Antoinette Ricciardo v. Richard Weber
| Decision Date | 22 December 1989 |
| Docket Number | 89-LW-4460,CA-3452 |
| Parties | Antoinette RICCIARDO, Plaintiff-Appellant, v. Richard WEBER, et al., Defendants-Appellees. |
| Court | Ohio Court of Appeals |
Civil Appeal from Common Pleas Court, Case No. 88-S-85287.
Dale K Perdue, Glen R. Pritchard, Columbus, for plaintiff-appellant.
David W. Wenger, William Douglas Lowe, Newark, for defendants-appellees.
Before MILLIGAN, P.J., and HOFFMAN and SMART, JJ.
PERSONAL INJURY^SLIP AND FALL (STEP INTO THE DARK)^DUTY OF LANDLORD R.C. 5321.04(A)^COMMON AREA^IMPACT OF COMPARATIVE NEGLIGENCE R.C. 2315.19^PROXIMATE CAUSE^SUMMARY JUDGMENT^ STARE DECISIS
Plaintiff's slip and fall personal injury action was dismissed upon summary judgment by the Licking County Common Pleas Court. She appeals, assigning three errors:
I.THE TRIAL COURT ERRED IN HOLDING THAT THE GUEST OF A TENANT IS A LICENSEE, AND THAT THE LANDLORD OWES SUCH A GUEST NOTHING MORE THAN A DUTY TO REFRAIN FROM WILLFUL AND WANTON ACTS OF NEGLIGENCE.
II.THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BASED UPON THE ABSENCE OF A DUTY ON THE PART OF A LANDLORD TO LIGHT THE COMMON AREAS OF AN APARTMENT.
III.THE TRIAL COURT ERRED IN HOLDING THAT PLAINTIFF WAS NEGLIGENT AS A MATTER OF LAW AND GRANTING SUMMARY JUDGMENT ON THAT BASIS.
IV.THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF PROXIMATE CAUSE BECAUSE IT FAILED TO CONSIDER MATERIAL ISSUES OF FACT.
Appellees are the owners of a two unit apartment building. On October 22, 1987, at 9:30 p.m., appellant, a guest of one of appellees' tenants, entered the building and fell on a stairway sustaining personal injuries. The apartments were upstairs and downstairs, and appellant was to visit the downstairs apartment.
Entrance to the building is through a two panel, side by side door.
Appellant entered through the left hand door. There were neither exterior nor interior lights operational. Upon entry, appellant searched for a light switch. As she reached to close the door, she fell backward down a stairway.
I reached up to where he [stepson] was at to see if there was a switch and there was none and I told him to stay still and let me close the door and I turned to close the door and there wasn't^I couldn't feel there to support me and I pushed the door shut and when I did, I went down the staircasing and the door came past the front of my chest and I went backward down the stairway.
Appellant deposition, 33.
Although there is a curious want of specific evidence, it is an alleged fact that there is no landing behind some or all of the right hand door, and the downstairs apartment steps begin directly behind the right hand door.
Construing the evidence most favorably to the appellant, the accident happened when she entered the unlit entry way at its left hand side, reached unsuccessfully for a light switch, moved to close the door, and fell backward down the steps located behind the right hand door panel. She had no advantage of visibility as she moved within the building. She sustained personal injuries.
In granting summary judgment, the trial court favors us with its rationale.
Plaintiff has set forth basically three alleged acts of negligence on the part of the Defendants. The first is that they failed to light the common area of the apartment building. Secondly, Plaintiff alleged that the entranceway into the apartment building was negligently designed as the presence of two doors leading into the entranceway gave her a false sense of safety in stepping behind the second doorway in the darkness as she anticipated a landing being there. Finally, she is asserting negligence due to the lack of a handrail on the stairway.
Trial court judgment, 2-3.
As to each of the claims, the court found:
(1) Appellees had no duty to light the common areas of the apartment building, McKinley v. Niederst (1928), 118 Ohio St. 334, and there is no evidence that the step into the darkness was the proximate cause of the fall;
(2) Appellant is not protected by the Landlord/Tenant Act, La Course v. Fleitz (1986), 28 Ohio St.3d 209, 503 N.E.2d 159. She is a licensee, Light v. Ohio University (1986), 28 Ohio St.3d 66, and the duty owed with respect to design danger and duty to warn is only "to refrain from willful and wanton acts of negligence," and the design defect was not the proximate cause of the fall; ®1¯
(3) The want of a handrail was not demonstrated to have any "role whatsoever in her fall."
Impact of comparative negligence. The substantive nature of this action, and its procedural posture, call for analysis of the change in negligence law, particularly as it relates to contributory negligence and assumption of risk, and the viability and implementation of summary judgment procedures.
Abolition of the ancient common law proposition that contributory negligence was an absolute bar to recovery, and adoption of the principle of limited comparative negligence, augured enormous change in Ohio substantive tort law. Comparative negligence, adopted June 20, 1980, R.C. 2315.19, opened the doors of the courthouse to cadres of injured persons heretofore denied effective access.®2¯
A collateral implication of comparative negligence is a diminution in the viability of summary judgment, Civ.R. 56. Under pre-1980 Ohio tort law, many cases currently on the docket would not have been filed, and if filed, summarily dismissed on summary judgment upon grounds of contributory negligence. Comparative negligence changes all of that.
Further, summary judgment in tort actions now requires even more precise analysis of the elements of a negligence action and defenses of contributory negligence or assumption of risk. The fundamental characteristics of each have not substantially changed.®3¯ But the consequences of analysis are vastly different, resulting in fewer cases being ripe for summary judgment.
The most dramatic consequence of comparative negligence, vis-a-vis summary judgment, is, in the final analysis, focused on proximate cause. If each of the parties breach a duty, that breach can result in shared proximate cause. The proportion of contribution is essentially a question for the fact finder, jury. "Duty" is generally a question of law; "breach of duty," "proximate cause," and "damages" are generally questions of fact. 70 O.Jur. 3, N.E. 6, ] 196.
Thus, the more appropriate focus upon which to resolve a comparative negligence case by summary judgment is the existence or nonexistence of a duty, and evidence of breach thereof.
Guest of tenant as licensee. The trial court, relying upon Light v. Ohio University (1986), 28 Ohio St.3d 66, 502 N.E.2d 611, concluded that the guest of a tenant was a mere licensee to whom the landlord owed "no duty except to refrain from wanton or willfully causing injury."
The Ohio Supreme Court continues to define duty of an owner of premises in the context of the status of the user. Light, supra, (1986).
In any instance involving a potential cause of action against an occupier of property, probably the first determination is the status of the plaintiff. Why was he there? Do the facts label him an invitee? Licensee? Trespasser? Or social guest? Unless the Rowland v. Christian [69 Cal.2d 108, 443 P.2d 561, 1968, 32 A.L.R.3d 496] doctrine or one similar to it is followed, that status is determinative of the occupier's duty.
Lindahl, Modern Tort Law, Callahan & Co., 1989 spp., ] 50.20.
Here, there is no evidence that the appellant was invited to the premises by the landlord, or in any way present to serve the interests of the landlord. She was present on the premises as a social guest of the downstairs tenant.
In a unanimous opinion, authored by Justice Andy Douglas, the Ohio Supreme Court has recently reaffirmed the user distinctions and drawn the lines:
Business invitees are persons who come upon the premises of another, by invitation, express or implied, for some purpose which is beneficial to the owner. Scheibel v. Lipton (1951), 156 Ohio St. 308, 102 N.E.2d 453 . It is the duty of the owner of the premises to exercise ordinary care and to protect the invitee by maintaining the premises in a safe condition. Presley v. Norwood (1973), 36 Ohio St.2d 29, 31, 303 N.E.2d 81 . Conversely, a person who enters the premises of another by permission or acquiescence, for his own pleasure or benefit, and not by invitation, is a licensee. A licensee takes his license subject to its attendant perils and risks. The licensor is not liable for ordinary negligence and owes the licensee no duty except to refrain from wantonly or willfully causing injury. Hannan v. Ehrilich (1921), 102 Ohio St. 176, 131 N.E. 504 paragraph four of the syllabus; see Scheurer v. Trustees of the Open Bible Church (1963), 175 Ohio St. 163, 192 N.E.2d 38 .
Light v. Ohio University (1986), 28 Ohio St.3d 66, 502 N.E.2d 611. (Emphasis added.)
By contrast, the Lorain County Court of Appeals addressed an issue of landlord liability to the guest of a tenant without ever confronting the status of the claimant as it impacted upon duty. That court held, as to common areas, the landlord has a duty to use ordinary care to keep the premises in a reasonably safe condition and is liable for injuries to a guest of the tenants proximately caused by his failure provided the landlord had actual or constructive knowledge of...
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