Indiana Law Review


NOTES

PREMISES LIABILITY: A CRITICAL SURVEY OF
INDIANA LAW

It is surprising hov/ much may sometimes be discovered
by reading the cases. When, in the development of a rule

over the course of a century, the courts have assigned a

particular reason for it, it need not be concluded that the

reason for it is the only one, or that it is the right one;

but surely it is entitled to respectful consideration, and to

some attempt to discover what it means, and what may lie
behind it.'

I. Introduction

Duty has been said to be an "expression of the sum total of
those policy considerations which leads the law to say that a
particular plaintiff is entitled to protection."^ The development
of the law of negligence during the nineteenth century marked the
inception of a judicial policy tov/ards requiring all citizens to be-

have as reasonable and prudent men.^ At the same time, however,
the social desirability of permitting the possessor"^ to use his land

'Prosser, Business Visitors and Invitees, 26 Minn. L. Rev. 573, 611 (1942),

^W. Prosser, Law of Torts § 54, at 325-26 (4th ed. 1971) [hereinafter
cited as Prosser],

^In Heaven v. Pender, 11 Q.B.D. 503 (1883), the court first enunciated
this policy when it stated:

[W]henever one person is by circumstances placed in such a position
with regard to another that everyone of ordinary sense who did think
would recognize that if he did not use ordinary care and skill in his
own conduct with regard to those circumstances he would cause dan-
ger or injury to the person or property of the other, a duty arises to

use ordinary care and skill to avoid such danger.

Id, at 509,

'Restatement (Second) of Torts §328E (1965) states:

A possessor of land is
(a) a person who is in occupation of the land with intent to con-
trol it, or

1001



1002 INDIANA LAW REVIEW [Vol. 7:1001

as he saw fit remained deeply rooted in English and American
jurisprudence. In balancing these interests, common law judges
developed certain rules of law which made the concept of negligence
more compatible with the traditional notion that "the owner was
sovereign within his own boundaries and . . . might do what he
pleased on or with his own domain."^ By classifying entrants as
invitees, licensees, and trespassers and ascribing a gradient duty

of care according to status, courts exempted the landowner from
the obligation of a single duty of care to all persons under all cir-

cumstances. The province of the jury was thus circumscribed, and
the scope of the possessor's duty was based entirely upon the cate-
gory in which the entrant belonged. The effect of the classification
system is the retention of greater power in the hands of judges to
protect the interest of land ownership than would have been pos-
sible under the law of negligence.* A substantial proportion of
cases are disposed of by directed verdicts and summary judg-
ments without reference to the reasonableness of the defendants*
conduct.^ Premises liability remains today the largest area of the

(b) a person who has been in occupation of the land with intent to
control it, if no other person has subsequently occupied it with intent
to control it, or

(c) a person who is entitled to immediate occupation of the land, if
no other person is in possession under Clauses (a) and (b).

^F, BoHLEN, Studies in the Law of Torts 163 (1926).

Even if the judges had been mentally prepared to assess the liability
of the landowner towards visitors simply by reference to the conduct
of the reasonable man, they would not have been willing to leave the
landowner to the verdict of a jury belonging, as a general rule, to
the class of potential visitors to property rather than to that of land-

owners.

Marsh, The History and Comparative Law of Invitees, Licensees and TreS'
passers, 69 L.Q. Rev. 182, 185 (1953).

Dean Green has described the functions of the judge and jury in negli-
gence cases as follows:

The judge passes his judgment on so-called questions of law—rights
and duties; the jury on the so-called questions of fact—negligence,
damage and causal relation. The judge is the dominant factor in this
arrangement. He not only passes judgment first, but determines in
what cases a jury can properly pass judgment at all ... .

Green, The Duty Problem in Negligence Cases, 28 COLUM. L. Rev. 1014, 1023
(1928).

^In abrogating the common law rules, courts have expressed concern that
the use of summary judgments, nonsuits, and directed verdicts had been ex-
cessive. See Smith v. Arbaugh's Restaurant, Inc., 469 F.2d 97 (D.C. Cir.



1974] PREMISES LIABILITY 1003

law in which the concept of duty operates as a limitation upon

negligence liability.®

The policy reasons behind protecting the interest of land
ownership with minimal regard for the interest of human safety
have lost their persuasive force. Contemporary societal values no

longer reflect a reluctance to protect personal rights at the expense

of property rights.' Reasonable people do not vary their conduct

solely on the basis of whether an entrant is an invitee, a licensee,

or a trespasser. '° The general availability of liability insurance
at inexpensive rates presents a legitimate but seldom mentioned

policy consideration.'^ There is a trend in Indiana law towards

a fuller application of the standard of reasonable care under the

circumstances in other areas of tort liability. Technical status

classifications that have in the past insulated certain entities from
the duty of due care have been eliminated in the areas of govern-

mental immunity,'^ interspousal immunity,'^ and products lia-

bility.^^

The trend towards broader negligence liability has not left
unscathed the possessor's special privilege to be careless. The
tendency of the law today is to impose upon the possessor, like
other members of society, a duty to use reasonable care to avoid

1972) ; Rowland v. Christian, 69 Cal. 2d 108, 111, 443 P.2d 561, 563, 70 Cal.
Rptr. 97, 99 (1968).

«Prosser § 57, at 351.

^"[A] man's life or limb does not become less worthy of protection by
the law , . . because he has come upon the land of another without permission
or with permission but without a business purpose." Rowland v. Christian,
69 Cal. 2d 108, 118, 443 P.2d 561, 568, 70 Cal. Rptr. 97, 104 (1968).

^

' Dean Prosser concludes that the availability of liability insurance serves
as a valid additional reason for abrogating obsolete rules long under attack
because of their own inherent weakness and lack of logic or policy. See Pros-
SESi § 83, at 535. See also Comment, Liability of a Land Occupier to Persona
Injured on His Premises: A Survey and Criticism of Kansas Law, 18 U. Kan.
L. Rev. 161, 162 (1969).

'^Campbell v. State, 284 N.E.2d 733 (Ind. 1972) (tort immunity of state
abolished with reservations) ; Perkins v. State, 252 Ind. 549, 251 N.E.2d 30

(1969) (tort immunity of state abolished as to proprietary functions).

'^Brooks V. Robinson, 284 N.E.2d 794 (Ind. 1972) (doctrine of interspousal

immunity abrogated in Indiana).

'^J.I. Case Co. v. Sandefur, 245 Ind. 213, 197 N.E.2d 519 (1964) (privity

requirement for negligence actions stricken). See also Note, Products Liabil-

ity in Indiana: Can the Bystander Recover?, 7 Ind. L. Rev. 403 (1973).



1004 INDIANA LAW REVIEW [Vol. 7:1001

injury to others. ^^ In the landmark case of Rowland v. Christian,^''
the California Supreme Court abrogated the common law classi-
fication system and now requires that the possessor exercise rea-
sonable care toward any entrant. Under the Rowland approach,
the status of the entrant is but one factor to be considered in

determining liability. Several jurisdictions have followed Row-
land,^ ^ and others have abolished the licensee—invitee distinction
by statute^® or judicial decision.^' In England, a common duty of
care was imposed by statute upon possessors of land toward all
visitors, whether licensees or invitees.^° The United States Supreme
Court has termed the common law system a "semantic morass"
and has refused to extend its application to the law of admirality.^'

In Indiana, however, the transition toward holding the possessor

to a single duty of care under all circumstances has been a piece-

meal process. As courts have perceived the harshness of the pres-
ent system, they have carved out exceptions to the general rules

and have misapplied existing standards to reach a desired result.

'^The United States Supreme Court has suggested that the common law
is moving toward the imposition of "a single duty of reasonable care in all
circumstances." Kermarec v. Compagnie Generale, 358 U.S. 625, 630-31
(1959). See also Simmel v. New Jersey Co-op. Co., 47 N.J. Super. 509, 136
A.2d 301 (1957), rev'd on other grounds, 28 N.J. 1, 143 A.2d 521 (1958).

"669 Cal. 2d 108, 443 P.2d 561, 70 Cal. Rptr. 97 (1968). The Rowland ap-
proach has received considerable praise from the commentators. See, e.g.,
Comment, Rowland v. Christian and Washington Land Occupiers Liability,
5 GONZAGA L. Rev. 235 (1970) ; Comment, A Re-Examination of the Land
Po88essor*s Duty to Trespassers, Licensees, and Invitees, 14 S.D.L. Rev. 332
(1969) ; Comment, Liability of a Land Occupier to Persons Injured On His
Premises: A Survey and Criticism of Kansas Law, 18 U. Kan. L. Rev. 161
(1969) ; Comment, Smith v. Arbaugh's Restaurant, Inc., and the Invitee-
Licensee-Trespasser Distinction, 121 U. Pa. L. Rev. 378 (1972) ; 44 N.Y.U.

L. Rev. 426 (1969); 41 Tenn. L. Rev. 190 (1973); 25 Vand. L. Rev. 623
(1972).

'^See Smith v. Arbaugh's Restaurant, Inc., 469 F.2d 97 (D.C. Cir. 1972)

;

Mile High Fence Co. v. Radovich, 489 P.2d 308 (Colo. 1971) ; Pickard v. City
of Honolulu, 452 P.2d 445 (Hawaii 1969). See also Roseneau v. City of

Estherville, 199 N.W.2d 125 (Iowa 1972).

'^See Conn. Gen. Stat. Rev. § 52-577a (Supp. 1974).

"5ee Alexander v. General Accident Fire & Life Assurance Corp., 98
So. 2d 730 (La. App. 1957) ; Peterson v. Balach, 199 N.W.2d 639 (Minn. 1972).
See also 25 Vand. L. Rev. 623, 629 (1972).

^°Occupiers' Liability Act, 5 & 6 Eliz. 2, c. 31 (1957).

2'Kermarec v. Compagnie Generale, 358 U.S. 625, 631 (1959).



1974] PREMISES LIABILITY 1005

Rather than assuring consistency and stability in the law, the com-

mon law system has bred confusion and complexity.

The purpose of this Note is to survey the law of premises

liability in Indiana in an effort to demonstrate that adherence to

the common law classification system no longer serves a rational
purpose. The results attained by misapplying the common law
rules and establishing exceptions thereto approximate the results

that would be attained by applying a standard of reasonable care

under the circumstances. The law of negligence has permeated

the area of premises liability to such an extent that a more rational
process is needed to facilitate judicial expression of policy changes

which have occurred in Indiana law since the common law system
was adopted.

11. Trespassers

A. The Wilful-Wanton Rule

A trespasser is an unwelcome intruder upon the property of
another.^^ He enters without right, express or implied consent, or
express or implied invitation. The status of trespasser is the lowest
on the legal scale of the common law classification system. The
general rule as stated by Indiana courts is that the only duty
owed to a trespasser by the possessor is to refrain from wilful,
wanton, or intentional injury.^^ The trespasser assumes all risks
incident to his presence and is required to take precautions for
his own safety. Accordingly, the possessor is under no duty to
anticipate the presence of trespassers, to maintain a lookout for

them, to guard against their intrusion, or to keep his property in
such a safe condition as to not endanger them.^^

It has been said that a function of the common law is to
develop rules which constitute the ''most desirable and practicable

"""^See, e.g., Chicago, S.S. & S.B.R.R. v. Sagala, 140 Ind. App. 650, 221
N.E.2d 371 (1966). See also Restatement (Second) of Torts §329 (1965).

^'E.g., Calvert v. New York Cent. R.R., 210 Ind. 32, 199 N.E.2d 239
(1936) (conduct of the possessor); Lingenfelter v. Baltimore & O.S.W. Ry.,
154 Ind. 49, 55 N.E. 1021 (1900) (condition of premises). It is often stated
that the only duty owed by the possessor is to refrain from wilful or inten-
tional injury. See, e.g., Chicago, S.S. & S.B.R.R., 140 Ind. App. 650, 221
N.E.2d 371 (1966) ; Standard Oil Co. v Scoville, 132 Ind App. 521, 175 N.E.2d
711 (1961). However, a reckless disregard of the consequences may be so
great as to imply a willingness to injure and entitle a trespasser to recover.
Palmer v. Chicago, St. L. & P.R.R., 112 Ind. 250, 14 N.E. 70 (1887).

24Neal V. Home Builders, Inc., 232 Ind. 160, 111 N.E.2d 280 (1953).



1006 INDIANA LAW REVIEW [Vol. 7:1001

compromise from a social standpoint betv/een conflicting interests,

and to modify these from time to time to meet changing social

conditions and needs . . . ."^^ Such an endeavor necessarily involves

judicial reexamination of the rationales behind the common law
rules in light of changing social conditions. Unfortunately, few

Indiana courts have supplemented their verbal allegience to the

wilful-wanton rule with an effort to justify its application.^^ The

commentators, in criticizing the rule, have offered several possible

justifications for the disjunction between the law of premises

liability, which emphasizes status, and the lav/ of negligence, which

emphasizes reasonableness." Most agree that the difference exists

because the rules pertaining to premises liability predate the de-

velopment of negligence theory.^® On this basis, the wilful-wanton
rule can no longer be said to be a legitimate compromise between

the competing social interests of land ownership and human life.
It is but an historical remnant of a society deeply rooted in the
concept of land ownership. In modern society, at least three reasons
can be offered for replacing the wilful-wanton rule with the gen-

eral rules of negligence.

^^Eldredge, Tort Liability to Trespassers, 12 Temple L.Q. 32 (1937).

^*The limited duty accorded the possessor cannot be based upon the prem-
ise that the law does not require him to anticipate the presence of others since
the wilful-wanton rule has been applied with equal vigor to licensees. See

Cannon v. Cleveland, C.C. & St. L. Ry., 157 Ind. 682, 62 N.E. 8 (1901). The
presence of a licensee is always to be expected. F. Bohlen, Studies in the
Law of Torts 61 (1926). Dicta in older cases suggest that the trespasser is
a wrongdoer unworthy of being treated with reasonable care. See Brooks v.
Pittsburgh, C.C. & St. L. Ry., 158 Ind. 62, 68, 62 N.E. 694, 696 (1904) (a
trespasser can assert but a wrongdoer's right). This rationale is based upon

the notion of wrongdoing of a society in which the trespasser was an outlaw
or poacher whose entry was both unanticipated and resented. See Smith v.
Arbaugh's Restaurant, Inc., 469 F.2d 97 (D.C. Cir. 1972).

^ ^Professor James systematically refutes the following justifications for
the limited duty of care owed to trespassers by possessors: (1) people are
not likely to trespass, so the possessor may disregard their possible presence,
(2) the duty of due care would impose an unreasonable burden on land use,

(3) the trespasser is a wrongdoer whose presence amounts to contributory

negligence, and (4) the trespasser assumes all risks incident to his presence.

See James, Tort Liability of Occupiers of Land: Duties Oived to Trespassers,

63. Yale L.J. 145, 150-53 (1953). See also Prosser §58, at 366-68; Keeton,
Assumption of Risk and the Landowner, 22 La. L. Rev. 108 (1961) ; 25 Vand.
L. Rev. 623, 625 (1972).

^^See, e.g., Hughes, Duties To Trespassers, 68 Yale L.J. 633, 694 (1959);
Marsh, supra note 6, at 184.



1974] PREMISES LIABILITY 1007

First, the wilful-wanton rule is harsh^'' and inflexible.^° Its

application substitutes the standard of care of a society in which

the trespasser was an
*

'outlaw or poacher whose entry was both
unanticipated and resented . . ."^^ for modern community stan-
dards of care. The jury, the final arbiter of community standards

in our system of jurisprudence, must restrict its inquiry to ques-

tions of status rather than questions of reasonableness.^^ As a
result, the possessor is not required by law to act reasonably to-

ward trespassers, a proposition quite inconsistent Vv^ith the values
of a civilized society. Secondly, the liability of a possessor to an

injured trespasser could be harmoniously and beneficially absorbed

into negligence theory with minimal adverse effect upon the inter-

est of land ownership.^^ In numerous cases in which the wilful-

wanton rule has been applied, the same result of nonliability could
have been reached had the court applied the general rule of reason-

able care under the circumstances. When the trespasser is con-
tributorily negligent,^"* or when his presence is unknown and could
not reasonably have been anticipated,^^ it is unlikely that recovery

29<See Neal v. Home Builders, Inc., 232 Ind. 160, 111 N.E.2d 280 (1953).
In Neal, a young mother was killed while attempting to rescue her three year
old child who was trapped inside a semicompleted dwelling house. Recovery
was denied, although the house was unattended and unsecured and children
were known to play therein. Compare Wilinski v. Belmont Builders, Inc.,
143 N.E.2d 69 (111. Ct. App. 1957).

^°Perhaps the most extreme reflection upon the rigidity of the common
law classification system is Lord Dunedin's statement in Robert Addie &
Sons V. Dumbreck, [1929] A.C. 358: "Now the line that separates each of
these three classes [invitees, licensees and trespassers] is an absolutely rigid
line. There is no half-way house, no no-man's land between adjacent terri-
tories." Id. at 371. See Prosser § 58, at 357 n.63.

^' Smith V. Arbaugh's Restaurant, Inc., 469 F.2d 97, 102-03 (D.C. Cir.
1972).

^^See id. at 104. When the evidence concerning the status of the entrant
is conflicting or inconclusive, status is a question of fact for the jury. Sil-

vestro V. Walz, 222 Ind. 163, 51 N.E.2d 629 (1943).

^^See Hughes, Duties to Trespassers, 68 Yale L.J. 633, 634 (1959).

^^See, e.g., Krenzer v. Pittsburgh, C.C. & St. L. Ry., 151 Ind. 587, 52
N.E. 220 (1898) (person sleeping on a railroad track) ; Dull v. Cleveland,

C.C. & St. L. Ry., 21 Ind. App. 571, 52 N.E. 1013 (1899) (person standing
on track without taking precautions as train approached). Assumption
of risk has also been invoked to deny recovery, especially when the en-
trant has proceeded across premises in the dark. See, e.g., Lingenfelter v.
Baltimore O.S.W. Ry., 154 Ind. 49, 55 N.E. 1021 (1900).

^^See, e.g., Jordon v. Grand Rapids & I. Ry., 162 Ind. 464, 70 N.E. 524
(1904).



1008 INDIANA LAW REVIEW [Vol. 7:1001

would be permitted under any standard of care short of strict

liability. Thirdly, the cases reflect a judicial disenchantment with

the privilege to be careless which the strictly applied wilful-wanton

rule confers upon the possessor. The harsh and often unjust results
of applying the wilful-wanton rule have engendered exceptions for

child trespassers,^^ dangerous conditions,^^ and dangerous activ-

ities.^° Moreover, the misdefinition of the terms "wilful" and

"wanton,"^' and the elevation of a trespasser to the status of an

invitee'^° have emerged as judicial techniques which mitigate the

harsh operation of the v/ilful-wanton rule. Although such excep-

tions and techniques enable courts to move closer to the issues
worthy of scrutiny in a given case, their artificiality and com-
plexity are unfortunate. The Indiana judicial process should not be
burdened with the confusion which stems from the adherence to a
rule which, in fact, often results in misrepresentations of the true

basis of a court's decision.

B. Judicial Modification of the Wilful-Wanton Rule

Indiana courts have not been hesitant to strictly apply the

wilful-wanton rule to situations in which the presence of tres-
passers was unknown and unforeseeable."^' Under these circum-
stances, there is no reason to depart from the rule since the same
result of nonliability is reached whether it be said that the posses-

sor was not guilty of wilful and wanton misconduct or that he
exercised reasonable care under the circumstances."^^ Under either
standard it would be manifestly unjust to require a possessor to
conduct his activities or make his premises safe on the basis of a
remote likelihood that someone might intrude thereon and be

'"'See, e.g., Pier v. Shultz, 243 Ind. 200, 182 N.E.2d 255 (1962).

^^See, e.g., Harris v. Indiana Gen. Serv. Co., 206 Ind. 351, 189 N.E. 410

(1934).

^^See, e.g., Indiana Harbor Belt R.R. v. Jones, 220 Ind. 139, 41 N.E.2d
361 (1942).

^"See, e.g., Cannon v. Cleveland, C.C. & St. L. Ry., 157 Ind. 682, 62
N.E. 8 (1901).

^°5ee, e.g.. New York, C. & St. L. Ry. v. Mushrush, 11 Ind. App. 192,
37 N.E. 954 (1894).

"^^See, e.g., Jordon v. Grand Rapids & I. Ry., 162 Ind. 464, 70 N.E. 524
(1904) (railroad company not required to anticipate the presence of a child
sitting on top of freight car on a sidetrack). This type of case is easily dis-
posed of with a status determination followed by the assertion that the posses-
sor owed no duty to the trespasser.

42See Peaslee, Duty to Seen Trespassers, 27 Harv. L. Rev. 403 (1914).



1974] PREMISES LIABILITY 1009

injured. However, when a possessor does not take due precautions
for the safety of trespassers he knows are present or are likely to

be present upon his premises, his conduct moves into the realm of
unreasonableness. At this point, the courts have retreated from
a strict application of the wilful-wanton rule and have moved
toward the standard of reasonable care under the circumstances.

Under a strict interpretation of the wilful-wanton rule, the
possessor may assume, as a matter of law, that trespassers are
not present or likely to be present upon his premises.^^ This is a

reasonable assumption, however, only to the extent it is in accord

with the facts of the case at hand. If the facts are such that the

possessor knows that the likelihood of intrusion is high, the as-
sumption is based upon a premise of nonexistent fact. Thus, a
number of jurisdictions have imposed a duty of care upon the
possessor when the burden of anticipation is slight when compared
with the probability of harm.^^ Often termed the "frequent tres-

passers upon a limited area" exception to the wilful-wanton rule,

it invokes the negligence formula when the possessor is aware that
a substantial number of persons are in the habit of intruding upon
his premises at a particular point."*^ In regard to such persons,

the possessor is under a duty of reasonable care to discover their

presence and to conduct his activities with regard for their safety.
In Indiana, the wilful-wanton rule is generally invoked to deny
the existence of a duty of due care and the possessor is not required
to anticipate the presence of trespassers. Before such a duty will

be found to exist, the circumstances must be such that an invitation
can be implied.^^ In a few cases, however, the invitation fiction
has been attenuated to encompass situations in which the pos-
sessor's conduct could hardly be said to constitute "inducement'* to

enter. For example, persons crossing railroad tracks have been
held to be invitees of a railroad company,''^ v/hile common sense

""'E.g., Cannon v. Cleveland, C.C. & St. L. Ry., 157 Ind. 682, 62 N.E. 8
(1901).

'^'*Prosser § 58, at 360-61. Prosser states that most courts have adopted
this rule.

*'Id.

""See, e.g., Chicago & E.I.R.R. v. Hedges, 105 Ind. 398, 7 N.E. 801 (1885)
(persons crossing tracks to approach depot held to be licensees by invitation).
But see Pittsburgh, C.C. & St. L. Ry. v. Philpot, 75 Ind. App. 59, 127 N.E.
827 (1920) (accident in switchyard).

*^See New York, C. & St. L. Ry. v. Mushrush, 11 Ind. App. 192, 37 N.E.
954 (1894) (railroad company derived economic benefit from persons cross-
ing track at a particular point since it was spared the expense of building a
public crossing).



1010 INDIANA LAW REVIEW [Vol. 7:1001

dictates that their presence is both unwelcome and costly to the

company/° Invoking the creative power of the courts to elevate

the status of a trespasser to that of an invitee is a cumbersome

means for reaching reasonable results. It is a means which is made
necessary by continued adherence to the wilful-wanton rule. The

better reasoned Indiana cases have imposed a duty of anticipation

simply on the basis of probable presence upon premises where a

dangerous activity is being carried on^' or where a highly danger-

ous condition exists.^°

A more significant erosion of the wilful-wanton rule in In-
diana occurs when the presence of a trespasser is clearly known
by the possessor. In this situation, courts frequently misdefine

the terms ''wilful" and "wanton" to deny the substance of the
rule. Strictly applied, the terms "wilful" and "wanton" are used

to characterize a state of mind indicating a conscious and reckless
indifference to the consequences of one's act.^' If the possessor

were indeed exempt from the standard of reasonable care, he would
not be held liable for injuring a trespasser unless his conduct

transcended negligence.^^ However, in Cannon v. Cleveland, Chi-
cago & St. Louis Railway,^^ sl case in which recovery was denied

^^" Railroad companies are not eleemosynary institutions interested in

shortening the weary stranger's number of steps home by throwing their
private property open as a short-cut." Eldredge, Tort Liability to Trespass-
ers, 12 Temple L.Q. 32, 36 (1937).

^"^See Indiana Harbor Belt R.R. v. Jones, 220 Ind. 139, 41 N.E.2d 361
(1942); Cleveland, C.C. & St. L. Ry. v. Means, 59 Ind. App. 383, 104 N.E.
785 (1915).

^""See Harris v. Indiana Gen. Serv. Co., 206 Ind. 351, 189 N.E. 410 (1934).

^^Wyant v. Lobdell, 277 N.E.2d 595 (Ind. Ct. App. 1972) (words "wilful"
and "wanton" relate to the state of the actor's mind rather than to the
nature of his act) ; Bybee v. Brooks, 123 Ind. App. 129, 106 N.E.2d 693 (1952)
(reckless indifference to consequences under circumstances which show actor
has knowledge of situation and that injury is probable to result).

Wilfullness and negligence are diametrically opposite to each other.
One imports inattention, inadvertence and indifference, while the
other imports intention, purpose and design. There can be no negli-
gence with intent, and no wilfullness without intent.

Barrett v. Cleveland, C.C. & St. L. Ry., 48 Ind. App. 668, 671, 96 N.E. 490,
492 (1911). Under code pleading, wilfulness and negligence could not be
pleaded in the same paragraph. Kizer v. Hazelett, 221 Ind. 575, 49 N.E.2d
543 (1943).

53 157 Ind. 682, 62 N.E. 8 (1901).



1974] PREMISES LIABILITY 1011

because the presence of a trespasser was unknown to the posses-
sor, the court stated that the only duty owed to trespassers and
bare licensees is "not to injure them wilfully or wantonly, but to

use reasonable care to avoid injury after their danger is dis-

covered."^^ As a practical matter, this is simply another way of
stating that the possessor is bound by a duty to conduct his activ-

ities with reasonable care under the circumstances." The results
of cases involving known trespassers have generally been consistent
with the results that would have been reached had the general

rules of negligence been forthrightly applied. The possessor may
reasonably assume that once cognizant of the danger, the tres-
passer will take precautions for his own safety.^^ Accordingly, the
duty of care imposed upon the possessor will generally be fulfilled

by a warning.^^ If the trespasser is a child^® or a helpless adult,^'
the possessor cannot reasonably assume that he will remove him-
self from his position of peril. In this situation, and in situations
in which it is clear that the warning has not been heard,*° the
possessor must use every means at hand to prevent injury.*'

The duty of due care arising from the possessor's knowledge
of a trespasser's presence is generally justified on the basis of

the "last clear chance" doctrine." Since the doctrine applies only

=^/ci. at 689, 62 N.E. at 11, quoting 3 B. Elliott & W. Elliott, Law of
Railroads § 1250, at 589 (2d ed. 1907). See also Parker v. Pennsylvania Co.,
134 Ind. 673, 34 N.E. 504 (1893).

^^For an excellent discussion of how the duty owed to known trespassers
approximates a duty of reasonable care under the circumstances, see Peaslee,
Duty to Seen Trespassers, 27 Harv. L. Rev. 403 (1914).

^"•E.g., Ullrich v. Cleveland, C.C. & St. L. Ry., 151 Ind. 358, 51 N.E. 95
(1898) ; Palmer v. Chicago, St. L. & P.R.R., 112 Ind. 250, 14 N.E. 70 (1887).

^^See, e.g., Pittsburgh, C.C. & St. L. Ry. v. Judd, 10 Ind. App. 213, 36
N.E. 775 (1894).

^^Indianapolis, P. & C.R.R. v. Pitzer, 109 Ind. 179, 6 N.E. 310 (1886).
However, if it is shown that the child was actually aware of the danger, the
actor is entitled to assume that the child will exercise care for his own safety.
Chicago, S.S. & S.B.R.R. v. Sagala, 140 Ind. App. 650, 221 N.E.2d 371 (1966).

^''E.g., New York, C. & St. L. Ry. v. Ault, 56 Ind. App. 293, 102 N.E.
998 (1913) (railroad company moved train without taking reasonable pre-
cautions for the safety of trespasser pinned under engine).

'''^E.g., Lake Erie & W.R.R. v. Brafford, 15 Ind. App. 655, 43 N.E. 882
(1896) (engineer made no effort to stop until train was within forty feet
of deaf mute who could not hear warning).

^'New York Cent. R.R. v. Green, 105 Ind. App. 488, 15 N.E.2d 748 (1938).

^^The elements of the last clear chance doctrine are: (1) plaintiff must
be in a position of peril, (2) defendant must have actual knowledge of plain-



1012 INDIANA LAW REVIEW [Vol. 7:1001

63
in situations in which the possessor is engaged in an activity
and has the last opportunity to avoid injury, it can not be used

to depart from the wilful-wanton rule when a trespasser is injured
due to a static condition of the premises. For a number of reasons,
courts find the wilful-wanton rule more palatable when a trespasser
is injured by a static condition of the land, and have been reluctant
to depart from its strict application. Here, as in many other areas,
courts traditionally have been more willing to control conduct
rather than compel it.*"^ Moreover, trespassers should generally

realize that the land has not been made safe for their unwelcome
intrusions,*^ and in requiring the trespasser to look out for him-
self, Indiana courts have placed significant emphasis on the likeli-

hood that trespassers will observe and avoid dangerous conditions
on the premises.*'^ For these reasons, and perhaps because courts
fear the imposition of unreasonable burdens upon the possessor,*^

tiff's peril, (3) defendant must have opportunity later than plaintiff to avoid
injury, and (4) plaintiff must make all possible effort to extricate himself
from his position of peril. Bayne v. Turner, 142 Ind. App. 580, 236 N.E.2d
503 (1968). The peril of plaintiff may be one of two types: by his own
negligence or by his inadvertence to the surroundings, he has placed himself
in a position of danger from which he is physically unable to extricate him-
self. Harper, Development in the Law of Torts in Indiana 19^0-194^5, 21 Ind.
L.J. 447, 460 (1946). Liability is imposed, notwithstanding plaintiff's con-

tributory negligence, if the defendant could have avoided harming him in the
exercise of reasonable care. L.S. Ayres & Co. v. Hicks, 220 Ind. 86, 40 N.E.2d
334 (1942).

*^Even if a case were to arise in which the possessor had the "last clear
chance" to prevent a trespasser from being injured by a condition of the
premises, such as by shouting a timely warning, recovery would be denied

since Indiana law imposes no affirmative duty to aid one in peril. See L.S.

Ayres & Co. v. Hicks, 220 Ind. 86, 40 N.E.2d 334 (1942). In Hicks, the court
stated that the duty to avoid aggravation of another's injury is similar to

that imposed by the last clear chance doctrine, but the latter is a "negative"

rather than an "affirmative" obligation and does not depend upon the rela-

tionship of the parties. Id. at 95-96, 40 N.E.2d at 338.

^"^See Bohlen, The Moral Duty to Aid Others as a Basis of Tort Liability,

56 U. Pa. L. Rev. 316, 324-25 (1908).

*^James, supra note 27, at 158.

^^Note how the court in Plotzki v. Standard Oil Co., 228 Ind. 518, 92
N.E.2d 632 (1950), emphasized the likelihood that trespassing children would

observe dangerous conditions.

*an Neal v. Home Builders, Inc., 232 Ind. 160, 111 N.E.2d 280 (1953),
the court showed open hostility to an enlargement of the possessor's scope of

liability on the basis of unreasonableness:

Restrictions upon the use of property diminishes [sic] pro tanto the

beneficial character of the use, and hence the law imposes restric-



1974] PREMISES LIABILITY 1013

a trespasser injured by a natural condition of the land stands

little chance of recovery in Indiana/® This fear, however, is un-

founded, since the standard of reasonable care only requires rea-

sonable precautions in light of foreseeable risks of harm. It would

seem that in most instances, the burden of altering land in its

natural state would be sufficiently heavy to preclude recovery

under negligence theory, particularly when the likelihood of tres-
pass was not great.

However, when an artificial condition of the land presents a
high danger of very great harm to intruders, Indiana courts have
again retreated from the strict application of the wilful-wanton

rule. If the possessor knew of a dangerous condition upon his
premises, and he reasonably could have anticipated that intruders

would be likely to come in contact with it, and that such contact
would be reasonably sure to inflict serious injury, a duty of due

care will be imposed upon him.*' Accordingly, he is required to
guard the dangerous condition, give timely warning of it, and take
whatever additional steps are reasonably necessary to protect

persons likely to be injured by it.^° The "dangerous condition*'
rule has been sparingly applied in Indiana. Since an intruder gen-

erally would be contributorily negligent in encountering an
obviously dangerous condition, it has been suggested that the

danger must be concealed or unexpected.^' At least when children
are involved, "concealed" has been interpreted to mean not likely
to be appreciated. Thus, a fire^^ and a large dog^^ have been held
to be conditions potentially dangerous to children within the mean-

tions as seldom as possible and never except upon the strongest
grounds. The law which is reluctant to impose restraint upon an
owner's use of his land even when causing damage beyond his
boundary, is more unwilling to impose restraint upon a user which
is dangerous only to those who intrude upon his land.

Id. at 185, 111 N.E.2d at 292, quoting from Holstine v. Director Gen. of R.R.,
77 Ind. App. 582, 593, 134 N.E. 303, 307 (1922). See Hughes, Duties to Tres-
passers, 68 Yale L.J. 633, 646 (1959).

^^See Harness v. Churchmembers Life Ins. Co., 241 Ind. 672, 175 N.E.2d
132 (1961).

^'Harris v. Indiana Gen. Serv. Co., 206 Ind. 351, 189 N.E. 410 (1934).

7°/c?. at 359, 189 N.E. at 413.

^'iSee James, supra note 27 at 156.

^^Wozniczka v. McKean, 144 Ind. App. 471, 247 N.E.2d 215 (1969).

^^Keane v. Schroeder, 148 Ind. App. 131, 264 N.E.2d 95 (1970).



1014 INDIANA LAW REVIEW [Vol. 7:1001

ing of the rule, whereas a semiconstructed dwelHng house^"^ and a

step ladder^^ have been held not to be. Dicta in some cases^^ suggest

that the condition must be "inherently dangerous," although the

original formulation of the rule did not contain such a limitation.

Even vi^ith such a limitation, the dangerous condition rule is
capable of typical common law growth. ^^

The significance in the application of the dangerous condition
rule is that it allows the plaintiff to surmount the duty hurdle

and recover from the possessor when the possessor has acted un-
reasonably. Recovery is not denied simply because the entrant

bore the status of a trespasser. Under the negligence formula the
interests of the landowner are adequately protected and the in-

terest in human life receives its due consideration. The flexibility
inherent in the dangerous condition rule was well demonstrated in
Echevarria v. United States Steel CorpJ^ In Echevarria, an eight

year-old boy chased a pigeon to a location deep within defendant's

property until the bird flew atop an electrical transformer. In an

attempt to capture the bird, he climbed to the roof of an adjacent

building and descended to the transformer platform. Upon coming
in contact with the transformer, he was shocked and fell to the
ground. In affirming the trial court's judgment for the plaintiff
on the basis of the dangerous condition rule, the Seventh Circuit
Court of Appeals emphasized the fact that the defendant had left
a ladder on the premises which made the top of the building easily
accessible,^' a factor which would have been precluded from con-
sideration under the traditional classification system. Although
the defendant's maintenance of the transformer had high social
utility, the burden of removing the ladder and thus eliminating
the danger to foreseeably trespassing children®^ was slight com-
pared to the gravity of potential harm to human life.

^^Neal V. Home Builders, Inc., 232 Ind. 160, 111 N.E.2d 280 (1953).

''Id.

'^Id. See also Wozniczka v. McKean, 144 Ind. App. 471, 247 N.E.2d 215
(1969).

^^n MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916),
Judge Cardozo extended the "inherently dangerous articles" exception of the
privity requirement to ansrthing which would be dangerous if negligently
made. The effect was to "swallow up" the general rule. See Prosser § 96,
at 642-43.

7«392 F.2d 885 (7th Cir. 1968) (applying Indiana Law).

79/d. at 893.

®°The premises were located near a park. Id. at 887.



1974] PREMISES LIABILITY 1015

The wilful-wanton rule is the remnant of a legal system which

traced many of its standards to a heritage of feudalism. In modern
society, the sanctity once attributed to land ownership no longer

outweighs the interest in human safety. The application of the rule
involves a cumbersome status determination that frequently makes

it more difficult to decide into what category an intruder fits

than it is to decide the case.®' This determination pays little at-

tention to the decisive issues in a negligence case—the foresee-
ability of presence, the risk of substantial injury, and the reason-

ableness of imposing a burden to take precautions. If a duty were

recognized in all men to behave reasonably, these issues would
be questions of fact for the jury. If tighter control of the jury

were deemed necessary to protect the possessor's interest, the

unforeseeability of a trespasser's presence could be made a re-
buttable presumption within the framework of negligence theory.®^

It is not suggested that courts should ignore the status of the

entrant as a trespasser. However, the character of the trespasser's

entry should be no more than a relevant circumstance to be con-
sidered in determining whether the possessor had exercised reason-

able care in light of all relevant circumstances.

C. Trespassing Children

The "attractive nuisance" doctrine has long been accepted in
Indiana,®^ although the more precise version of the doctrine as
formulated in the Restatement of Torts^'^ has been rejected.®^ In

®'The line between the various classifications is often very difficult to
draw. See Hollowell v. Greenfield, 142 Ind. App. 344, 216 N.E.2d 537 (1966).

®^ Professor James has suggested that this approach be taken. James,
supra note 27, at 150.

®^Binford v. Johnson, 82 Ind. 426 (1882). Earlier courts suggested that

they might be receptive to a doctrine of this nature. See Young v. Harvey,
16 Ind. 314 (1861); Durham v. Musselman, 2 Blackf. 96 (Ind. 1827). The
attractive nuisance doctrine was first set forth in Sioux City & P.R.R. v.
Stout, 17 Wall. 657 (1873). Space does not allow proper consideration of the
Indiana cases decided prior to 1962. For a discussion of these cases and the
history of the attractive nuisance doctrine in Indiana, see Note, The Attrac-
tive Nuisance Doctrine, 32 Ind. L.J. 75 (1956) ; Note, Landowner's Liability

for Infant Drowning in Artificial Pond, 26 Ind. L.J. 266 (1951) ; 8 Ind. L.J.
508 (1933).

^'^Restatement (Second) of Torts §339 (1965).

»^Harness v. Churchmembers Life Ins. Co., 241 Ind. 672, 175 N.E.2d 132
(1961). Despite the urging of plaintiff's counsel, the court refused to adopt

the doctrine as set forth in Restatement of Torts §339 (1934). Justice
Arterburn dissented.



1016 INDIANA LAW REVIEW [Vol. 7:1001

Pier V, Schultz,^^ the Indiana Supreme Court set forth the elements

necessary to a cause of action based upon the attractive nuisance

doctrine. Although the Pier court's statement of the doctrine is cum-

bersome and confusing, it is the most recent Indiana authority on

the doctrine and must be considered in its entirety. First, the struc-

ture or condition complained of must be particularly attractive to

children and provide a special enticement for them to sport or
play theron.®^ The Pier court's insistence that the element of allure-

ment be present has arguably aligned Indiana with the small minor-
ity of jurisdictions which resort to a legal fiction to justify the the-

oretical basis of the doctrine. The allurement requirement origin-

ated with common law judges who agreed with the result achieved
by the doctrine but found its theoretical basis unacceptable. In seek-

ing a doctrinal rationale more palatable to their adherence to the
common law classification system, they created a fiction. By imply-
ing an invitation from the alluring situation created by the posses-
sor, the child trespasser was elevated to the status of invitee.®® Thus,
the duty hurdle was surmounted and negligence theory became
relevant. The logical extension of this reasoning led to the rule
in some jurisdictions that the trespassing child must have been
injured by the condition which actually induced the trespass; if

he discovered the condition after he became a trespasser, an in-
vitation could not be implied.®' The fallacy of this fictional basis

«*243 Ind. 200, 182 N.E.2d 255 (1962). For clarity of presentation, the
elements of the doctrine will be discussed in a different sequence than set
forth in the opinion. The actual holding of the Pier court was:

The courts of this state have consistently held that in order for the
doctrine of attractive nuisance to apply, the following facts must be
made to appear: (1) The structure or condition complained of must
be maintained or permitted upon the property by the owner or the
occupant thereof. (2) It must be peculiarly dangerous to children
and of such nature that they will not comprehend the danger. (3) It
must be particularly attractive to children and provide a special en-
ticement for children to play or sport thereon. (4) The owner must
know, or the facts alleged must be such as to charge him with con-
structive knowledge, of the existence of such structure or condition,

and that children do or are likely to trespass upon his property and
be injured by such structure or condition. (5) The injury sustained
must be the natural, probable and foreseeable result of the original .
wrong complained of.

Id. at 205, 182 N.E.2d at 258.

^Ud. at 205, 182 N.E.2d at 258.

^^See Green, Landowners* Responsibility to Children^ 27 Texas L. Rev. 1,
4-5 (1948).

"'United Zinc & Chem. Co. v. Britt, 258 U.S. 268 (1922). BHtt was ap-
parently overruled by implication in Best v. District of Columbia, 291 U.S.



1974] PREMISES LIABILITY 1017

of duty is obvious, and accordingly is presently rejected in the

great majority of jurisdictions.^" Prior to PieVy support for it

could be found mostly by dicta in cases in which recovery was
seemingly denied on other grounds.'^ Indeed, had the Pier court

accepted the doctrine in its original simplicity it could have found

the element of allurement to be unnecessary." Other Indiana

courts which first recognized the doctrine experienced little diffi-

culty in basing the resultant duty on the value of child life to the

411 (1934). Later courts have held that Britt is no longer in effect. East-
burn V. Levin, 113 F.2d 176 (D.C. Cir. 1940) ; McGettigan v. National Bank,
320 F.2d 703 (D.C. Cir. 1963). See Prosser §59, at 365-66; Green, supra

note 88, at 8-12.

9'In Indianapolis Water Co. v. Harold, 170 Ind. 170, 83 N.E. 993 (1908),
a nine year-old boy drowned while attempting to cross a log footbridge over
defendant's canal. In reversing a judgment for plaintiff because the evidence
was insufficient to sustain the verdict, the court noted that the boy was not
lured to the canal by the log. However, the true basis for the holding seems
to have been that the boy heedlessly encountered an appreciated risk. See id.
at 177, 83 N.E. at 995. In Indianapolis Motor Speedway Co. v. Shoup, 88
Ind. App. 572, 165 N.E. 246 (1929), the court recognized the allurement re-
quirement in dictum, but held that the attractive nuisance doctrine had no
application to the facts and circumstances of the case. Id. at 578, 165 N.E.
at 248. In Holstine v. Director Gen. of R.R., 77 Ind. App. 582, 134 N.E. 303

(1922), a child was hit by a train while playing upon a pile of sawdust situated
near the tracks. The court held the attractive nuisance doctrine inapplicable
because the child was not injured by the sawdust. Id. at 591, 134 N.E. at 306.
However, the true basis for nonliability seems to have been that the railroad
had exercised reasonable care. The court held that a presumption exists that
a child is under the supervision of an adult, and absent an allegation that the
child was unattended and that the railroad was aware of this fact, a demurrer

to a complaint based upon negligence would be properly sustained. Id. at 605-

06, 134 N.E. at 311. It is significant that the Holstine court found the status

of the child to be irrelevant since the action was brought by its parents. Id.
at 598, 134 N.E. at 309.

Two early "turntable" cases, however, relied strongly upon the allure-
ment fiction, and could be said to support such a requirement. See Lewis v.
Cleveland, C.C. & St. L. Ry., 42 Ind. App. 337, 84 N.E. 23 (1908) ; Chicago &
E.R.R. V. Fox, 38 Ind. App. 268, 70 N.E. 81 (1904), However, in Drew v.
Lett, 95 Ind. App. 89, 182 N.E. 547 (1932), the court held that a child killed

by poisonous gas while playing in a mine could recover on the basis of the

attractive nuisance doctrine. This holding is contrary to United Zinc & Chem.
Co. V. Britt, 285 U.S. 268 (1922), the leading authority for the old rule that

the child must be injured by the condition which induced the trespass.

'^jSee Green, Landowners'' Responsibility to Children^ 27 Texas L. Rev.
1, 4-5 (1948).



1018 INDIANA LAW REVIEW [Vol. 7:1001

community and the probability of harm to that interest.'^ It is
readily understandable how common law judges, not yet fully ap-
preciative of the implications of negligence theory, resorted to a

fiction to justify the imposition of a duty of reasonable care.

Today, however, the concept of negligence is basic in our legal

system and the acceptance of such a fiction is without justification.

The element of allurement is significant only to the extent that
it bears upon the factual issue of whether the possessor reasonably

could have anticipated the presence of children upon his premises.'''^

This is more appropriately a negligence consideration and should
not bear on the issue of whether a duty of care exists. It is sub-

mitted that Pier should be interpreted in this light.

Secondly, the structure or condition alleged to be an attrac-

tive nuisance must be maintained or permitted upon the property
by the possessor.'^ The application of the doctrine is limited to
artificial conditions. It does not apply to natural conditions'^* or

conditions which merely duplicate those commonly found in nature.^^

The reason generally advanced by Indiana courts for imposing
this limitation upon the doctrine is that if parents fail to super-
vise or warn their children of natural dangers, they should not
expect a stranger to do so.''® This rationale ignores the possibility

that a trespassing child may have disobeyed his parents instruc-
tions or escaped their vigilance. ''^ To hold the parents contributorily
negligent as a matter of law runs contrary to the policy consider-
ations which give rise to the doctrine. It seems that if the child

'^^See, e.g., Cincinnati & Hammond Spring Co. v. Brown, 32 Ind. App. 68,
69 N.E. 197 (1903).

'^^See James, supra note 27, at 164.

'^243 Ind. at 205, 182 N.E.2d at 258.

'^Harness v. Churchmembers Life Ins. Co., 241 Ind. 672, 175 N.E.2d
132 (1961).

'^Plotzki V. Standard Oil Co., 228 Ind. 518, 92 N.E.2d 632 (1950) (water).
See also Evansville v. Blue, 212 Ind. 130, 8 N.E.2d 224 (1937) (water);
Lockridge v. Standard Oil Co., 124 Ind. App, 257, 114 N.E.2d 807 (1953)

;

Anderson v. Reith-Riley Constr. Co., 112 Ind. App. 170, 44 N.E.2d 184 (1942)
(soil).

'^^See, e.g., Lockridge v. Standard Oil Co., 124 Ind. App. 257, 114 N.E.2d
807 (1953).

''In Indiana Harbor Belt R.R. v. Jones, 220 Ind. 139, 41 N.E.2d 361
(1942), the court refused to hold the mother of an eight year-old boy con-
tributorily negligent as a matter of law because the child played in a rail-
road yard. The court noted that children may escape the due diligence of
their parents. This seems to be a realistic approach.



1974] PREMISES LIABILITY 1019

is to be protected at all, he should be protected by the person who
can do so with the least inconvenience. If the law does not expect

a child to appreciate the dangers of playing in a freight yard'°°

or playing with fire/°' it can hardly expect him to appreciate the

danger of water. Even if the doctrine were extended to apply to

natural conditions under the general negligence formula, the inter-

est of the landowner would be adequately protected. The burden

of improving land in its natural state would be sufficiently heavy

in many instances to preclude the imposition of more than a cur-
sory duty of care.'°^ Only when the possessor could have readily
and inexpensively eliminated the danger would recovery be per-

mitted.
^°^

The third element that the Pier court held to be necessary to a
cause of action based upon the attractive nuisance doctrine is that

the structure or condition must be peculiarly dangerous to chil-

dren and of such a nature that they will not comprehend the

danger. '°^ By first insisting that the structure or condition be
peculiarly dangerous, the court seems to have recognized that a

child with meddling propensities can injure himself upon virtually
any object. Accordingly, the emphasis is placed upon objects

which create an unreasonable risk of harm. By further requiring
that the structure or condition be of a such a nature that a child

will not comprehend its danger, the court has adopted the basic
negligence concept that one owes a duty to himself to avoid appre-

ciated dangers. ^°^ One of the basic reasons for distinguishing be-
tween the duties owed to an adult and a child trespasser is a

'°^Wozniczka v. McKean, 144 Ind. App. 471, 247 N.E.2d 215 (1969).

^^^See James, supra note 27, at 151.

^°^Justice Arterburn supported this view in his dissenting opinion in
Harness v. Churchmembers Life Ins. Co., 241 Ind. 672, 175 N.E.2d 132 (1961)

:

The doctrine does not make a landowner an insurer of trespassing
children .... With that thought in mind, the law looks at the
measure of care required and the relatively inexpensive measures
which may be used to avoid the risk of danger to children.

Id. at 681, 175 N.E.2d at 136.

'°^248 Ind. at 205, 182 N.E.2d at 258.

'°^See Indianapolis Water Co. v. Harold, 170 Ind. 170, 83 N.E. 993 (1908),
in which recovery was denied because an infant trespasser actually recognized
the danger of drowning. See also Note, Landowner's Liability for Infant
Drowning in Artificial Pond, 26 Ind. L.J. 266, 271 (1951). In assessing
whether the child reasonably could have been expected to appreciate the risk,



1020 INDIANA LAW REVIEW [Vol. 7:1001

recognition of the child's inability to protect himself. '°* There-

fore, the attractive nuisance doctrine does not apply to situations

in which the condition involves dangers that are or should be

obvious to children. The child's failure to make the responsible
choice to avoid appreciated dangers bears little relation to v^hether

a duty of care in the first instance ever existed. A duty is more
logically imposed by an objective assessment of the possessor's
conduct. Thus, the real inquiry should be v^hether the possessor

reasonably -could have expected a trespassing child to comprehend

the dangers attendant to the structure or condition. '°^ Rather than

making this a factual determination on a case-by-case basis, In-
diana courts have established arbitrary categories of structures

or conditions which as a matter of law the possessor may expect
children to appreciate. Thus, a possessor may always assume
that children will avoid conditions which involve the risks of
drowning, ^°® falling from a height, '°' and being injured by a soil
cave-in.^ ^° If a trespassing child is injured by such a condition,

recovery will be denied for want of duty unless a "latent" danger
which a child is not likely to avoid can be shown to exist.^''

The consequences of requiring such an arbitrary barrier of
duty to be crossed before negligence principles become relevant
are well illustrated in Plotzki v. Standard Oil Co.^^^ In Plotzki,

an eleven j^ear-old boy drowned by stepping into an abrupt drop-
off while wading in a water-filled excavation owned by the de-
fendant. Recovery was denied for want of duty since children
are held as a matter of law to appreciate the dangers of water. In

the age of the child is very important. Indiana apparently has not set a fixed
age limit on the application of the doctrine. See Lockridge v. Standard Oil
Co., 124 Ind. App. 257, 267, 114 N.E.2d 807, 812 (1953).

'"""See Prosser § 59, at 373.

'°Ud. § 59, at 371.

^o«Plotzki V. Standard Oil Co., 228 Ind. 518, 92 N.E.2d 632 (1950); Lock-
ridge V. Standard Oil Co., 124 Ind. App. 257, 114 N.E.2d 807 (1953).

'°'Neal V. Home Builders, Inc., 232 Ind. 160, 190, 111 N.E.2d 280, 294
(1953).

"°Anderson v. Reith-Riley Constr. Co., 112 Ind. App. 170, 44 N.E.2d
184 (1942).

'"Lockridge v. Standard Oil Co., 124 Ind. App. 257, 114 N.E.2d 807
(1953) (raft on pond held not to constitute a latent danger).

"2228 Ind. 518, 92 N.E.2d 632 (1950). For a criticism of Plotzki, see
Note, Landowner's Liability for Infant Drowning in Artificial Pond, 26 Ind.
L.J. 266 (1951).



1974] PREMISES LIABILITY 1021

SO holding, the Plotzki court ignored the allegations that the drop-

off v/as concealed by the murkiness of the water, that the excava-

tion was in plain view from a sidewalk only fifty yards away, and

that it was located in an urban area frequented by large numbers

of children. The burden of fencing the small area and the utility

of maintaining the condition were never considred. One year later
an eight year-old boy drowned in the same unguarded excavation,

and recovery was again denied.' ^^

The final element that the plaintiff must establish in order
to recover on the basis of the attractive nuisance doctrine bears

heavily upon the possessor's knowledge of the circumstances. To
be liable, the possessor must have actual or constructive knowledge
that: (1) children do or are likely to trespass upon his premises,

(2) an attractive nuisance exists thereon, and (3) it is likely to

injure them.''"^ In addition, the child's injury must be the natural
and probable consequence of the possessor's conduct.''^ This is

simply the issue of negligence. If the possessor does not know or
have reason to know that the above circumstances exist he is not
required to take precautions. The standard of due care does not
generally burden him in the first instance to police his premises to
discover if these circumstances exist.' ^* But once he is placed on no-
tice, he must take reasonable precautions to protect trespassing chil-
dren from unreasonable risks of harm. The utility of maintaining
such a condition and the burden of eliminating its attendant risks
are balanced against the probability of harm in determining
whether the possessor acted reasonably under the circumstances."^
Unlike the question of duty, this determination generally is made
by the jury.

The attractive nuisance doctrine as it is presently applied in
Indiana is needlessly complex and restrictive. Before a duty of due

^'^Lockridge v. Standard Oil Co., 124 Ind. App. 257, 114 N.E.2d 807
(1953).

'^^243 Ind. at 205, 182 N.E.2d at 258.

''*Prosser §59, at 369.

''''See, e.g., Indianapolis Water Co. v. Harold, 170 Ind. 170, 83 N.E. 993
(1908) (log on canal served beneficial purpose for defendant). See also Re-
statement (Second) of Torts § 339(d) (1965). When the risk of danger
is great, the probability of presence need not be high. Cf. Harris v. Indiana
Gen. Serv. Co., 206 Ind. 351, 189 N.E. 410 (1933). On the other hand, a
slight risk of harm when the probability of presence is high will be sufficient.
Cf. Cincinnati & Hammond Spring Co. v. Brown, 32 Ind. App. 58, 69 N.E.
197 (1903).



1022 INDIANA LAW REVIEW [Vol. 7:1001

care can be applied, the plaintiff must satisfy three arbitrary-
hurdles that limit the just application of the doctrine. The factors
which are first considered as determinants of duty are reconsidered

under the issue of whether a duty has been violated. Perhaps in

recognition of these shortcomings, Indiana courts have been un-

willing to adhere to the doctrine when its application would yield
an unjust result. For example, in Indiana Harbor Belt Railroad
V. Jones,^^^ the Indiana Supreme Court held the possessor to a duty
of due care simply on the basis of the foreseeability of the presence

of a child at a place where he was exposed to an unreasonable risk
of harm. In Jones, an eight year-old boy who was playing in a
freight car on defendant's switch track was killed when the freight
car door fell upon him. The attractive nuisance doctrine was in-
applicable to the facts of the case, so the court set forth another

basis of recovery. In sustaining the complaint against a demurrer,

the Jones court held that the "probable presence of children upon
property where a dangerous activity is being carried on imposes

a duty of ordinary care upon the owner to anticipate their presence
by keeping a lookout for them."^'' The court rejected the distinc-
tion between "active'' and "passive" negligence and applied the

same principle to conditions of the land by stating:

[I]f the probable presence of children raises a duty to

them of ordinary care, this may be violated before the chil-
dren arrive by leaving things undone which ought to have
been done in anticipation of their coming.

• • •

Whatever duty exists is not absolute but relative. . . .
It is just another way of stating that the standard of care
is that which would be exercised by an ordinary prudent
person under the same or similar circumstances. ^^°

The simplicity and forthrightness of Jones marked a re-
freshing departure from the cumbersome duty requirements of
the attractive nuisance doctrine. Although Jones was once ex-
pected to eliminate much confusion in Indiana law,^^^ it has been
virtually ignored hy the courts. Its most recent application of any
consequence in the area of premises liability is found in Neal v.

"«220 Ind. 139, 41 N.E.2d 361 (1942). See also Cleveland, C.C. & St. L.
Ry. V. Means, 59 Ind. App. 383, 104 N.E. 785 (1914).

'^^220 Ind. at 145, 41 N.E.2d at 363.

^20/cZ. at 145-46, 41 N.E.2d at 364.

^^^See Harper, Development in the Law of Torts in Indiana 1940-194,5,
21 Ind. L.J. 447, 469 (1946).



1974] PREMISES LIABILITY 1023

Home Builders, Inc.'^^ In a somewhat confused opinion, the Neal
court apparently limited Jones to negligent acts other than a failure

to keep trespassing children off the premises. This is inconsistent

with the flexible approach taken by the Jones court. If Jones

were correctly applied, there would be little need to adhere to

the fiction of the attractive nuisance doctrine.

The harsh operation of the attractive nuisance doctrine has
also been avoided by resort to the dangerous condition exception to

the wilful-wanton rule. In Wozniczka v. McKean,^^^ a five year-old

child was injured upon coming in contact with a burning trash
container located in the back of defendant's yard. It was not
alleged that the child's presence was induced by attraction to the
fire, and the child testified that his mother had warned him of
the dangers of fire. The trial court granted defendant's motion
for summary judgment on the ground that the case did not fall
within the attractive nuisance doctrine. Conceding that the child

was at best a licensee and possibly a trespasser, the court of ap-
peals reversed and held that a duty of care arises when children
and persons non sui juris are likely to come in contact with a
dangerous force. Although this rule has been inappropriately

termed an extension of the attractive nuisance doctrine, ^^"^ it is
clearly distinct in practical application.

III. Licensees

A. Licensees and the Wilful-Wanton Rule

A licensee by permission, or a bare licensee, is a person who is
present upon the premises of another for his own convenience,
curiosity, or entertainment.'" He is distinguished from a tres-
passer only by virtue of the possessor's express or implied con-
sent'^* or by a privilege conferred by law.'^^ A licensee may be

^"232 Ind. 160, 111 N.E.2d 280 (1953).

'2^144 Ind. App. 471, 247 N.E.2d 215 (1969).

'24Neal V. Home Builders, Inc., 232 Ind. 160, 172, 111 N.E.2d 280, 287
(1953). In Terre Haute E. & I. Traction Co. v. Stark, 74 Ind. App. 669,
127 N.E. 460 (1920), the court specifically held that the dangerous condition
rule is not what is termed an "attractive nuisance." Id. at 671, 127 N.E. at
461. See also Harris v. Indiana Gen. Serv. Co., 206 Ind. 351, 189 N.E. 410
(1934) ("we doubt if this complaint could be sustained upon what is known
as an attractive nuisance") ; Cleveland, C.C. & St. L. Ry. v. Means, 59 Ind.
App. 383, 104 N.E. 785 (1914).

'""^E.g., Brown v. Kujawa, 142 Ind. App. 310, 234 N.E.2d 509 (1968).

'^^Faris v. Hoberg, 134 Ind. 269, 33 N.E. 1028 (1893).

'27Woodruff V. Bowen, 136 Ind. 431, 34 N.E. 1113 (1893) (fireman).



1024 INDIANA LAW REVIEW [Vol. 7:1001

an invitee who has either exceeded the scope of invitation^ ^® or
has entered the possessor's premises for a purpose to which public

invitation did not extend/^' Although the social guest is generally

the recipient of an invitation in fact, he is classified as a licensee

in Indiana law.'^°

The law in Indiana is unclear as to what constitutes the duty-
owed by a possessor of land to a licensee. Many of the cases are
couched in language equally apt to designate trespassers and li-

censees.'^^ Thus, it is frequently held that the possessor owes the

same duty to licensees that he owes to trespassers—he need only
refrain from wilful or wanton conduct to escape liability.' ^^ As
in cases involving trespassers, the wilful-wanton rule has been

diluted to approximate a standard of reasonable care under the

circumstances when the possessor is engaged in an activity and
the licensee's presence is known or may reasonably be expected.'"
Additional exceptions to the wilful-wanton rule have evolved to

mitigate its harsh operation when justice so requires. These ex-
ceptions are applicable to licensees as well as trespassers, and have
been considered in the discussion of the duty owed to trespassers.
The emphasis here will be placed upon the differences in Indiana
law between the duty owed to licensees and that owed to tres-
passers.

B. The Duty Owed To Liceiisees

In Fort Wayne National Bank v. Doctor,^ ^^ the court of ap-
peals held that the law of negligence is irrelevant to the licensor-
licensee relationship in Indiana. As a practical matter, this as-
sertion of the law ignores the realities of the decision-making
process. For many years the law of negligence has permeated the
licensor-licensee relationship under the guise of the common law
rules. As a doctrinal matter, the Doctor court reaffirmed the
vitality of the common law classification system in the express

'^apRossER § 60, at 376.

'29East Hill Cemetery Co. v. Thompson, 53 Ind. App. 417, 97 N.E. 1036
(1912) (person walking through cemetery).

'^°Fort Wayne Nat'l Bank v. Doctor, 272 N.E.2d 876 (Ind. Ct. App. 1971).

'^'See., e.g., Pittsburgh, C.C. & St. L. Ry. v. Simmons, 38 Ind. App. 427,
76 N.E. 883 (1906).

'^^E.g., Lingenfelter v. Baltimore & O.S.W. Ry., 154 Ind. 49, 55 N.E.
1021 (1900).

^^^See p. 1011 supra.

'3^272 N.E.2d 876 (Ind. Ct. App. 1971).



1974] PREMISES LIABILITY 1025

language of Indiana law. Accordingly, Indiana judges must con-
tinue to manipulate ancient terminology that was designed to
protect feudal notions of land ownership to adequately protect the

interest in human safety. An analysis of Doctor is highly in-
structive in revealing the inadequacies of the common law ap-
proach. The Doctor court examined Indiana law in an effort to
ascertain what constituted the duty owed by a possessor to a
licensee. Unlike most courts, it recognized that "at this point . . .

the law in Indiana becomes snarled."
^^^ The decision in Doctor

exemplifies the conceptual and semantic difficulties inherent in the

common law approach. Confused by precedent, the Doctor court
declined to decide which existing standard was most desirable or
what exactly constituted the duty owed by a possessor to a licensee.
With little elaboration, the court simply held that in this case the
possessor was not liable under any existing standard. ^^* The same
result could have been reached by holding the possessor to a stan-
dard of reasonable care under the circumstances.

In Doctor, plaintiff-administrator brought an action for
wrongful death arising out of the decedent's fatal fall down a
stairway in defendant's home. The trial court granted summary
judgment for the defendant. A primary issue on appeal was
whether defendant had breached a duty that she owed to plaintiff.
Relying on precedent, the Doctor court found that the Indiana

Supreme Court had previously adopted at least four different tests
to determine whether a possessor had breached a duty owed to a
licensee. In Woodruff v. Bowen,^^^ the court held that the possessor
owed a licensee no duty other than to refrain from a positive
wrongful act which may result in injury. Five years later, in
Barman v, Spencer, ^^^ the court held that the possessor's only
duty was to refrain from acts which would constitute gross neglig-
ence. In Lingenfelter v, Baltimore & Ohio Southwestern Rail-
way, '^' an exception was noted to the general rule of nonliability
in that the possessor must not wilfully or wantonly injure a licen-
see. More recently, in Pier v. Schultz,^'^^ the court held that a com-

'''Id. at 880.

'3*/d. at 882.

'^^136 Ind. 431, 34 N.E. 1113 (1893).

'"49 N.E. 9 (Ind. 1898).

' '^'154 Ind. 49, 55 N.E. 1021 (1900).

'^°243 Ind. 200, 182 N.E.2d 255 (1962). This is a paraphrase of the
holding of Pier, The actual holding of the court was as follows:



1026 INDIANA LAW REVIEW [Vol. 7:1001

plaint based on injury to a licensee must contain one of the fol-

lowing allegations to state a cause of action : ( 1 ) that the possessor

committed a positive act, (2) that the possessor exercised control

over an instrumentality, regardless of its character, or (3) that

the condition complained of created a situation comparable to en-

trapment.

The court of appeals, on the other hand, "had begat a new
doctrine," which the Doctor court concluded **had debauched the

principle of wilfulness and wantoness."'^^ In Cleveland, Cincinnati,

Chicago & St. Louis Railway v. Means, ^^"^ a case in which duty of
care was held to arise from an unreasonable risk of foreseeable
harm to children, the court alluded to the phrase "passive neg-
ligence" in a general statement of nonliability. With the impetus
of this dictum, later courts utilized the phrase to support a finding

of nonliability when licensees were injured by mere conditions
of the premises. ^^^ Although liability for "active negligence" was
implicit in these holdings, the active negligence doctrine was not
relied upon by counsel until Olson v. Kushner.^^^ In Olson, plain-

tiff was injured upon falling down a wet and slippery stairway
at defendant's home. Plaintiff alleged, among other things, that
defendant had provided him with a defective umbrella which
would collapse when exposed to air currents. Finding this to be

Since it is not alleged that the instrumentality, of which appellant
complains, was of such a character that its presence upon the prop-
erty of appellees created a condition comparable to entrapment, and
since it is not alleged that the appellees, as owners of the property,
committed any positive act or exercised any positive control over the
instrumentality, regardless of its character, and since it affirma-
tively appears from the complaint that the person injured was either
a trespasser or a mere licensee by permission upon the property of
appellees, the complaint does not state facts sufficient to constitute

a cause of action under the general rules of negligence.

Id. at 204, 182 N.E.2d at 257 (emphasis added). Although the Pier court
seemingly held that a positive negligent act was sufficient to constitute a
cause of action, the Doctor court interpreted this holding to require a posi-
tive wilful act before recovery would be permitted. 272 N.E.2d at 882.

'^^272 N.E.2d at 881.

'^=59 Ind. App. 383, 104 N.E. 785 (1914).

'^^Olson V. Kushner, 138 Ind. App. 73, 211 N.E.2d 620 (1965) ; Millspaugh
V. Northern Ind. Pub. Serv. Co., 104 Ind. App. 540, 12 N.E.2d 396 (1938);
Thistlethwaite v. Heck, 75 Ind. App. 359, 128 N.E. 611 (1920); East Hill
Cemetery Co. v. Thompson, 53 Ind. App. 417, 97 N.E. 1036 (1912). The
Doctor court overruled these cases insofar as they applied a standard of

active-passive negligence. 272 N.E.2d at 882.

144138 Ind. App. 73, 211 N.E.2d 620 (1965).



1974] PREMISES LIABILITY 1027

the only allegation of active negligence, the Olson court sustained

defendant's demurrer to the complaint since it did not allege that

defendant knew, or in the exercise of reasonable care should have

known, that the umbrella would collapse.

This apparent recognition of the active negligence doctrine

by the Olson court aligned Indiana with the prevailing view that

"as to any active operations which the occupier carries on, there

is an obligation to exercise reasonable care for the licensee."'
'^^

The growth of the active negligence doctrine as a mechanism of
providing relief from the harsh operation of the common law rules
parallels the growth of negligence law generally. At common law,
there was a fundamental distinction between misfeasance and non-
feasance.'^* Essential to liability for nonfeasance was a relation-
ship between the parties giving rise to a duty to act.'^^ Since the

licensee is on the premises for his own convenience, the licensor-
licensee relationship is insufficient to support an affirmative

duty of care. Absent an obligation to act, the possessor's failure

to act cannot be regarded as negligence. Liability for misfeasance,

on the other hand, v/as imposed when one engaged in active conduct
injured another.'^® The positive act itself gave rise to a duty of
care. Accordingly, courts, disenchanted with the limited duty

conferred upon the possessor, were far readier to invoke the law
of negligence when an inj ury arose from active conduct as opposed
to a condition of the premises.^

149

Rather than simply accept the active negligence doctrine and
hold it inapplicable to the facts at hand, the Doctor court engaged

in "a process of partial disentanglement" in an effort to elim-
inate confusion from existing law. Barman was easily disposed

"^^Prosser §60, at 379. See also Annot., 49 A.L.R. 778 (1927); Annot.,
156 A.L.R. 1226 (1945).

^^^See Bohlen, Moral Duty to Aid Others as a Basis of Tort Liability,
56 U. Pa. L. Rev. 217 (1908).

There is no distinction more deeply rooted in the common law and
more fundamental than that between mis-feasance and non-feasance,
between active misconduct working positive injury to others and
passive inaction, a failure to take positive steps to benefit others,

or to protect them from harm not created by any wrongful act of
the defendant.

Id. at 219.

''^^Prosser §56, at 339.

^^'^See James, supra note 27, at 174.



1028 INDIANA LAW REVIEW [Vol. 7:1001

of since degrees of negligence are not recognized in Indiana. Means
and other cases^^° recognizing the active negligence doctrine were

overruled insofar as they applied a standard of active-passive

negligence. Such a distinction, the court noted, "is inconsistent

v^ith the holdings of our Supreme Court on the same subject,
violates the prohibition against degrees of negligence, and created
an undefined negligence doctrine where no logical basis exists
for so doing."'^^ The basis of this holding has little support. In
Indiana Harbor Belt Railroad v. Jones,^^^ the supreme court also
found that no sound basis existed for the distinction between

active and passive negligence. However, the Jones court did not

consider the law of negligence irrelevant to the licensor-licensee

relationship. It simply applied a standard of ordinary care under

the circumstances. To hold that the active negligence doctrine is
undefined disregards the fact that the distinction is applied in

numerous jurisdictions^" and is recognized by the commentators.^*'*
The logical basis for applying the doctrine is that it provides relief
from the harsh operation of the common law classification system
in jurisdictions unwilling to directly confront precedent.

In noting that the active-passive distinction could arguably

be said to denote types rather than degrees of negligence, the

Doctor court advanced the soundest reason for abrogating the

active negligence doctrine
—

"this argument is too fine spun to
do an3d:hing more than add to the existing confusion in this area
of the law."^*^ Had the court replaced the doctrine with the stan-
dard of reasonable care under the circumstances, as the Jones court

did, it would have achieved its goal of clarifying Indiana law.
Attempted definitions of active and passive conduct have relied
heavily on discerning the point in time at which the possessor's
activity occurred prior to the injury.^" On this basis, the differ-
ence is simply one of degree which varies infinitely with the cir-

^^°See cases cited note 143 supra.

'51272 N.E.2d at 882.

'"220 Ind. 139, 41 N.E.2d 361 (1942).

'"iSee Annot., 49 A.L.R. 778 (1927); Annot., 156 A.L.R. 1226 (1945).

^^'*See Prosser § 60, at 379; James, Tort Liability of Occupiers of Land:
Duties Owed to Licensees and Invitees, 63 Yale L.J. 605, 610 (1954).

'"272 N.E.2d at 882.

^^^See Smith, Liability of Landowners to Children Entering Without Per-
mission, 11 Harv. L. Rev. 349 (1898)

:

The first case is that of a known, present and immediate danger,
one which is imminent and reasonably certain to result in harm, un-



1974] PREMISES LIABILITY 1029

cumstances. This approach becomes arbitrary when the possessor,
by his affirmative conduct, creates a condition which results in

injury. For example, in Lingenfelter v. Baltimore & Ohio South-
western Railway, ^^^ defendant permitted the public as licensees to

cross its premises. Defendant obstructed the path with a freight

car, and plaintiff, in attempting to go around it, fell into an un-

guarded pit. Recovery was denied because a licensee cannot "re-
cover for injuries caused by obstructions or pitfalls thereon."'^®

On the other hand, in Midwest Oil Co. v. Storey, '^'^ the possessor
dug an excavation upon his premises in an area which licensees
were in the habit of crossing. Plaintiff, unaware that the change
of condition had taken place, fell into the excavation and was
severely injured. In finding for the plaintiff, the court held that

the possessor was under a duty not to do any positive act which
would increase the licensee's hazard. In both Lingenfelter and
Storey, the possessor had failed to warn a licensee of a change
made in the condition of the premises. Under similar circumstances,
different results were reached. The characterization made by
the Storey court was but an indirect way of requiring the possessor
to conduct himself with ordinary care when the presence of licen-
sees was foreseeable and it could reasonably have been anticipated
that the change of condition would not be observed. The same
result has been reached in similar cases by applying the wilful-
wanton rule.'*°

less the owner then and there does, or omits to do, some act, the
doing or omitting of which would avoid the danger. In the second
case the danger may be said to exist chiefly in anticipation. It de-
pends on the course of future events, upon circumstances as yet un-
known and fortuitous. In the first case the duty imposed upon the
landowner involves simply a temporary, generally only a momentary,
interruption of his user .... In the second case the duty sought to
be established is to guard against future dangers. It must frequently
involve permanent changes in the mode of user, sometimes necessi-
tating such expense and trouble as would be practically prohibitive
of certain modes of user, and in some cases compelling the abandon-
ment of all profitable use.

Id. at 364-65. See also James, supra note 27, at 174-75.

^^^154 Ind. 49, 55 N.E. 1021 (1900).

'^^Id. at 52, 55 N.E. at 1022.

'^'134 Ind. App. 137, 178 N.E.2d 468 (1961).

'"'"See Penso v. McCormick, 125 Ind. 116, 25 N.E. 156 (1890) (mound of
hot embers on lot frequented by licensees) ; Graves v. Thomas, 95 Ind. 361
(1883) (excavation for cellar made upon lot adjoining sidewalk) ; Carskaddon
V. Mills, 5 Ind. App. 22, 31 N.E. 559 (1892) (barbed wire fence erected with-



1030 INDIANA LAW REVIEW [Vol. 7:1001

Ostensibly in an effort to avoid the conceptual and semantic

difficulties involved in defining active and passive negligence, the

Doctor court found the lav^ of negligence irrelevant to the licensee-

licensor relationship.^^' With this accomplished, the court capitul-
ated and set forth its ov^n ambiguous rule in holding that the pos-

sessor would only be liable for action "which would constitute either

a positive wrongful act or wilful or wanton misconduct or conduct
which would amount to entrapment.'" ^^ In each of these theories
the court found the element of wilfulness and held that the posses-

sor would only be liable when his conduct transcended negli-
gence.'"

A more logical approach than Doctor would have been to re-
solve the case under the ordinary rules of negligence. The alleged
defect in the condition of the stairway was either obvious or was
within the knowledge of the decedent.

'^"^
Therefore, the possessor

was free to assume that the decedent would take reasonable pre-
cautions for her own safety. Whether it be held that the possessor
exercised reasonable care in relying upon this assumption, or simply
was under no duty to act, the same result is attained. The con-
fusion in this area of Indiana law is not caused by the quantum
of standards recognized by the courts. The nature of these stan-
dards is the heart of the problem. The arbitrary rules of the
common-law classification system have become so embedded in
Indiana law that the judges find it easier to manipulate the older

concepts than to directly confront precedent. Pierce v. Walters,^ ^^

decided one year after Doctor, supports this conclusion.

In Pierce, the plaintiff, one of fifteen grandchildren visiting

defendant's farm, was hiding in tall grass and weeds on a pond
dam when he was run over by a truck driven by defendant. The
record indicated that the defendant was working on a portion
of the premises which was accessible only by crossing the dam,
and that he had heard the child being admonished to stay away

out notice over path used by licensees). In permitting recovery, the courts
emphasized the foreseeability of grave harm.

'*'272 N.E.2d at 883.

'*^/d. This holding seems contrary to the holding in Pier. See note 140
supra.

'^'^The stairway was well lit and the decedent had descended it on numer-
ous occasions. Id. at 878.

165283 N.E.2d 560 (Ind. Ct. App. 1972).



1974] PREMISES LIABILITY 1031

from the dam on the date of the accident. Finding that no material
fact existed from which a jury could find that defendant had
breached a duty owed to plaintiff, the trial court granted defen-
dant's motion for summary judgment. In reversing the judgment,
the court of appeals unequivocally set forth the common law
rule that ''the only duty of the owner of the property upon which
the licensee enters is to refrain from wilfully or intentionally
injuring the licensee," and stated that this ''law is so well estab-

lished in this state that it needs no citation of authority."
'^^

On its face, this statement of the law should have precluded the
consideration of the issue of negligence. Indiana courts have long

held that "wilfullness and negligence are diametrically opposed.'"
^^

However, the Pierce court made it clear that it was holding defen-
dant to a duty of reasonable care under the circumstances. Upon
reviewing the evidence, the court found that questions of fact

existed as to whether defendant had actual or constructive knowl-
edge of the plaintiff's presence. However, the issues of fact would

be immaterial unless a jury could infer that defendant had

breached his duty to refrain from wilful or intentional injury.
Although the facts in evidence seemed to indicate nothing more
than an honest mistake in judgment on the part of the defendant,
the trial court's refusal to submit the case to the jury was held
to be reversible error. The court held that if the jury were to
find that defendant had actual or constructive knowledge of the
plaintiff's presence, then its function would be to determine

whether defendant had been "wilfully or wantonly negligent.'"^®
Thus, questions of fact existed as to whether defendant acted as

a reasonable and prudent person when he drove his truck across
the dam without taking precautions.

The exceptions that have been carved from the wilful-wanton
rule have rendered it more a formality than a legal reality. The
most significant change that would occur by applying a standard

'''''Id. at 562.

'^^Barrett v. Cleveland, C.C. & St. L. Ry., 48 Ind. App. 668, 96 N.E.
490 (1911); Stauffer v. Schlegel, 74 Ind. App. 431, 129 N.E. 44 (1920).
"Negligence and wilfulness are incompatible, and the former cannot be to
such a degree as to become the latter. . . ." Id. at 435, 129 N.E. at 46.

'^^283 N.E.2d at 562. Other courts have justly criticized the self-contra-
dictory use of this phrase. "Negligence and wilfulness are as unmixable as
oil and water. 'Wilful negligence' is as self-contradictory as 'guilty inno-
cence.' " Kelly V. Malott, 135 F. 74, 76 (7th Cir. 1905). Professor Eldredge
stated that to "speak of 'wilful negligence' is like talking of a 'black white'
object." Eldredge, Tort Liability to Trespassers, 12 Temple L.Q. 32, 33
(1937).



1032 INDIANA LAW REVIEW [Vol. 7:1001

of ordinary care to the licensor-licensee relationship would be

honesty of expression. The active negligence doctrine has reap-
peared under Pierce by the misnomer of "wilful and wanton neg-
ligence." Thus, the possessor is required to conduct his activities

with the thought in mind that licensees may be within the zone
of danger. The duty of care may require the possessor to maintain
a lookout for licensees, a precaution not generally required for the

benefit of trespassers.'^' When it is difficult to ascertain whether
the licensee has been injured by an activity of the possessor or
by a condition of the premises,^ ^° recovery may be permitted under
either the wilful-wanton rule or the positive wrongful act rule.

However it is labeled, the true basis for recovery in this instance
is the creation of a foreseeable and unreasonable risk of harm
without taking reasonable precautions.

The rule that the licensee takes the premises as he finds
them has been modified to require the possessor to disclose con-
cealed dangerous conditions that are known to him. Frequently
termed the "concealed trap doctrine," the rule reflects a judicial

consensus that licensees are at least entitled to equal knowledge

of the dangers of the premises.^ ^^ The possessor need not warn of
known or obvious dangers, '^^ and the licensee generally assumes
the risk of dangers concealed only by darkness. '^^ The cases in-
dicate an effort on the part of the courts to find known concealed
dangers in order to invoke the law of negligence. For example,
in Carrano v. Scheldt^^'^^ the plaintiff was injured when she slipped
upon a throw rug on a highly polished floor in defendant's home.
The trial court granted summary judgment in favor of defendant
since plaintiff was a licensee who took all risks as to the condition
of the premises. The Seventh Circuit Court of Appeals reversed,
holding that under Indiana law "a knowing owner may be held
liable for injury to a licensee if the owner does not warn the un-
witting licensee of a hidden peril."' ^^ The backing had worn off
the rug after numerous washings, and defendant was previously

'^^Prosser §60, at 380.

' ^°jSec notes 157, 159 supra & accompanying text.

'^'See Prosser §60, at 381.

''""E.g., Standard Oil Co. v. Meissner, 102 Ind. App. 552, 200 N.E. 445
(1936).

''^See Lingenfalter v. Baltimore & O.S.W. Ry., 154 Ind. 49, 55 N.E. 1021
(1900).

'74388 F.2d 45 (7th Cir. 1967).

'75/(£. at 47.



1974] PREMISES LIABILITY 1033

informed of the dangerous condition. Since the defendant had

accompanied the plaintiff to the room prior to the injury, a warn-

ing would not have been unduly burdensome. The court held that

under these circumstances a jury should be permitted to determine

whether defendant had been negligent in failing to warn of the
dangerous condition.

C. The Social Guest

While persons with whom the possessor maintains a social
relationship are commonly ''invited" to enter his premises, Indiana
law classifies the social guest as a licensee.

'^^ The purpose of the
social guest's visit is to confer social rather than economic benefit

upon the possessor, and this is insufficient to satisfy the present

tests of invitee status.^ ^^ A social guest cannot elevate his status
by performing gratuitous tasks for his host.'^^ The reason ad-
vanced by the courts for denying the social guest the preferred

status of invitee is that he cannot and does not expect to be treated

any differently than a member of the host's family. ^^' Rather
than determining the expectations of the parties as a matter of

law, it would be more reasonable to determine the duty of care
required on a case-by-case basis. Suits by social guests against

their hosts did not arise in Indiana until the past decade. '°° Pro-

fessor James has attributed the similar national trend to the fact
that a host is usually in no better financial position to bear the

loss than the guest.' ^^ However, the recent availability of inex-
pensive liability insurance has emerged as an important reason
for eliminating the immunity of the host.'°^ Moreover, holding
the possessor liable for injuries suffered by social guests on prop-

erty not reasonably safe places the incentive for precaution upon
the party best suited to prevent accidents.

'7*Fort Wayne Nat'l Bank v. Doctor, 272 N.E.2d 876 (Ind. Ct. App.
1971); Brown v. Kujawa, 142 Ind. App. 310, 234 N.E.2d 509 (1968); Olson
V. Kushner, 138 Ind. App. 73, 211 N.E.2d 620 (1965).

^^'^See note 183 infra & accompanying text.

'78Fort Wayne Nat'l Bank v. Doctor, 272 N.E.2d 876, 883 (Ind. Ct.
App. 1971).

'^'*See id, at 880.

^^°The social guest was not classified as a licensee in Indiana until 1965.
See Olson v. Kushner, 138 Ind. App. 73, 75, 211 N.E.2d 620, 621 (1965).

'®^ James, supra note 154, at 611-12.

^'^'^See Comment, Status of the Social Guest: A New Look, 7 Wm. & Mary
L. Rev. 313, 319 (1966).



1034 INDIANA LAW REVIEW [Vol. 7:1001

IV. Invitees

A. The Tests of Invitee Status

In determining whether an entrant is entitled to the status

of invitee most courts apply one or both of tv^o tests: "economic

benefit'' and/or ^'public invitation.'''®^ While the satisfaction of

either test yields the same result—an affirmative duty to make the
premises safe for the invitee's reception—^the rationales relied
upon for imposing this obligation are distinctly different. The
economic benefit test proceeds upon the assumption that the duty

to make the premises safe is assumed by the possessor only in
return for some consideration or benefit. '^'^ This duty of care is
"the price he must pay for the benefit, present or prospective, to
be derived from the visitor's presence."' °^ To satisfy this test,
the possessor must have a real or potential percuniary interest in
the visitor's presence, and the purpose of the visit must be to
confer such a benefit. The public invitation test, on the other hand,
derives the basis of duty from the invitation itself, and the assur-
ance that it carries, rather than from a bargained for exchange.
The rationale behind this test is that when one expressly or im-
pliedly invites the public to enter his land or parts thereof, he

impliedly represents that reasonable care has been exercised to

make it safe for public reception.'®^ The duty is limited to mem-
bers of the public who use the land for the purpose for which it
was opened. '°^ The accrual of economic benefit automatically
qualifies the entrant as an invitee under the public invitation

is^Prosser § 61, at 389; James, supra note 154, at 612-14; Comment, supra
note 11, at 163.

'^'^Bohlen, The Basis of Affirmative Obligations in the Law of Tort, 53
U. Pa. L. Rev. 209, 337 (1905). Professor Bohlen was perhaps the leading
proponent of the economic benefit test. As Reporter for the first Restate-
ment, Bohlen no doubt influenced its exclusive adoption of the economic bene-
fit test. Restatement of Torts §332 (1934).

'^^Prosser §61, at 386.

i66pQj,
^jj exhaustive analysis of the rationale and history of the public

invitation test, see Prosser, Business Visitors and Invitees, 26 Minn. L. Rev.
573 (1942). Prosser traced the origin of both tests to the English case of

Parnaby v. Lancaster Canal Co., 11 Ad. & El. (1839). See also Comment,
supra note 11, at 163.

^^^See, e.g., East Hill Cemetery Co. v. Thompson, 53 Ind. App. 417, 97

N.E. 1036 (1912) (person walking through cemetery for purpose other than

paying respect to the dead classified as licensee) . The purpose for which the
premises were opened is viewed objectively. See James, supra note 154, at
618-19.



1974] PREMISES LIABILITY 1035

test.^^® An invitation requires more than consent, and the cir-
cumstances must be such as would lead a reasonable man to believe
that his presence is welcome—not just tolerated.'®' While an in-
vitation is an essential element of each test, it alone is insufficient

to give rise to a duty of care. The social guest, while clearly in-

vited, is considered a licensee by the great majority of jurisdic-

tions. ''° His invitation is generally a private one, and his relation-

ship with the possessor is one of social rather than pecuniary

interest.

The economic benefit test has been expressly recognized by
Indiana courts, and its scope modified to include common interest
and mutual benefit as factors giving rise to a duty of care.'^'

Many of the recent cases contain language which, arguably, recog-
nizes the economic benefit test as the sole determinant of invitee

status.''^ If a technical invitation can only be found on the basis of

the economic benefit test, the application of the rule poses several

problems. First, exclusive reliance upon economic benefit cannot

be reconciled with precedent. Dean Prosser convincingly demon-
strated that public invitation was the first test of invitee status
recognized by the common-law courts.'" As applied to the develop-

^^^See Comment, supra note 11, at 163.

'^'Prosser, supra note 186, at 586.

^9°£;.5r., Olson V. Kushner, 138 Ind. App. 73, 211 N.E.2d 620 (1965).

'^'E.g., Beaning v. South Bend Elec. Co., 45 Ind. App. 261, 90 N.E. 786
(1910) (utility companies and city had common interest in having employee
of city repair defective wires on utility pole). Common interest generally is
interpreted to mean common pecuniary interest. See, e.g., Verplank v. Com-
mercial Bank, 145 Ind. App. 324, 251 N.E.2d 52 (1969).

'^^Only two recent cases have used language which suggests that public
invitation may be a legitimate determinant of invitee status. See Rust v.
Watson, 141 Ind. App. 59, 217 N.E.2d 859 (1966) (area occupied by public
as invitees) ; New York Cent. R.R. v. Wyatt, 135 Ind. App. 205, 184
N.E.2d 657 (1962) (person crossing railroad tracks while making delivery
to distillery).

^

''^Prosser, supra note 186. Prosser's article appeared at a time during

which the economic benefit test was considered the only test of invitee status
by most commentators. See R. Campbell, Law of NEaLiGENCE, 29-30 (1871);
F. Harper, Law of Torts § 98 (1933) ; J. Salmond, Law of Torts § 162
(11th ed. 1953) ; Bohlen, The Basis of Affirmative Obligations in the Law of
Tort, 53 U. Pa. L. Rev. 239, 337 (1905). The first Restatement also adopted
this approach. Restatement of Torts §332 (1934).

After an exhaustive analysis of the case law, Prosser concluded that the
"Restatement of the Law of Torts is wrong." Prosser, supra note 186, at
612. Prosser later became Reporter for the second Restatement and the pub-



1036 INDIANA LAW REVIEW [Vol. 7:1001

ment of a test in Indiana, Prosser's analysis seems significantly
on point. An examination of early Indiana cases indicates that
economic benefit received little or no mention. For example, in

Howe V. Ohmart,^'^^ a person attending a free college literary
society meeting was deemed an invitee without reference to po-
tential pecuniary gain. Had the Howe court applied the economic
benefit test, it is doubtful that the plaintiff would have recovered.

When economic benefit was considered by the courts, it was pri-
marily in dicta and was referred to simply because its presence
gave rise to the inference of an invitation. ^'^ The prime concern
of most courts was whether a representation of safety could be
inferred from the circumstances surrounding the invitation.''^
Support for this conclusion can readily be found in Lake Erie &
Western Railroad v. Fleming,

^"^^
wherein the Indiana Supreme

Court held:

[I]f mutuality of interest is one of the essential facts

from which to infer an invitation, then it sufficiently ap-
pears .... But this court has expressly denied the doctrine
which prevails in some jurisdictions that mutual ad-
vantage must appear before an invitation can be im-
plied. . .

:''

Despite this clear statement of authority, Indiana courts began to
insist that some form of pecuniary advantage or common interest
be shown before the status of invitee would be conferred.'''

lie invitation test was incorporated as a determinant of invitee status. Re-
statement (Second) of Torts §332 (1965).

'9^ Ind. App. 32, 33 N.E. 466 (1893).

"''See, e.g., Baltimore & O.S.W. Ry. v. Slaughter, 167 Ind. 330, 79 N.E.
186 (1906); Pittsburgh, C.C. & St. L. Ry. v. Simons, 168 Ind. 333, 79 N.E.
911 (1907); Bartholomew v. Grimes, 51 Ind. App. 614, 100 N.E. 12 (1912).
In one case, the plaintiff argued both theories of status determination, but
the court held that he could not recover under either theory since he was in-
jured by a known and appreciated risk. Clark v. City of Huntington, 74 Ind.
App. 437, 127 N.E. 301 (1920).

"^iSee, e.g., Indiana, B. & W. Ry. v. Barnhart, 115 Ind. 399, 16 N.E. 121
(1888) (without mention of economic benefit the court found invitation by
enticement and inducement).

^9^183 Ind. 511, 109 N.E. 753 (1915).

^9«/d. at 519-20, 109 N.E. at 756.

"'Prosser has concluded that the notion the economic benefit test is ex-

clusive originated in the minds of a long forgotten treatise writer, Robert
Campbell. Prosser, supra note 186, at 583. R. Campbell, Law of Negligence
(:2d ed. 1878) was a popular authority for the test in some early Indiana



1974] PREMISES LIABILITY 1037

The exclusive reliance upon the economic benefit test has

caused Indiana courts to attenuate the concept of economic benefit

to unreasonable extremes. A child accompanying a parent to a
store^°° or a person waiting at a railroad depot for a friend^°' can

hardly be said to have conferred a real pecuniary benefit upon the

possessor. Persons crossing railroad tracks at a particular point

have been found to have conferred economic benefit upon the rail-

road because the railroad was saved the expense of providing
public crossings.^°^ Similarly, the guest of a social club presi-

dent^°^ and a mourner at a funeral service^°^ have been held to

qualify as invitees. It seems that in these situations the potential

economic benefit is negligible or nonexistent, and the public in-

vitation test would more appropriately apply. However, the eco-
nomic benefit test more legitimately explains an entrant^s status
when a private invitation has been extended. In this instance, the
affirmative duty of care cannot be based upon a broad representa-

tion to the public that the premises are in safe condition. The
courts must look to the terms of the invitation rather than the
fact of invitation to imply a representation of safety. Thus, the

personal relationship between the entrant and possessor and the
circumstances under which the invitation was extended are of
great significance.^°^ Employees of the possessor^°^ and persons

invited upon the premises to make repairs^°^ easily qualify as
invitees on this basis.

Both theories of status determination readily explain the
entrant's status of invitee when the possessor has held his prem-
ises open to the public with the expectation of deriving pecuniary

cases. See Cleveland, C.C. & St. L. Ry. v. Powers, 173 Ind. 105, 88 N.E. 1073
(1909) ; East Hill Cemetery Co. v. Thompson, 53 Ind. App. 417, 97 N.E.
1036 (1912).

=°°L.S. Ayres & Co. v. Hicks, 220 Ind. 86, 40 N.E.2d 334 (1942).
= °'New York, C. & St. L. Ry. v. Mushrush, 11 Ind. App. 192, 37 N.E.

954 (1894).

2°2Pittsburgh, C.C. & St. L. Ry. v. Simons, 168 Ind. 333, 79 N.E. 911
(1907).

2«3Rush V. Hunziker, 216 Ind. 529, 24 N.E.2d 931 (1940).

2°^Hickey v. Shoemaker, 132 Ind. App. 136, 167 N.E.2d 487 (1960).

^°^Prosser, supra note 186, at 602.

2°^See, e.g., Tyler v. Nolen, 144 Ind. App. 665, 248 N.E.2d 186 (1969)
(maid).

2°7See, e.g., Rink v. Lowry, 38 Ind. App. 132, 77 N.E. 967 (1906) (per-
son invited to repair telephone injured while inside elevator shaft).



1038 INDIANA LAW REVIEW [Vol. 7:1001

gain.^°° This is the most common situation encountered by the
courts, and perhaps explains why Indiana courts seem content to
ignore the public invitation test. However, the status of invitee

has been conferred upon persons whose presence cannot reasonably

be accounted for under either test. For example, in Hollowell v.

Greenfield,'^^'^ an eleven year-old boy was injured at his father's
place of employment while playing with a machine. Recognizing

that the line betv/een the status of invitee and licensee is often

difficult to draw, the court held that the jury could properly have

found the child to be an invitee. In so holding, the court paid

particular attention to the fact that the boy's father had occas-

ionally paid him twenty-five cents for his assistance, and the fact
that the father's employer had observed the boy either playing or

working on at least four previous occasions. Under existing case
law,^'° however, the mere rendering of minor services for the
benefit of the possessor should not have been sufficient to elevate

his status from that of licensee to invitee. Only by attenuating
the economic benefit test could the court deem negligence a relevant
consideration.

Under either the economic benefit test or the public invita-
tion test the purpose of the entrant's visit is determinative of

duty.^" Accordingly, the courts have placed great emphasis upon
the entrant's state of mind at the time of injury. Standard Oil Co.
V. ScovilW^^ presents a striking example of how a shift in mental
attitude affects liability. The plaintiff had paid his fuel bill at
defendant's office and v\^as walking to defendant's parking lot
when he decided to return inside to discuss a personal matter.
Upon leaving the building for the second time he slipped while
descending a wet and muddy stairway and was injured. Although
he had never left defendant's premises, recovery was denied for
want of duty. Conceding that the plaintiff was an invitee the first
time he walked down the stairs, the court held that when he re-
turned inside for the second time he was a mere licensee. By

2°«Sfee, e.g.y Robertson Bros. Dep't Store v. Stanley, 228 Ind. 372, 90

N.E.2d 809 (1950) ; Comment, supra note 11, at 164-65.

209142 Ind. App. 344, 216 N.E.2d 537 (1966).

2'°Fort Wayne Nat'l Bank v. Doctor, 272 N.E.2d 876 (Ind. Ct. App. 1971).

^''See, e.g,. Standard Oil Co. v. Hennlnger, 100 Ind. App. 674, 196 N.E.
706 (1935) ; East Hill Cemetery Co. v. Thompson, 53 Ind. App. 417, 97 N.E.
1036 (1912).

212132 Ind. App. 521, 175 N.E.2d 711 (1961). See Annot., 32 A.L.R.3d
496 (1970).



1974] PREMISES LIABILITY 1039

placing such emphasis on the entrant's subjective state of mind,

the unscrupulous plaintiff is encouraged to fabricate, ex post facto,

a purpose sufficient to withstand a status determination.^ ^^ More-

over, it obfuscates the real issues that should be considered in

permitting or denying recovery.

Although the formal pronouncement of the public invitation

test as a valid determinant of duty would eliminate a great deal

of confusion in Indiana law, this approach is not wholly satisfac-

tory. The common-law classification system is already replete
with arbitrary rules of status determination that the courts often

must misinterpret to reach a just result. Only by abrogating the
common-law classification system and replacing it with the stan-
dard of ordinary care, would the courts have a workable approach

which would permit factual variations to be placed in their proper

perspectives. The factors of economic benefit, public invitation,
and purpose of entrance would retain their importance. The basic
difference under a negligence framework would be that these
factors would no longer determine whether the issue of negligence

would even be reached. The foreseeability of harm, the gravity
of potential harm, and the burden of taking precautions would re-

ceive due consideration. If the real basis of duty is the reason-

able expectations of the parties, their actual expectations are more
logically considered on a case-by-case basis.

B. The Duty Owed to Invitees

Once an entrant attains the status of invitee, he is entitled
to assume that the possessor has exercised reasonable care to make
the premises safe for his reception.^ ^^ The duty owed by the
possessor is simply one of reasonable care under the circumstances.
The various rules that have developed in this are are but specific

2^^Prosser § 61, at 387. In Standard Oil Co. v. Henninger, 100 Ind. App.
674, 196 N.E. 706 (1935), plaintiff was injured while searching for a toilet
at a gasoline station. The complaint alleged that plaintiff was an invitee on
the ground that defendant induced his customers to enter by advertising free
maps and toilet facilities. The whole trial was conducted upon this theory.
However, plaintiff's attorney failed to introduce evidence supporting this
allegation. Instead, he introduced evidence that plaintiff decided to buy gaso-
line from the defendant prior to the injury. Recovery was denied. The case
could have been sound authority in Indiana for the public invitation test had
not plaintiff's attorney relied solely upon an alleged change of mind in an
effort to fit the facts of the case to the economic benefit test.

2^ ^Robertson Bros. Dep't Store v. Stanley, 228 Ind. 372, 90 N.E.2d 809

(1950).



1040 INDIANA LAW REVIEW [Vol. 7:1001

clarifications of this standard.^ '^ Since one ground for imposing

the duty of care is the possessor's superior knowledge of the

premises,^ ^^ he must have actual or constructive knowledge that
the premises are unsafe before he can be held liable for his negli-

gence.^'^ The possessor is required to anticipate which parts of
the premises will be traversed both incidentally and necessarily

by an invitee acting within the purpose and scope of the invita-
tion.^'® The duty extends to all such areas, and the possessor must
make them accessible by providing a safe and suitable means of
ingress and egress.^'' The duty of care is an active and continuous
one.^^° Accordingly, the possessor is affirmatively bound to make
such inspections as a reasonable and prudent man would make to
discover defects of which he is unaware.^^' The duty of inspection
arises from the possessor's knowledge of possible defects and their
reasonable probability,^^^ and he will be charged with such knowl-
edge if either he or his agents could have discovered the defect in

the exercise of reasonable care.^^^ The emphasis here is on rea-
sonableness, and in the absence of notice the possessor need not

make inspections of a minute character to discover latent defects.^^"*
However, the continued use of an object over a long period of

2^5Rust V. Watson, 141 Ind. App. 59, 217 N.E.2d 859 (1966) (duty to
inspect is further clarification of the standard of reasonable care under the
circumstances)

.

^'^See, e.g., Clark v. City of Huntington, 74 Ind. App. 437, 127 N.E.
301 (1920).

^'^E.g., Great A. & P. Tea Co. v. Custin, 214 Ind. 54, 13 N.E.2d 542
(1938); Kroger Co. v. Troy, 122 Ind. App. 381, 105 N.E.2d 174 (1952).

^'^E.g., Silvestro v. Walz, 222 Ind. 163, 51 N.E.2d 629 (1943). But cf.
Standard Oil Co. v. Henninger, 100 Ind. App. 674, 196 N.E. 706 (1935).

^""E.g., F.W. Woolworth Co. v. Moore, 221 Ind. 490, 48 N.E.2d 644 (1943)
(stairway) ; Verplank v. Commercial Bank, 145 Ind. App. 324, 251 N.E.2d
52 (1969) (sidewalk).

220£'.£y., Robertson Bros. Dep't Store v. Stanley, 228 Ind. 372, 90 N.E.2d

809 (1950).

22'/cZ.; F.W. Woolworth Co. v. Moore, 221 Ind. 490, 48 N.E.2d 644 (1943).

222Evansville Am. Legion Home Ass'n v. White, 239 Ind. 138, 154 N.E.2d
109 (1958).

^""^E.g., Robertson Bros. Dep't Store v. Stanley, 228 Ind. 372, 90 N.E.2d

809 (1950).

224Evansville Am. Legion Home Ass'n v. White, 239 Ind. 138, 154 N.E.2d
109 (1958) (defective chair).



1974] PREMISES LIABILITY 1041

time may in and of itself be sufficient to constitute notice that a
defect exists.^"

Even if a diligent search would not have disclosed the danger-
ous condition, the possessor will be charged with knowledge of its

existence if it was created or permitted to exist by him or by
persons under his control.^^^ If the condition was created by
third parties not under his control, he will be subject to liability

only if he knows of the condition or could have known of it in
the exercise of reasonable care.^^^ In determining whether a rea-

sonable inspection would have disclosed the condition, the courts

will consider the character of the condition and the length of time

it has been in existence. For example, in Vaughn v. National Tea
Co.,^^^ the plaintiff slipped on a lettuce leaf while shopping at

defendant's store. Defendant argued on appeal that the evidence

presented at trial was insufficient to show that he had breached
a duty owed to plaintiff. Although there was no evidence show-
ing that defendant had actual knowledge of the condition, the
apellate court held that a jury could properly find that he had
constructive knov/ledge of it. The lettuce leaf was shown to have
been discolored and rotten at the time of the injury, which gave
rise to the inference that it had been on the floor long enough to
impose a duty upon the defendant to discover and remove it.

Since the rules of negligence are determinative of liability,

the possessor is not an insurer of the invitee's safety.^^' While
he may place his own terms upon the invitation, the invitee is en-
titled to full and open disclosure of these terms. The possessor may
generally assume that the fully informed invitee will take precau-
tions for his own safety.^^° Accordingly, a warning will generally

225Rust V. Watson, 141 Ind. App. 59, 217 N.E.2d 859 (1966) (cable for
lowering chandelier used thirty-four years). But see Clark Fruit Co. v.
Stephan, 91 Ind. App. 152, 170 N.E. 558 (1930) (elevator gate).

^^^E.g., William Laurie Constr. Co. v. McCullough, 174 Ind. 477, 90 N.E.
1014 (1910) (oiled floor) ; Thompson v. F.W. Woolworth Co., 100 Ind. App.
386, 192 N.E. 893 (1934) (obstructed aisle).

"7jB7.^., Kroger Co. v. Ward, 148 Ind. App. 399, 267 N.E.2d 189 (1971)
(customers tracked water from parking lot into store).

228328 F.2d 128 (7th Cir. 1964).

229£'.^., Great A. & P. Tea Co. v. Custin, 214 Ind. 54, 13 N.E.2d 542
(1938).

2^°C/. Gwaltney Drilling, Inc. v. McKee, 148 Ind. App. 1, 259 N.E.2d
710 (1970).



1042 INDIANA LAW REVIEW [Vol. 7:1001

be sufficient to fulfill the duty of care.^^' A warning may not
even be necessary if the dangerous condition is known or is likely
to be obvious to the invitee.^^^ If, however, a warning is likely to

go unheeded,^" or if the condition is of such a nature that it can-

not be encountered with reasonable safety even if known and ap-
preciated,^^"* greater care than a warning is required.

Generally, the possessor is liable only for his own negligence
and the negligence of his agents.^ ^^ However, he may be negligent
in failing to exercise reasonable care to protect the invitee from
the negligent or intentional acts of the third parties not under his

control whom he knowingly permits upon the premises."* He
is bound to control or expel such persons if through his past ex-
perience or present observation he has reason to believe that they

present an unreasonable risk of harm to the inviteee.^^^ He will
not be liable if he could not reasonably have anticipated or guarded

against such harm's occurring."®

Courts frequently fall into the trap of erecting rigid rules

on the basis of one particular circumstance rather than following

the basic principle of reasonable care under all circumstances. In

the recent case of Hammond v. Allegretti,^^'^ the Indiana Supreme
Court renounced this practice by reversing a line of appellate
court decisions^'*^ which held that the possessor owed no duty as

=^^'Prosser §61, at 394.

"^C/. Christmas v. Christmas, 305 N.E.2d 893 (Ind. Ct. App. 1974).

^"Kroger Co. v. Ward, 148 Ind. App. 399, 267 N.E.2d 189 (1971) (signs
warning of wet floor at store entrance held to be insufficient to satisfy duty
of reasonable care under the circumstances).

^^^See Hickey v. Shoemaker, 132 Ind. App. 136, 167 N.E.2d 487 (1960)
(ice at entrance to funeral home).

^^^E.g., Glen Park Democratic Club, Inc. v. Kylsa, 139 Ind. App. 393,
213 N.E.2d 812 (1966).

^^^Id. (hotel owner owed duty of reasonable care to protect patrons from
injury and insult at the hands of irresponsible persons whom he knowingly
permitted on premises).

"^Prosser § 61, at 395.

23aYingst V. Pratt, 139 Ind. App. 695, 220 N.E.2d 276 (1966) (tavern

owner justified in using force to repel robber and not liable for failure to
exercise reasonable care).

239311 N.E.2d 821 (Ind. 1974).

24°Hammond v. Allegretti, 288 N.E.2d 197 (Ind. Ct. App. 1972) ; Kalicki
V. Beacon Bowl, Inc., 143 Ind. App. 132, 238 N.E.2d 673 (1968). See also



1974] PREMISES LIABILITY 1043

a matter of law to remove natural accumulations of ice and snow
from private parking lots. The Hammond court found that such
a rule unjustifiably diluted well established tort principles, and

the presence of such conditions should in no way diminish the
duty of reasonable care.^^^ What is reasonable in one situation
may be unreasonable in another, and ultimate liability is a matter
separate and distinct from the existence of a legal duty. Thus, the

court emphasized that its holding should not be construed as an

inflexible rule requiring the immediate removal of ice and snow.^"^^

The trier of fact must consider the vast range of evidence in arriv-
ing at a determination of liability or nonliability. The duty of
ordinary care does not subject the possessor to strict liability.

Recovery will be denied if the invitee is injured while outside the

scope of his invitation^ ''^ or while carrying out a purpose of his

own.^^"^ As in negligence actions generally, contributory negli-
gence^''^ and incurred risk^^^ are valid defenses. Unreasonable

burdens are not imposed upon the possessor, and the burden of

precaution must be equitable and reasonable in light of foreseeable
risks of harm.^^^

Indiana judges have experienced little difficulty in applying

the standard of ordinary care to find specific duties owed to an
invitee. The standard was designed to accommodate an infinite
variety of factual settings. The desirability of using the standard
of ordinary care is easily seen by comparing the clarity of Indiana
law as to what duties are owed to invitees with the confusion in
the law regarding duties owed to licensees and trespassers. How-
ever, the present approach requires that a cumbersome status

Boss-Harrison Hotel Co. v. Barnard, 148 Ind. App. 406, 266 N.E.2d 810
(1971); Halkias v. Gary Nat'l Bank, 142 Ind. App. 329, 234 N.E.2d 652
(1968).

2^'311 N.E.2d at 826-28.

=^Vd. at 826.

2435gg Thistlethwaite v. Heck, 75 Ind. App. 359, 128 N.E. 611 (1920).

2^*5^ee Standard Oil Co. v. Scoville, 132 Ind. App. 521, 175 N.E.2d 711
(1961) (person entering defendant's place of business to discuss personal

problem)

.

""^^E.g., Standard Oil Co. v. Meissner, 102 Ind. App. 552, 200 N.E. 445
(1936). Assumption of risk is also a defense. See Tyler v. Nolan, 144 Ind.
App. 665, 248 N.E.2d 186 (1969).

24^^66 Christmas v. Christmas, 305 N.E.2d 893 (Ind. Ct. App. 1974).

2^^311 N.E.2d at 826. See also Hickey v. Shoemaker, 132 Ind. App. 136,
167 N.E.2d 487 (1960) (accumulation of ice at entrance to funeral parlor).



1044 INDIANA LAW REVIEW [Vol. 7:1001

determination be made before the rules of negligence are per-
mitted to operate. The public invitation test and the economic
benefit test seem to be nothing more than legal fictions utilized
to measure the reasonable expectations of the parties. The ex-
pectations of parties are more logically considered with the factual
issues of foreseeability of harm, the burden of taking precautions,

and other negligence considerations than with legal questions of

status. The flexibility of the negligence formula is unnecessarily
impeded by requiring that a status determination be made.

V. The Implications of the Negligence Approach

The duty of care owed by the possessor to an entrant is best
determined on the basis of ordinary care in light of the circum-

stances. In reiteration, five basic arguments point strongly in

favor of the abrogation of the common law classification system

:

( 1 ) the policy rationale behind the common law system is no longer
relevant to modern society,^^^ (2) the negligence formula is a flex-
ible vehicle for a fair determination of liability since it permits

the determination of liability to be made on the basis of community
standards,^^' (3) meritorious claims will no longer be denied

solely on the basis of the entrant's status and more cases of this
nature will progress beyond the pleading stage,"° (4) the judicial

waste involved in a preliminary status determination which serves
to obscure rather than illuminate the issues worthy of scrutiny
in a given case will be mitigated,"' and (5) the confusion and the
inconsistencies incident to judicial implementation of the common
law system will to a large extent be eliminated."^

However, new problems of policy and law may be expected
to arise with the implementation of the negligence approach. It

has been suggested that actuarial realities may dictate a cost in-
crease of landowner's insurance premiums."^ Such an objection
may be made to any expansion of the scope of tort liability, and
should in no way diminish the desirability of the negligence ap-

^""^See Smith v. Arbaugh's Restaurant, Inc., 469 F.2d 97, 101 (D.C. Cir.
1972). Hughes, Duties To Trespassers, 68 Yale L.J. 633, 694 (1969).

249Smith V. Arbaugh's Restaurant, Inc., 469 F.2d 97, 102 (D.C. Cir. 1972).

25°5ee, e.g., 25 Vand. L. Rev. 623, 636 (1972).

^^'See, e.g., id. at 634.

2"5fee, e.g., Rowland v. Christian, 69 Cal. 2d 108, 443 P.2d 561, 70 Cal.
Rptr. 97 (1968); 25 Vand. L. Rev. 623, 635 (1972).

"325 Vand. L. Rev. 623, 635 (1972).



1974] PREMISES LIABILITY 1045

proach in the area of premises liability. Society is largely pre-

dicated upon the allocation of burdens and responsibilities among
its members,^^"^ and insurance is a viable means of transferring
the risks incident to such burdens at a moderate cost.^^^ The in-
crease in the number of collusive claims has also been deemed an
unfortunate potential consequence of the abrogation of the common
law system."^ However, this possibility exists under any standard

of care, and is more appropriately dealt with by the criminal law
than the law of premises liability.^^^

Perhaps the most difficult task that the courts will encounter
in utilizing the negligence approach is the formulation of instruc-

tions which determine the extent to which the status of the entrant

should bear upon the issue of liability. The negligence standard
could readily be subverted by judicial reinstatement of the com-
mon-law rules through jury instructions which overly emphasize
the character of entry.^^^ The major decisions^^'' which abrogated
the common-law system have offered little insight as to how much
weight would be given to the character of entry. It would seem,
however, that the standard of care previously owed to invitees
would be owed to entrants generally.^^° Three principles have
been offered to facilitate the just application of the general rules

of negligence to premises liability cases.^^^ First, the circumstances

^^^Hammond v. Allegretti, 311 N.E.2d 821, 826 (Ind. 1974).

^^^In a concurring opinion in Smith v. Arbaugh's Restaurant, Inc., 469
F.2d 97, 107 (D.C. Cir. 1972), Judge Leventhal advocated that the common-
law system be abolished only with regard to entrants upon the property of
a business establishment. A primary rationale behind this approach is that
business establishments can distribute the burden of liability through insur-

ance or self insurance by spreading the loss among its customers. For a
criticism of Judge Leventhal's approach, see Comment, Smith v. Arbaugh^s
Restaurant, Inc., and the Invitee-Licensee-Trespasser Distinction, 121 U. Pa.
L. Rev. 378 (1972).

2"5ee Comment, supra note 255, at 384-85; 25 Vand. L. Rev. 623, 637

(1972).

^^^See Comment, supra note 255, at 385.

2585fee 25 Vand. L. Rev. 623, 638 (1972).

25'5ee Smith v. Arbaugh's Restaurant, Inc., 469 F.2d 97 (D.C. Cir. 1972)

;

Rowland v. Christian, 69 Cal. 2d 108, 443 P.2d 561, 70 Cal. Rptr. 97 (1968)

;

Mile High Fence Co. v. Radovich, 489 P.2d 308 (Colo. 1971) ; Pickard v. City

of Honolulu, 452 P.2d 445 (Hawaii 1969).

260The jury instructions suggested by the court in Smith v. Arbaugh's

Restaurant, Inc., 469 F.2d 97, 106 (D.C. Cir. 1972), were instructions previ-

ously used to define the duty of care owed to invitees.

"^^^See Comment, supra note 255, at 385-87.



1046 INDIANA LAW REVIEW [Vol. 7:1001

of entry will generally bear a relation to the foreseeability of an

entrant's presence. This should be balanced with the fore-

seeable risk of harm and the burden of taking precautions in
determining v/hether the possessor exercised reasonable care.^*^

Secondly, what is a reasonable burden upon one possessor might be
an unreasonable burden upon another, and the law of negligence

should allocate burdens fairly and equitably. Thirdly, the possessor

may continue to assume that trespassers and licensees who should
realize that their presence is unknown and unforseeable will ex-
ercise reasonable care for their own safety. By adhereing to these
principles, courts will impose liability only when the possessor
acted unreasonably, and the interest in human safety will be con-
sidered as well as the interest in the free and open use of one's

land.

VI. Conclusion

The common-law classification system enjoys continued formal
acceptance by Indiana courts. On the other hand, the mores of
modern society demand that current policy factors receive great-
er consideration than is possible by rigidly adhering to the
common law rules. The result is a gulf between judicial thought
and judicial expression.^" The courts have created exceptions,
resorted to fictions, and misapplied existing doctrines to mitigate
the harsh operation of the classification system. The results
achieved by this process fairly approximate the results that would
be achieved by holding the possessor to a standard of due care.
However, the continued use of fictions requires that inquiries be

made that have little relevance to the vital policy considerations
of the day, and on occasion arbitrary and harsh results are at-
tained. The misapplication of existing doctrine and the creation
of exceptions thereto breeds confusion and complexity in the law

2*25fee Smith v. Arbaugh's Restaurant, Inc., 469 F.2d 97, 105-06 (D.C.
Cir. 1972).

^^^Professor Eldredge has aptly depicted the effect of the gulf between
thought and expression:

[A] developing law of negligence has battered continually at the

gates guarding the immunities of possessors of land. Compromise
after compromise has been effected between the social value of
human life and the social value of the unrestricted use of land. The
last chapter is not yet written. ... In studying the cases the trouble

too frequently is in the difference between what the courts say and
what they decide. Too often the terminology is still in eighteenth
or nineteenth century phrasing.

Eldredge, Tort Liability to Trespassers, 12 Temp. L.Q. 32, 34 (1937).



1974] PREMISES LIABILITY 1047

without accomplishing a workable approach to determining the

duty of care owed by the possessor. A more rational method of
imposing or denying liability in the area of premises liability is

needed in Indana law. The most rational method at the disposal of
the courts is the application of the general rules of negligence.^^^

There are no policy reasons in existence today which justify the
exemption of the landowner from the standard of care demanded
of enterprises generally.^

*^

James J. Brennan

^^'^If Indiana courts are reluctant to make such a doctrinal departure
from existing law, a second alternative exists. The Restatement of Torts
provides a coherent body of law which approximates the standard of ordinary
care in determining the duty owed by the possessor. See Restatement (Sec-
ond) OF Torts §§ 328E-62 (1965). However, the adoption of the Restatement
approach would tend to perpetuate rather than eliminate adherence to the
ancient terminology of the common law system. On this basis, the Restate-
ment approach has been justly criticized. See Hughes, Duties to Trespassers,
68 Yale L.J. 633, 648-49 (1959).

'^^^See James, supra note 27, at 153.