Bowins v. Euclid General Hosp. Ass'n

• Citation: 20 Ohio App.3d 29,20 OBR 31,484 N.E.2d 203
• Decision Date: 30 July 1984
• Docket Number: No. 47462,47462
• Parties: , 20 O.B.R. 31 BOWINS et al., Appellants, v. EUCLID GENERAL HOSPITAL ASSOCIATION et al., Appellees.
• Court: Ohio Court of Appeals

Page 29

20 Ohio App.3d 29

484 N.E.2d 203, 20 O.B.R. 31

BOWINS et al., Appellants, v. EUCLID GENERAL HOSPITAL ASSOCIATION et al., Appellees.

No. 47462.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

July 30, 1984.

Syllabus by the Court

1. A visitor of a patient in a hospital is an invitee.

2. As a general rule, a hospital owes no duty to a visitor using its parking lot to remove natural accumulations of ice and snow from its parking area. Only when ice and snow, which the owner or occupier knows or should know, have created a condition substantially more dangerous to an invitee than he could reasonably anticipate will the owner's failure to remove ice and snow constitute negligence.

3. The techniques for removing snow and ice from a large commercial parking lot are matters which usually require the introduction of expert testimony.

James K. Clower, Cleveland, for appellants.

John V. Jackson II, Cleveland, for appellees.

NAHRA, Judge.

On December 29, 1976, appellant, Clara Ellen Bowins, went to Euclid General Hospital to visit her husband, a patient therein since December 24, 1976. She visited him every day and testified that the condition of the sidewalks to the front entrance of the hospital were similar each day. The sidewalks were cleared so that snow was piled along the sides of the walkways and in the driveway gutters. As appellant stepped from the driveway onto the sidewalk over a mound of snow, her foot slipped on the ice on the sidewalk and then down the curb, causing her to fall and sustain injuries.

Appellant testified that the area was well lit and that she was aware of the weather conditions and the sloped curbs at the hospital. She was aware of the difference in height between the driveway and the sidewalk and that she had to step up onto the sidewalk from the driveway. She saw and was aware of the rounded portion of the curb. Appellant had been to Euclid General Hospital and had used the front entrance some fifty times over the past twenty years.

Appellant brought suit against Euclid General Hospital and Euclid General Hospital Association on December 28, 1978. The association was dismissed as a co-defendant, and a jury verdict was returned for the hospital on June 27, 1983. Appellant moved for a new trial which was denied on August 15, 1983. Appellant timely appealed assigning three errors.

I

Appellant's first two assignments of error are that:

"I. The trial court erred in finding as a matter of law that the plaintiff-appellant, Clara Ellen Bowins, was a licensee; and

"II. The trial court erred in instructing the jury that the defendant-appellee had only the duty not to cause injury to plaintiff-appellant by its wilfull and wanton misconduct."

Appellant argues that in other jurisdictions a visitor to a hospital is an invitee thus imposing a higher duty of care upon the hospital. Since the issue has not been addressed in Ohio, appellant urges that we assign the higher status to a hospital patient's visitor.

In Ohio, "an 'invitee' means a business visitor, that is, one rightfully on the premises of another for purposes in which the possessor of the premises has a beneficial interest." Scheibel v. Lipton (1951), 156 Ohio St. 308, 102 N.E.2d 453 , paragraph one of the syllabus; Durst v. Van Gundy (1982), 8 Ohio App.3d 72, 455 N.E.2d 1319. " * * * [A] 'licensee' is one who stands in no contractual relationship to the owner or occupier of premises, but is permitted or tolerated thereon, expressly, impliedly or inferentially, merely for his own interest, convenience or pleasure or for that of a third person." Keesecker v. G.M. McKelvey Co. (1943), 141 Ohio St. 162, 166, 47 N.E.2d 211 ; Garrard v. McComas (1982), 5 Ohio App.3d 179, 450 N.E.2d 730.

Applying the status tests of Ohio, we hold that a visitor of a patient in a hospital is an invitee. Accord North Broward Hosp. Dist. v. Adams (Fla.App.1962), 143 So.2d 355; McCann v. Bethesda Hosp. (1979), 80 Ill.App.3d 544, 35 Ill.Dec. 879, 400 N.E.2d 16; Himel v. Ryder (La.App.1962), 146 So.2d 209; Mattson v. St. Luke's Hosp. (1958), 252 Minn. 230, 89 N.W.2d 743; Lesyk v. Park Ave. Hosp. (1968), 29 App.Div.2d 1043, 289 N.Y.S.2d 873; Stroud v. N.C. Memorial Hosp. (1972), 15 N.C.App. 592, 190 S.E.2d 392; Hospital of St. Vincent of Paul v. Thompson (1914), 116 Va. 101, 81 S.E. 13. A hospital that provides health care and services has a beneficial interest in the welfare of its patients. Visitors play an integral role in the recuperation of patients and are, therefore, important to the operation of a hospital. Further, hospitals maintain gift and flower shops, as well as parking lots, for visitors. We are unaware of any hospital which prohibits visitors. In fact, the Fourth District Court of Appeals, interpreting North Carolina and Virginia law, stated that:

"It is a matter of common knowledge that all hospitals expect patients to have visitors, the number, duration and frequency of their visits depending upon the severity of the patient's illness. Certainly, near relatives, such as plaintiff in this case, have an implied invitation to visit. Such visits are for the mutual advantage of the patient, the visitor and the hospital. It is desirable from the standpoint of the hospital to permit, at the proper times and under proper conditions, visits to patients by relatives and friends. No one would patronize a hospital which did not permit relatives and friends to visit patients at proper times." Hamlet v. Troxler (C.A.4, 1956), 235 F.2d 335, 337.

In essence, affording patients visitors is simply part of the business of a hospital.

An invitee is owed a higher duty of care than a licensee. An invitee is owed a duty of reasonable care, Durst v. Van Gundy, supra, 8 Ohio App.3d at 74, 455 N.E.2d 1319, while a licensee is owed a duty not to be injured by willful or wanton misconduct, Salemi v. Duffy Constr. Corp. (1965), 3 Ohio St.2d 169, 209 N.E.2d 566 . As a general rule, a hospital owes no duty to a visitor using its parking lot to remove natural accumulations of ice and snow from its parking area. Kinkey v. Jewish Hospital Assn. (1968), 16 Ohio App.2d 93, 242 N.E.2d 352 . Such conditions are ordinarily so obvious that an owner or occupier of premises may reasonably expect that an invitee will discover them and protect himself against them. Sidle v. Humphrey (1968), 13 Ohio St.2d 45, 233 N.E.2d 589 , paragraph two of the syllabus; Kinkey v. Jewish Hospital, supra, 16 Ohio App.2d at 95-96, 242 N.E.2d 352. Only when ice and snow, which the owner or occupier knows or should know, have created a condition substantially more dangerous to an invitee than he could reasonably anticipate will the owner's failure to remove the ice and snow constitute negligence. Mikula v. Slavin Tailors (1970), 24 Ohio St.2d 48, 263 N.E.2d 316 , paragraph five of the syllabus; Longenberger v. Collins Food (1977), 52 Ohio App.2d 105, 368 N.E.2d 85 . Even then, if the owner or occupier and the invitee are equally aware of the dangerous condition and the invitee voluntarily exposes himself to the hazard, the owner or occupier will not be liable. See DeAmiches v. Popczun (1973), 35 Ohio St.2d 180, 299 N.E.2d 265 , paragraph two of the syllabus. An invitee is required to exercise some degree of care for his own safety. Hartman v. DiLello (1959), 109 Ohio App. 387, 157 N.E.2d 127.

The trial court ruled in error as a matter of law that appellant was a licensee. Since the corresponding duty owed an invitee is much higher than the duty owed a licensee, we conclude that the court's erroneous ruling requires a reversal and a new trial. Whether the snow and ice in this case created a...