Carswell v. Toledo Edison Co.

• Decision Date: 23 September 1988
• Docket Number: No. L-88-005,L-88-005
• Citation: 53 Ohio App.3d 82,557 N.E.2d 1241
• Parties: CARSWELL, A Minor, et al., Appellants, v. TOLEDO EDISON COMPANY, Appellee. *
• Court: Ohio Court of Appeals

Page 82

53 Ohio App.3d 82

557 N.E.2d 1241

CARSWELL, A Minor, et al., Appellants, v. TOLEDO EDISON COMPANY, Appellee. ^*

No. L-88-005.

Court of Appeals of Ohio, Sixth District, Lucas County.

Sept. 23, 1988.

Syllabus by the Court

1. Ohio law continues to recognize the distinction between invitees, licensees, and trespassers rather than a uniform standard of care applicable to all who enter upon another's property.

2. Ohio law, in some circumstances, does not impose on a landowner or occupier a duty to anticipate the

presence of children or to prepare for their safety.

3. An exception to the rule that a property owner or occupier owes to undiscovered trespassers nothing other than to refrain from injuring such trespassers by willful or wanton conduct exists where the owner or occupier maintains a dangerous instrumentality on or immediately adjacent to a public place where the instrument of harm's dangerousness is not readily apparent to children and where it is within easy reach or is susceptible to contact by inadvertent conduct.

E.J. Leizerman, Toledo, for appellants.

John J. McHugh III, Toledo, for appellee.

PER CURIAM.

This cause is before this court on appeal from a judgment of the Lucas County Court of Common Pleas.

On November 19, 1982, appellant Johnny Carswell, age ten, and a few friends were returning from another friend's home located west of Interstate 280. They walked easterly along Seaman Street, passed under the interstate viaduct, climbed up and over the railroad bypass, and crossed over the railroad tracks. They decided to take a shortcut through a privately owned vacant field. Upon this field and located 38.7 feet from Seaman Street at its nearest point was a one-hundred-thirteen-foot steel electrical transmission tower on an easement owned and maintained by appellee, Toledo Edison Company. An energized overhead transmission line was located on this tower at a height of sixty feet above the ground. Appellant climbed this tower and suffered permanent and disfiguring injuries when he came in contact with the live line.

Appellants Johnny Carswell and his parents sued appellee on theories of negligence, gross negligence, willful and wanton misconduct, and attractive nuisance.

The attractive nuisance argument was dismissed, and partial summary judgment was entered on the negligence claim. Upon reconsideration in light of intervening precedent, the summary judgment on the negligence claim was affirmed. The trial court further granted summary judgment in favor of appellee on the gross negligence and willful and wanton misconduct theories.

Appellants timely appealed these decisions and assign as error:

"1. The Trial Court erred in granting defendant Toledo Edison Company's Motion for Partial Summary Judgment as to negligence and in denying plaintiffs' Motion for Reconsideration by holding as a matter of law that defendant did not owe plaintiff a duty of ordinary care.

"A. The Court erred in not applying the public place exception.

"B. The Court should adopt Restatement (Second) of Torts, Section 339.

"C. The Court should abolish all distinctions as to a person's status upon property in favor of one uniform standard of care applicable to all.

"2. The Trial Court erred in granting defendant's Motion for Summary Judgment on the issue of willful or wanton negligence because on the facts presented reasonable minds could differ as to whether defendant's conduct amounted to willful or wanton negligence."

To determine the propriety of the trial court's entry of summary judgment, this court must examine the record of the appeal in a light most favorable to the party opposing the motion for summary judgment, see Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 66 O.O.2d 311, 309 N.E.2d 924; Engel v. Corrigan (1983), 12 Ohio App.3d 34, 12 OBR 121, 465 N.E.2d 932; and evaluate whether the requirements of Civ.R. 56(C) were present. That is, there must be no genuine issue as to any material fact, the moving party must be entitled to judgment as a matter of law, and reasonable minds must be able to come to only one conclusion which is adverse to the party opposing the motion. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47.

Initially addressing Part C of appellants' first assignment of error, appellants contend that this court should abolish the distinction between invitees, licensees, and trespassers and adopt a uniform standard of care applicable to all who enter upon another's property. Appellants cite numerous other jurisdictions which have done so.

This court recently considered this argument in Preston v. Baltimore & Ohio R.R. Co. (1988), 49 Ohio App.3d 70, 550 N.E.2d 191. Therein, we rejected this invitation to change the law, stating at 72-73, 550 N.E.2d at 194:

" * * * This argument is without merit. The courts of Ohio, including this court of appeals, are bound by the decisions of the Supreme Court of Ohio. Shuman v. Schick (1953), 95 Ohio App. 413, 416, 53 O.O. 441, 442, 120 N.E.2d 330, 332; Thompson v. Moore (1943), 72 Ohio App. 539, 541-542, 27 O.O. 491, 492, 53 N.E.2d 666, 667. See, also, Rules 1 and 2 of the Supreme Court Rules for the Reporting of Opinions. As stated in Shuman, supra, 95 Ohio App. at 416, 53 O.O. at 442, 120 N.E.2d at 332:

" 'The decisions of other jurisdictions cited by appellants * * * [may be] very persuasive but when our Supreme Court has definitely established a precedent as has been done on the question presented by these facts, it would be presumptious [sic ] for * * * [any] court [of this state] to refuse to approve or acquiesce in such decision.'

"The Supreme Court of Ohio has continued to distinguish between invitees, licensees, and trespassers in McKinney v. Hartz & Restle Realtors, Inc. (1987), 31 Ohio St.3d 244, 31 OBR 449, 510 N.E.2d 386; Elliott v. Nagy (1986), 22 Ohio St.3d 58, 22 OBR 77, 488 N.E.2d 853; Brooks v. Norfolk & Western Ry. Co. (1976), 45 Ohio St.2d 34, 74 O.O.2d 53, 340 N.E.2d 392; and numerous other cases. * * * "

Furthermore, appellee points out the more recent cases of Johnson v. New London (1988), 36 Ohio St.3d 60, 521 N.E.2d 793, and Brady v. Consolidated Rail Corp. (1988), 35 Ohio St.3d 161, 519 N.E.2d 387, which also make the status of the party a determinative factor. Accordingly, we do not find appellants' contention well-taken.

Similarly, in Part B of appellants' first assignment of error, appellants urge adoption by this court of the attractive nuisance theory as found in the 2 Restatement of the Law 2d, Torts (1965) 197, Section 339. The Ohio Supreme Court declined to adopt the attractive nuisance doctrine in Elliott v. Nagy (1986), 22 Ohio St.3d 58, 22 OBR 77, 488 N.E.2d 853, as appellants tacitly admit. Therefore, since we must follow the decisions of the Supreme Court of Ohio, Shuman, supra; Thompson, supra, we also decline to adopt this doctrine.

Turning to Part A of appellants' first assignment of error, appellants assert the trial court erred in not applying the public place exception and holding as a matter of law that appellee did not owe appellant a duty of ordinary care.

The trial court held that appellant Johnny Carswell was a trespasser upon private land and that the public place exception did not apply.

"A trespasser is one who, without express or implied authorization, invitation or inducement, enters private premises purely for his own purposes or convenience. * * * " McKinney v. Hartz & Restle Realtors, Inc. (1987), 31 Ohio St.3d 244, 246, 31 OBR 449, 450, 510 N.E.2d 386, 388.

The standard of care owed by the property owners or occupiers to undiscovered trespassers is to do nothing " ' * * * other than to refrain from injuring such trespassers by willful or wanton conduct.' " Id. An exception to this rule exists where a landowner maintains a dangerous instrumentality on or immediately adjacent to a public place where the instrument of harm's dangerousness is not readily apparent to children and where it is within easy reach or is susceptible to contact by inadvertent conduct. See McKinney, supra, at 247-248, 31 OBR at 452, 510 N.E.2d at 389-390. See, also, Wills v. Frank Hoover Supply (1986), 26 Ohio St.3d 186, 26 OBR 160, 497 N.E.2d 1118 (minor injured by ground-level oil pump located in wooded area known by landowner to be frequented by people); Coy v. Columbus, Delaware & Marion Elec. Co. (1932), 125 Ohio St. 283, 181 N.E. 131 (minor injured by electric shock from easily accessible high voltage transformer located within twenty-five feet of public path known by landowner to be frequently transgressed); Ziehm v. Vale (1918), 98 Ohio St. 306, 120 N.E. 702 (minor injured when he climbed on automobile running board located on public road and driver put automobile in motion with knowledge that child had been on car and was still in the immediate vicinity); Greene v. Lake Shore Elec. Ry. Co. (App.1930), 10 Ohio Law Abs. 7 (minor injured when he climbed thirty or more feet up a tree located in a public park, and came in contact with an uninsulated electrical wire which was hidden by the foliage); Ohio Pub. Serv. Co. v. Alexander (App.1928), 6 Ohio Law Abs. 337 (sixty-eight-year-old man killed when he climbed almost to the top of sixty foot steel high tension electrical wire tower located between sidewalk and curb of public street and came in contact with high tension wire. On appeal, case was reversed and remanded for jury to determine whether the man was warned and was contributorily negligent.); Klingensmith v. Scioto Valley Traction Co. (1924), 18 Ohio App. 290 (minor injured when he climbed thirty-seven to forty-seven feet up a forty-to-fifty-foot tall steel electrical tower with ladders on each side and came in contact with electrical wire. Tower was located immediately adjacent to dead-end street known by company to be used as a playground). Where such a situation exists and harm to a person is foreseeable by the...