Brown v. Cleveland Baseball Co.

• Citation: 158 Ohio St. 1,106 N.E.2d 632
• Decision Date: 04 June 1952
• Docket Number: No. 32800,32800
• Parties: , 47 O.O. 478 BROWN v. CLEVELAND BASEBALL CO.
• Court: United States State Supreme Court of Ohio

Page 1

158 Ohio St. 1

106 N.E.2d 632, 47 O.O. 478

BROWN v. CLEVELAND BASEBALL CO.

No. 32800.

Supreme Court of Ohio.

June 4, 1952.

Syllabus by the Court.

1. Where a petition asserting a cause of action to recover for personal injuries claimed to have been caused by the defendant's negligence is filed within the statutory period of limitation and alleges that the defendant's negligence was in doing something, an amendment of the petition, substituting for such allegation an allegation that defendant's negligence was in failing to supervise someone else in doing the same thing, does not change the cause of action and may be made after the statutory period of limitation has expired.

2. One having neither occupation nor control of premises ordinarily is under no legal duty to an invitee of another with respect to the condition or use of those premises.

3. In order to have the occupation or control of premises necessary to impose such legal duty with respect to the condition or use of those premises, one must ordinarily have the power and the right to admit such individuals to the premises or to exclude them from the premises.

4. Where a lessor has not substantially relinquished to his lessee all occupation of and control over a portion of the leased premises and where such lessor has actually exercised his right of occupation of or control over such portion, such lessor is under the duty to exercise ordinary care with respect to the condition of such portion and that duty extends to invitees of the lessee.

5. In such an instance, the duty with respect to the condition of such portion of the premises, owed by the lessor to an invitee of the lessee, is the same duty which any occupier of premises would owe to his own invitees.

This is an action by plaintiff to recover damages from defendant on account of personal injuries received when certain temporary bleachers collapsed at a professional football game in 1945 between the Cleveland Rams and the Green Bay Packers.

The game took place at League Park in Cleveland. That park had been owned by defendant corporation and was used at the time of the game, pursuant to a so-called lease agreement, by Daniel F. Reeves, who was then doing business as the Cleveland Rams Football Club and who is therein referred to as the Rams.

The amended petition charges defendant with negligence in failing to provide a safe place for spectators including the plaintiff, in crowding more people on the temporary stands than they could reasonably be anticipated to withstand, and in filing to properly supervise and maintain the stands before and while in use at the game.

The cause was tried in the Common Pleas Court and resulted in a verdict for the plaintiff for $25,000. Defendant's motions for judgment non obstante verdicto and for a new trial were overruled and judgment was rendered on the verdict for plaintiff.

On appeal to the Court of Appeals, that judgment was affirmed on condition that plaintiff accept a remittitur of $9,000, which was duly accepted.

The cause is now before this court, pursuant to allowance of a motionto certify the record, on appeal from the judgment of the Court of Appeals.

Bulkley, Butler & Rini, Cleveland, for appellant.

Sindell & Sindell and Marvin S. Zelman, Cleveland, and Carl M. Myers, Akron, for appellee.

TAFT, Judge.

The first contention of defendant is that the trial court erred in permitting plaintiff to file an amended petition. The request for permission to file this amended petition was made and the permission was granted during the trial and at a time after the statutory period of limitation had expired. Admittedly, the original petition had been filed before expiration of that statutory period of limitation.

The original petition had, to use the words of defendant's brief, 'asserted defendant was negligent with respect to an activity, namely the construction of temporary stands,' whereas by the amended petition plaintiff substituted for such assertion an allegation of 'negligent failure to supervise an independent third party * * * when he did the construction job.'

We believe that defendant's contention, that plaintiff thereby changed her cause of action after the statutory period of limitation had expired, is necessarily disposed of in favor of plaintiff by Louisville & Nashville Rd. Co. v. Greene, Admx., 113 Ohio St. 546, 149 N.E. 876. The statute authorizing such amendment is the same today as when that case was decided. Section 11363, General Code. See, also, Douglas, Admx., v. Daniels Bros. Coal Co., 135 Ohio St. 641, 22 N.E.2d 195, 123 A.L.R. 761; Moherman v. Nickels, 140 Ohio St. 450, 45 N.E.2d 405, 143 A.L.R. 1174. Cf. Ferguson v. Industrial Commission, 138 Ohio St. 529, 37 N.E.2d 194.

It is not claimed that defendant requested and the record does not disclose that defendant requested any continuance after the plaintiff was authorized to file the amended petition.

In substance, defendant's further contentions are the trial court erred

(1) in not holding as a matter of law that plaintiff could not recover from defendant, and

(2) in instructing the jury that, as a matter of law, (a) plaintiff was an invitee of defendant and (b) defendant had full control of the premises at the time of the injuries to the plaintiff.

These other contentions of defendant can not be sustained if the evidence is such as to require the conclusions, as a matter of law, that defendant had not relinquished substantially all occupation and control of the premises upon which plaintiff was injured at the time that she was injured and that defendant had at that time exercised such occupation and control.

The record discloses that all invitations to attend this football game were extended by the Rams who were in the business of conducting National League professional football games, who sold the tickets for the game and whose team was one of the participants in the game. Admittedly the stands, whose collapse caused injuries to plaintiff, were temporary stands erected by the Rams. Unlike in Witherspoon v. Haft, 157 Ohio St. 474, 106 N.E.2d 296, defendant did not erect those stands. Furthermore, there is no direct evidence of any participation by defendant in their erection or of any activity by defendant in supervising their erection or in maintaining them.

The failure of the defendant to take any action, with respect to these temporary stands erected by the Rams or their occupation by invitees of the Rams, could not be actionable negligence unless defendant was under a legal duty to such invitees to take such action. One having neither occupation nor control of premises ordinarily has no such duty with respect to the condition or use of those premises. In order to have the occupation or control of premises necessary to imposes such a duty as to particular individuals, one must ordinarily have or exercise the power and the right to admit such individuals to the premises or to exclude them from the premises. See Cooper v. Roose, 151 Ohio St. 316, 85 N.E.2d 545.

Under the terms of the so-called lease to the Rams it was provided that the...