant in terms of *4 in of action is not one to prevail that cause See, passive negligence. and active Oet reasons, For these be decided this court. Stewart, tinger supra. occupier's The we trial court erred as a hold that freedom from exists in the case of dismissing the Martins's matter of law passive injury negligence or where the is to state a claim for failure prem the unsafe condition of the granted under T.R. which relief can be ises. contrary, Where on the 12(B)(6). We remand this case back to negligent results from the acts of the occu proceedings further in- trial court for also, pier, immunity disappears. See opinion. consistent with this (for 156 A.LR. 1221 further discussion of following passive those cases the active and J., RATLIFF, P. concurs. theory negligence). authority acknowledging An additional NEAL, J., opinion. dissents
general principles
regard
duty
of law in
NEAL, Judge, dissenting.
control conduct
is the Restatement
ma-
respectfully
$18
dissent from the
I must
(1965).
Torts 2d
of the Restate-
Section
I believe
jority opinion, because
ment reads as follows:
premises liability are control-
principles of
permits
person
the actor
a third
to use
ling.
possession
other-
land or chattels
servant,
is,
present,
wise than as a
he
if
undisputed that David Martin was a
It is
under a
to exercise reasonable care
Indi
guest of Richard
Under
social
so as to control
of the third
the conduct
was, therefore, a licen
ana law Mr. Martin
him from intention-
see,
him were
and Mr.
duties toward
Shea's
ally harming others or from so conduct-
Shroat, (1976) 169 Ind.
limited. Swanson
ing himself as to create an unreasonable
Wayne
Fort
Na
them,
bodily
risk of
harm to
if the actor
Doctor, (1971) 149
tional Bank v.
(a) knows or has
know
he
reason to
presumed that
defective, although poten- some contained hunting frogs tiff was in the tall weeds tially dangerous conditions. spillway grand near a his father and where working. grandfather, father were The Club, Glen Park Kylsa, Democratic Inc. v. property, accidently who owned the ran into the child with his truck. The case focused involved a tavern owner's dangerous not on the tall weeds as a condi protect invitees them from each other. tion, grandfather's The but conduct. plaintiff injured by patron was only duty stated that "the who allegedly was known the defendant violent; property upon owner of the which the licen alleged there was no defect dangerous or willfully condition in see enters is to refrain from Nevertheless, Pierce, themselves. intentionally injuring the case was de the licensee". not a or licensee. mere Hence, the defendant hotel held lia- was trespasser negligence ble for its invi- sufficient passersby liability. impose throwing adjoining tees who were articles from the the hotel on upper impact building stories street below. took this case beyond premis- Since the not Prosser, rules. See at 351-57. es supra The court supra at permit been should have jury
held that had grandfather decide whether
ted to child notice
constructive willfully he had acted whether
present and short, the standard wantonly. was no activity out an carrying
care for maintaining proper from that
different
ty. require affirm- above the cases
I believe judgment. court's of the trial
ance occupier of land that an owner
clear the, safe make required to not required though the guests,
social simple, inexpensive, might maintenance interests. with his own consistent property owner expect
we do not property, we should his own
care for the more difficult
require him shoulder guests from protecting
responsibility would affirm other. I
each court.
of the trial EMIG, Administratrix L.
Candace Deceased, Busack, Agnes
Estate Plaintiff-Appellant, THERAPY PHYSICAL
PHYSICIANS' Defendant-Appellee.
SERVICE, INC.,
No. 3-281A55. *7 Appeals of
Court of
Third District. 9, 1982.
March Hammond, appellant. Ruman, I. Saul 5,May Rehearing Denied Custer, Stults, MeClean, Ku- T. Sherman Hand, McClean, Gary, Albert C. tansky & Hammond, ap- Wilk, Hand, & Muenich pellee. Judge.
HOFFMAN, Presiding acting as administratrix Emig, Candace estate, negative appeals a