Debie v. Cochran Pharmacy-Berwick, Inc.

• Decision Date: 28 June 1967
• Docket Number: No. 40671,INC,PHARMACY-BERWIC,40671
• Citation: 11 Ohio St.2d 38,40 O.O. 2d 52,227 N.E.2d 603
• Parties: , 40 O.O.2d 52 DEBIE et al., Appellants, v. COCHRAN, et al., Appellees.
• Court: Ohio Supreme Court

Page 38

11 Ohio St.2d 38

227 N.E.2d 603, 40 O.O.2d 52

DEBIE et al., Appellants, v. COCHRAN PHARMACY-BERWICK, INC., et al., Appellees.

No. 40671.

Supreme Court of Ohio.

June 28, 1967.

Syllabus by the Court

1. Where the owner or occupier of business premises is not shown to have notice, actual or implied, that the natural accumulation of snow and ice on his premises has created there a condition substantially more dangerous to his business invitees than they should have anticipated by reason of their knowledge of conditions prevailing generally in the area, there is a failure of proof of actionable negligence.

2. The mere fact standing alone that the owner or occupier has failed to remove natural accumulations of snow and ice from private walks on his business premises for an unreasonable time does not give rise to an action by a business invitee who claims damages for injuries occasioned by a fall thereon.

This is an action brought by a husband and wife for damages for personal injuries to the wife and loss of services for the husband.

The wife, who, along with her husband, will be referred to herein as plaintiffs, sustained serious personal injuries when she slipped and fell on snow and ice on a private outside sidewalk adjacent to a pharmacy operated by defendant-appellee Cochran Pharmacy-Berwick, Inc., in a building owned by defendant-appellee Berwick Land Associates. Defendant-appellees will be referred to herein as defendants.

In their petition plaintiffs allege:

'5. Plaintiffs say that for several days previous to January 5, 1964, snow and ice had accumulated upon the surface of said sidewalk and parking lot adjacent to premises of defendant, Cochran Pharmacy-Berwick, Inc., causing the same to be slippery; that said sidewalk was made more slippery and hazardous for pedestrian traffic by virtue of its constant use by defendants, their agents, employees, customers and invitees; that defendants knew of the slippery and hazardous nature of said sidewalk or, by the exercise of due care, should have known of same; that defendants failed to remove said snow and ice so as to make said sidewalk safe for persons using same and that said unsafe condition existed for several days prior to and including January 15, 1964; that ice had formed on said sidewalk as a result of defendant's failure to remove the snow and as a result of the use of said sidewalk as aforesaid.

'6. Plaintiffs say that on or about January 15, 1964, in the evening, plaintiff, Mary J. Debie, was a customer upon said shopping center premises; that she entered the storeroom of defendant, Cochran Pharmacy-Berwick, Inc., and purchased and paid for articles being sold therein by said defendant; that upon leaving said storeroom it was necessary for her to walk over the aforementioned sidewalk adjacent to premises of defendant, Cochran Pharmacy-Berwick, Inc., and she did so; that when she had proceeded several steps from the door of said storeroom she slipped and fell on said snow and ice, causing her to fall and sustain the injuries described * * *.'

Defendants filed a motion for summary judgment in the trial court, supported by a deposition taken of the plaintiffs. The court granted the motion, finding no 'germane issue of fact,' and entered judgment for defendants.

The Court of Appeals affirmed the judgment (8 Ohio App.2d 275, 221 N.E.2d 716) but found its judgment to be in conflict with a judgment upon the same question by the Court of Appeals for Hancock County in the case of Rainey v. Harshbarger, 7 Ohio App.2d 260, 220 N.E.2d 359, and certified the record to this court for review and final determination.

Carl B. Mellman, Columbus, for appellants.

Vorys, Sater, Seymour & Pease, Edgar A. Strause, Thomas M. Taggart, Caren, Lane, Huggard, Alton & Horst and Collis Gundy Lane, Columbus, for appellees.

PAUL W. BROWN, Judge.

The question presented is whether defendants owned a duty to plaintiff wife, a business invitee, to remove natural accumulations for snow and ice from the sidewalk.

An examination of cases involving falls on natural accumulations of snow and ice on public sidewalks is helpful but not dispositive of the case before us. The general rule governing those cases is that the owner of occupier owes no duty to keep the public sidewalk free from natural accumulations of snow and ice. Annotation, 82 A.L.R.2d 998; 27 Ohio Jurisprudence 2d 401, Highways and Streets, Section 297.

Here, the defendants are the owners and operators of a store in a privately owned shopping center. The duty that a storeowner owes his customer was stated in paragraph one of the syllabus in Boles v. Montgomery Ward & Co., 153 Ohio St. 381, 92 N.E.2d 9:

'The owner or operator of a store who invites the public into his premises to transact business is not an insurer of their safety, but owes the duty to exercise ordinary care to maintain his premises in a reasonably safe condition for the protection of such invitees.'

This rule ordinary care is applicable to a shopping center and the owner must exercise ordinary care to keep abutting sidewalks in a reasonably safe condition. Bruno v. Pendleton Realty Co., 240 S.C. 46, 50, 124 S.E.2d 580, 95 A.L.R.2d 1333.

Although the owner or operator owes this duty of ordinary care, 'the liability of an owner or occupant to an invitee for negligence in failing to render the premises reasonably safe for the invitee, or in failing to warn him of dangers thereon, must be...