DeAmiches v. Popczun

• Decision Date: 11 July 1973
• Docket Number: No. 72-692,72-692
• Parties: , 64 O.O.2d 106 DeAMICHES et al., Appellees, v. POPCZUN, Appellant.
• Court: Ohio Supreme Court

Page 180

35 Ohio St.2d 180

299 N.E.2d 265, 64 O.O.2d 106

DeAMICHES et al., Appellees, v. POPCZUN, Appellant.

No. 72-692.

Supreme Court of Ohio.

July 11, 1973.

Syllabus by the Court

1. The dangers from natural accumulations of ice and snow are ordinarily so obvious and apparent that a landlord may reasonably expect that a tenant on a common driveway will act to protect himself against them.

2. Where a hole in the surface of a common driveway is covered by a natural accumulation of ice and snow and the tenant's knowledge of said defect is equal to or superior to that of the landlord, the landlord is not liable for injuries sustained by the tenant as the result of stepping into the hole. (Mikula v. Slavin Tailors, 24 Ohio St.2d 48, 263 N.E.2d 316, followed.)

3. A tenant, who knowingly and deliberately ventures onto a hazardous area which is covered with a natural accumulation of ice and snow, assumes the risk of any resulting injuries.

Mr. Leonard DeAmiches and Mrs. Josephine DeAmiches, husband and wife, were the upstairs tenants of a two-family house owned by the landlord, Emma Popczun, defendant herein, with the right to park an automobile in the garage at the rear of the property and the right to the common use of the concrete driveway adjacent to the house. Mrs. DeAmiches had worked the evening of March 24, 1965, and returned to her home at about 2:00 a. m. March 25, 1965. She parked her automobile in the garage and proceeded to walk down the driveway to enter the front of her dwelling. It is conceded by all parties that the weather had been particularly bitter for a few days preceding the events herein. Snow covered ice on the driveway early that morning. Both snow and ice covered a hole in the driveway which had existed for more than a year prior to the date of the injuries, which condition was known to the parties. The hole was located close to the house and near a downspout attached to the house. Mrs. DeAmiches walked close to the house until she reached the area near the hole. In attempting to go around the hole, she slipped on the ice, her heel struck the hole, and she fell, extensively fracturing her left ankle. She brought suit in the Cleveland Municipal Court for her injuries. Mr. DeAmiches also filed suit in the same court to recover his losses due to his wife's injuries. Answers were filed, alleging negligence on the part of Mrs. DeAmiches, to which replies were filed.

Both cases were consolidated for trial, which commenced on February 17, 1971. At the close of the opening statement of counsel for plaintiffs, the court, upon defendant's motion, entered judgment for the defendant.

Upon appeal to the Court of Appeals, the judgment of the lower court was reversed. The cause is now before this court pursuant to the allowance of a motion to certify the record.

Payer, Bleiweiss & Crow and Eugene Bleiweiss, Cleveland, for appellees.

Arter & Hadden and Harry T. Quick, Cleveland, for appellant.

CELEBREZZE, Justice.

The ultimate question for resolution in this case is whether the trial court acted properly in granting defendant's motion for judgment at the close of the plaintiffs' opening statement.

Both the pleadings and the opening statement disclose the condition of the driveway, at the time in question, as being icy and covered with snow. They also carefully set forth the proposition that the cause of the injuries sustained by the plaintiff was the attempt on her part to go around a hole in the concrete driveway.

The remarks of plaintiffs' counsel in his opening statement are as follows:

'* * * She (Mrs. DeAmiches) walked down the driveway and she was aware of the presence of the snow. You couldn't help but see snow there, and she was proceeding with due caution and she walked reasonably close to that building or house so that if necessary, she could brace herself against it, as she walked.

'When she reached a point near where the hole was the hole was covered up with snow at this time, she nevertheless, being aware where that hole was, intended to go around the hole and avoid it, and that was her intention, and she proceeded carefully to do so and she went a little wider as she approached the area where the hole was.

'She testified that she was intending to go eight inches or more to the outside of that hole, but as she was doing so and before she reached that point, she put her left foot down and she was wearing women's boots-in other words, the kind where they wear no shoes underneath them, one of those boots with a relatively low heel, a low or medium type heel, and as she put her left foot down, there apparently was an icy condition under the snow and her left foot went out from under her and went towards the hole.

'The toe did not get caught, but the heel went into the hole and that threw her off balance. Up to that time, even though her foot was slipping, she had balance. The thing that caused her to lose her balance was the hole and not the slip. * * *'

Those statements can hardly be interpreted in any way other than an acknowledgement of the plaintiff's realization of the imminently dangerous situation. The accepted basis of liability in such a circumstance is usually held to be the landlord's superior knowledge of the existing danger or perils. When such perilous conditions are known to the landlord, and are not known to the person injured, then liability may be established and recovery permitted. See Englehardt v. Phillips (1939), 136 Ohio St. 73, 23 N.E.2d 829.

Schneider, J., citing Debie v. Cochran (1967), 11 Ohio St.2d 38, 227 N.E.2d 603, stated the rule clearly and concisely in Mikula v. Slavin Tailors (1970), 24 Ohio St.2d 48, at page 56, 263 N.E.2d 316, at page 322, as follows:

'We bottomed that rule of non-liability of the property owner for the condition of his premises upon his lack of imputed superior knowledge of that condition. To the extent that a business invitee and the owner of the premises have equal knowledge of the usual dangers resulting solely from natural accumulations of ice and snow, the latter cannot be charged with actionable negligence with regard to such dangers.'

In Prosser, Law of Torts (3 Ed.), 403, it is stated:

'* * * in the usual case, there is no obligation to protect the invitee against dangers which are known to him, or which are so obvious and apparent to him that he may reasonably be expected to discover them. Against such conditions it may normally be expected that the visitor will protect himself. * * *'

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