dissenting.
This case represents a textbook example of a suit ripe for summary judgment. I would affirm the judgment below because, in my opinion, the district court correctly analyzed the undisputed facts and error-lessly applied Indiana's law to those facts.
The majority recognizes that there are no disputes of fact. The determinative legal issue in this case is whether under Indiana law, Ms. Hutchins was an invitee or a licensee. The trial judge ruled that “the railroad did not invite Ms. Hutchins to visit the locomotive for some mutually beneficial business purpose; rather, it allowed her to board at her own insistence so that she could satisfy her curiosity.” Judge Dillin’s Entry at p. 6, dated December 29, 1988. I believe that the record amply supports that conclusion and none other.
The district court granted the defendant’s motion for summary judgment because it concluded that Ms. Hutchins was a licensee. The majority holds, as a matter of law, that Ms. Hutchins was an invitee, even though the plaintiffs did not move for summary judgment. I believe that Ms. Hutchins does not qualify as an invitee under Indiana’s broad definition of an invitee; that definition is found in Section 332 *982of the Restatement (Second) of Torts. Fleischer v. Hebrew Orthodox Congregation, 504 N.E.2d 320, 322-323 (Ind.App.1987); City of Bloomington v. Kuruzovich, 517 N.E.2d 408, 412-413 (Ind.App.1987). In Fleischer, the court of appeals of Indiana, interpreting the Restatement’s public invitee test, held that the test requires two showings:
The public invitee test set out in Restatement section 332(2) would require that the occupant open his premises to the public or to some broad segment of it.... The test would further require that the visitor enter the premises for the particular purpose for which the occupant has encouraged the public to do so.
Fleischer, 504 N.E.2d at 323 (emphasis added); see also City of Bloomington, 517 N.E.2d at 413.
In my estimation, there is a critical distinction between opening one’s premises to the areas designed for the use of the public and granting special permission to enter hazardous areas which are not so designed. Viewing the facts and all reasonable inferences therefrom in the light most favorable to the plaintiffs, I am unable to find any factual support in the record that suggests that the defendant extended an open invitation to the public to climb up the precarious stairs leading to the cab of the locomotive. The fact that the defendant’s employees had the discretionary authority to grant requests from spectators enabling them to climb up into the cab of the locomotive does not satisfy the first element of Indiana’s public invitee test.
The record is silent as to what exactly the railroad did to “open [its] premises to the public or to some broad aspect of it.” Entry onto a steam locomotive by any member of the public was, as the majority acknowledges, only by “permission.” Tellingly, Ms. Hutchins also recognized that she needed “permission” to board the cab of the locomotive. The record establishes that the plaintiffs’ only expectation was “to view the train.” Deposition of David Hutchins, p. 27; see also deposition of Linda Hutchins, p. 34.
While Carl Smith, a foreman employed by the defendant, states that “as a general rule” spectators are allowed to board the locomotive, it is clear that this allowance is in response to specific requests on the part of the spectators and not an open invitation to them. This is explained more fully by Thomas Lynch, a master mechanic employed by the defendant who assists the defendant in crowd control and public relations. Mr. Lynch averred in his deposition at p. 34:
Well, we have an operating rule that basically says that outsiders are not permitted to ride on them, on a locomotive. But this, this is kind of unusual, this is different in the sense that it’s not everyday a youngster gets to see a steam engine, or an older adult as far as that’s concerned. And they become curious and beg and plead to get up there, and finally if the time is right you say yeah, come on, you want to see what it looks like. So, I think it’s just out of the graciousness of the train crew’s heart that they try to allow these people to satisfy their curiousities [sic], (emphasis added.)
Whatever David Hutchins may have read in the Frankfort Times is not part of this record. In my opinion, it is inappropriate to infer that the railroad had extended an open invitation to spectators to climb up into the cab of the locomotive. The railroad opened up the public’s opportunity to stand alongside and view the train; we know that that was the only expectation of the plaintiffs.
Nothing in the record warrants a finding that the public had an open invitation to board the train’s locomotive cab. From the contract between the defendant and the Roanoke Historical Society, we find that the train’s primary purpose in arriving at Frankfort, Indiana, was to allow for the embarking and disembarking of paying passengers. We also learn that admission into the passenger cars was prohibited unless one had purchased a ticket. Par. 5(f) of the Contract. The physical nature of the ladder leading to the cab of the locomotive does not suggest a broader invitation: *983the pictures in the record demonstrate that the ladder leading to the cab is perpendicular to the ground and not angled for easy access to the next level.
The second requirement of the public invitee test has not been met in the ease at bar. In my estimation, the railroad owed a duty of care to Ms. Hutchins while she was there “for the particular purpose” of viewing the excursion train. The record is abundantly clear that the railroad did not invite her to climb up the cumbersome steps leading to the locomotive cab. Rather, when Ms. Hutchins, out of her own sense of curiosity, sought and received permission to board the cab of the train, she became a licensee because she was no longer there for the particular purpose for which the railroad was open to the public.
Based on the record before this court, I endorse the district court’s determination that Ms. Hutchins was a licensee.
[O]ne who enters for his own convenience, curiosity, or entertainment is a licensee by permission, or a mere licensee, who (with certain exceptions) must take the premises as he finds them.
Hundt v. LaCrosse Grain Co. Inc., 425 N.E.2d 687, 698 (1981), citing Standard Oil of Indiana, Inc. v. Scoville, 132 Ind.App. 521, 175 N.E.2d 711 (1976).
Accordingly, I respectfully dissent.