Arilia S. Gorham, 86-LW-0361
| Decision Date | 20 February 1986 |
| Docket Number | 86-LW-0361,50108 |
| Parties | Arilia S. GORHAM, Plaintiff-Appellant, v REGIONAL TRANSIT AUTHORITY, et al., Defendant-Appellees. |
| Court | Ohio Court of Appeals |
Civil appeal from Common Pleas Court
Jerome L. Bentoff, Larry S. Klein, Cleveland, Ohio, for plaintiff-appellant.
Douglas A. Gonda, Cleveland, Ohio, for defendant-appellee, Regional Transit Authority.
Stuart A. Friedman, Cleveland, Ohio, for defendant-appellee, City of Cleveland.
JOURNAL ENTRY and OPINION
The plaintiff appeals from summary judgments which dismissed her claims against the city and the transit system for injuries she sustained at a bus stop. Genuine issues of material fact precluded a summary judgment for the transit system, so we reverse and remand that claim for further proceedings. We affirm the dismissal of her claim against the city.
The defendants supported their motions for summary judgment with deposition testimony from the plaintiff. She opposed with a deposition from the city's snow removal "Planning Coordinator."
According to the plaintiff's deposition testimony, she stood at a street corner duly marked as a transit system bus stop. Snow was already on the ground, and it was snowing that day. At the curb, there was a snow bank one and one-half or two feet high. The bank appeared to have been created by city snow plows when they cleared the streets. The plaintiff surmised that whoever cleared the sidewalk might have added snow to the mound. She saw no openings through which a pedestrian could pass.
A transit system bus approached "as close as it could" to the bus stop. When the driver opened the bus door, she and other potential passengers crossed the snow bank to reach the bus. As the plaintiff stepped on the mound, she slipped and fell in the street. She immediately went to a hospital, where she received treatment for injuries to her knee, back and shoulder.
In his deposition, the city's snow removal supervisor testified that the city had no specific policy about plowing at bus stop and crosswalk areas. The plow operator will sometimes raise his plow at those locations to avoid creating a snow bank. The decision whether to do so is left to the individual operator. He knew of no arrangements between the city and the transit system for snow removal. He had seen transit system employees plow transit parking lots and shovel snow at some bus stops, but he could not identify the locations.
The plaintiff's first assignment challenges the summary judgment in favor of the transit system. She contends that a passenger-common carrier relationship existed which required the transit system to exercise care for her safety. Alternatively, she argues that the transit system impliedly assumed a duty to remove the ice and snow by voluntarily clearing some bus stops.
The carrier-passenger relationship exists when the parties have created an express or implied contract and the carrier can practically exercise care for the passenger's protection. Cincinnati Traction Co. v. Holzenkamp (1906), 74 Ohio St. 379, 384; Carroll v. Youngstown Mun. Ry. (1934), 18 Ohio Law Abs. 9, 13-14.
By stopping the bus and opening its doors, the transit system impliedly accepted a contract to carry persons waiting at that designated bus stop. However, the transit system had no control over the plaintiff's movements. Cf. Carroll, supra, at 13-14. It had no control over the sidewalk or the curb. Id.; Klovedale v. Ohio Pub. Serv. Co. (1936), 54 Ohio App. 244, 249-50. Thus, it had no practical ability to protect this plaintiff, so it had not yet assumed a full passenger-carrier relationship.
However, the carrier had a general duty to exercise reasonable care not to injure other users of the roadway. The nature of that duty depended upon the carrier's relationship with such other users. Its relationship to this prospective passenger required it to exercise ordinary care not to cause her harm by its affirmative conduct. See Zuckerman v. New York (1979), 66 App.Div.2d 248, 251, 413 N.Y.S.2d 657, 659.
The carrier had a duty to exercise reasonable care lest it induce her to face unreasonably hazardous conditions. Kotronakis v. San Francisco (1961), 192 Cal.App.2d 624, 629, 13 Cal.Rptr. 709, 711; Herron v. Rose City Transit Co. (1966), 243 Ore. 64, 411 P.2d 445; cf. Roberts v. American Brewed Coffee (1973), 40 Ohio App.2d 273 (); Thomas v. Goodies, Ice Cream Co. (1968), 13 Ohio App.2d 67 (same). It could be liable for opening the bus doors to invite boarding at a hazardous location if a safer location was reasonably available.
The transit system had no duty to remove the snow from the sidewalk. Kotranakis, supra. The sidewalk was not an area within its control. Many persons who were not prospective passengers used it. The burden of such a duty would be crippling. Nor did the plaintiff present evidence that the transit system assumed that duty for this bus stop. Cf. Hammond v. Moon (1982), 8 Ohio App.3d 66, 68. There was no evidence that the transit system ever removed snow at this location. We cannot say that the transit system assumed the duty to clear all bus stops by clearing some of them at some earlier time.
Whether this snow bank created an unreasonable hazard for prospective passengers and whether this driver should have attempted to avoid it may be questions of fact. The plaintiff's failure to see an opening in the snow bank did prove that there was none nearby. The transit system sought summary judgment, so it had the burden to preclude any reasonable basis for the plaintiff's recovery. Rayburn v. J.C. Penney Outlet Store (1982), 3 Ohio App.3d 463, 464; Whiteleather v. Yosowitz (1983), 10 Ohio App.3d 272, 274. The evidentiary materials in this case do not preclude those factual issues. Hence, we sustain the plaintiff's first assignment of error.
The plaintiff's second assigned error complains that the trial court granted summary judgment for the city. She contends that the city breached the duty of care imposed by R.C. 723.01.
R.C. 723.01 provides:
This statute requires municipalities to exercise reasonable care in maintaining the streets and sidewalks. See Mills v. Springfield (1956), 75 Ohio Law Abs. 150, 156:
"Municipalities are not insurers of the safety of their public ways, and are liable only for negligence in creating a faulty condition in such ways, or in failing to repair, remove or guard against defects or obstructions therein, after...
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