Durst v. Van Gundy

• Decision Date: 19 October 1982
• Parties: , 8 O.B.R. 103 DURST et al., Appellants, v. VAN GUNDY et al., Appellees. *
• Court: Ohio Court of Appeals

Page 72

8 Ohio App.3d 72

455 N.E.2d 1319, 8 O.B.R. 103

DURST et al., Appellants, v. VAN GUNDY et al., Appellees. ^*

Court of Appeals of Ohio, Tenth District, Franklin County.

Oct. 19, 1982.

Syllabus by the Court

1. One invited to come upon the premises of another for the purpose of performing a specific service for the latter's benefit is an invitee. This is to be distinguished from the situation where a person enters upon premises as an invited social guest for the purpose of participating in a social occasion and, while on the premises, is injured while performing some incidental service.

2. The opinion of the Supreme Court in Scheibel v. Lipton, 156 Ohio St. 308, 102 N.E.2d 453 , and its detailing of the duties owed by a host to a social guest, were predicated upon the assumption that a social guest is not on the host's premises for purposes in which the host has a beneficial interest.

3. Although analogies, deductions, and inferences drawn from evidence in a case are a legitimate subject of argument, such argumentative devices are improper where they are not supported or warranted by the evidence.

Leonard S. Sigall and Gordon G. Hobson, Reynoldsburg, for appellants.

Crabbe, Brown, Jones, Potts & Schmidt and Kenneth E. Harris, Columbus, for appellees.

NORRIS, Judge.

Plaintiffs appeal from a judgment granted defendants following a trial by jury in the Court of Common Pleas of Franklin County.

On May 5, 1980, Winfield Durst talked by telephone with his daughter, Tina Van Gundy, concerning a security light which she had earlier asked that he assist her husband, Glen, erect at their residence. Mr. Durst went to the Van Gundy residence and, in the course of climbing the Van Gundys' ladder to take measurements, fell and was injured. Mrs. Durst joined her husband in his suit for damages against their daughter and son-in-law, seeking recovery for loss of consortium.

Mr. Durst testified that, in the course of his telephone conversation with his daughter, he asked her if she had a ladder or wanted him to bring his, and she responded that she had a ladder; that, when he arrived at the Van Gundy residence, Glen had not yet returned from work and Tina went inside to attend her crying child; that he took the extension ladder from the garage and tested it to see if it would go up and down properly and, when it did, he leaned it against the house; that he noted one rung at eye level was bent but was solid when he pulled on it; that he started up the ladder and felt the ground giving on one side and climbed down and repositioned the ladder and then started back up; that when he reached for the third rung from the top it came loose and threw him off balance, causing the ladder to slip sideways and him to fall to the driveway below; that he had not noticed anything wrong with the rung which gave way until after the accident when he noticed that it was bent; that after the accident his daughter said, " * * * she was sorry she neglected to tell [him] about the ladder"; and that Glen told him after the accident that previous to the accident he had put back a rung which had come out while he was moving the ladder.

Glen Van Gundy testified that the ladder had been given to him by his brother who told him that one of the rungs had a crack in it where it had been broken, and had shown him that rung; that he had not attempted to repair it; that he believed the rung shown him by his brother was the one which gave way when Mr. Durst reached for it; and that he had not told Mr. Durst about the broken rung.

Tina Van Gundy testified that she had asked her father to help install the security light; that she knew one of the ladder's rungs was loose, but did not warn her father of the condition; and that her father had asked her if he should bring his ladder and she responded that she had one.

Plaintiffs raise five assignments of error:

"I. The Trial Court erred in instructing the jury on the law relating to duties owed to a social guest and not instructing the jury on the duties owed a business invitee.

" * * *

"V. The Trial Court erred in not sustaining objections to prejudicial statements made by counsel for Defendants-Appellees during counsel's summation to the jury."

In their first assignment of error, plaintiffs argue that Mr. Durst was not a social guest, but was instead an invitee to whom a higher duty was owed by defendants as possessors of land upon which he had entered at their invitation for the purpose of performing services beneficial to them. The portions of the trial court's instructions to the jury which are pertinent to our resolution of this assignment of error follow:

"In order to find the defendants in this case negligent, you must find that they breached their duty to use ordinary care to avoid injuring the plaintiff; in other words, did the actions of defendants in allowing plaintiff to use their ladder constitute a failure to use the ordinary care that an ordinarily cautious and prudent person would under similar circumstances?

" * * *

"A social guest enters and remains upon the premises subject to existing conditions. He assumes the ordinary risk incident to the condition of the premises. The owner or host has a duty to exercise ordinary care not to cause injury to the guest by any act or activity while the guest is on the premises."

The instructions given by the trial court appear to be based, at least in part, upon the third paragraph of the syllabus to the Supreme Court's opinion in Scheibel v. Lipton (1951), 156 Ohio St. 308, 102 N.E.2d 453 :

"A host who invites a social guest to his premises owes the guest the duty (1) to exercise ordinary care not to cause injury to his guest by any act of the host or by any activities carried on by the host while the guest is on the premises, and (2) to warn the guest of any condition of the premises which is known to the host and which one of ordinary prudence and foresight in the position of the host should reasonably consider dangerous, if the host has reason to believe that the guest does not know and will not discover such dangerous condition."

The opinion of the Supreme Court in Scheibel, and its detailing of the duties owed by a host to a social guest, were predicated upon the assumption that a social guest is not on the host's premises for purposes in which the host has a beneficial interest. See the first paragraph of the syllabus in Scheibel v. Lipton, supra. Here, because Mr. Durst was on defendants' premises for a purpose in which defendants had a beneficial interest, he could not be regarded as a social guest. The Supreme Court's concern in Scheibel was with the view then generally prevailing in this country that a social guest was to be considered a licensee, and with the consequence that if a social guests were to be so classified in Ohio, then he would be entitled to the benefit of only the very meager duties owed by a possessor of land to a licensee. Scheibel v. Lipton, supra, at 324-325, 102 N.E.2d 453. Accordingly, the Supreme Court placed social guest in a special classification and declared the duties owing to them to fall somewhere between those owed to licensees and invitees. ¹ Scheibel v. Lipton, supra, at 328-329, 102 N.E.2d 453.

Because Mr. Durst was invited to come upon defendants' premises for the purpose of performing a specific service for their benefit, he should have been regarded by the trial court as an invitee. The facts of this case are to be distinguished from circumstances where a person enters upon premises as an invited social guest for the purpose of participating in a social occasion, and while on the premises is injured while performing some incidental service--for example, while extending the host the courtesy of assisting in washing dishes following a meal. Regarding Mr. Durst as an invitee, regardless of whether he was a "business" invitee in the sense of one who receives compensation for his services or was a close relative of the possessor of the premises, is in keeping with what appears to be the majority view in this country. See, e.g., Speece v. Browne (1964), 229 Cal.App.2d 487, 40 Cal.Rptr. 384; Brant v. Matlin (Fla.App.1965), 172 So.2d 902; Cozine v. Shuff (Ky.1964), 378 S.W.2d 635; Murdock v. Petersen (1958), 74 Nev. 363, 332 P.2d 649; Schlicht v. Thesing (1964), 25 Wis.2d 436, 130 N.W.2d 763. It is also consistent with the Supreme Court's holding in Scheibel v. Lipton, supra, since, as previously noted, the resolution of the issues presented by that case turned on the plaintiff's purpose in being upon the defendant's premises.

The possessor of premises owes a duty to an invitee to exercise ordinary or reasonable care for his safety and protection, and this includes having the premises in a reasonably safe condition and warning him of latent or concealed defects or perils ² of which the possessor has or should have knowledge. Scheibel v. Lipton, supra; Englehardt v. Philipps (1939), 136 Ohio St. 73, 23 N.E.2d 829 ; Flury v. Central Publishing House (1928), 118 Ohio St. 154, 160 N.E. 679; S.S. Kresge Co. v. Fader (1927), 116 Ohio St. 718, 158 N.E. 174.

We also note that, even had the evidence supported a conclusion that Mr. Durst was a social guest, the trial court's instructions omitted any reference to the duty of the possessor of premises to warn his social guest of dangerous conditions. Scheibel v. Lipton, supra, paragraph three of the syllabus.

Defendants contend that, even if the trial court did err in its instructions on defendants' duty to Mr. Durst, nevertheless, the error was harmless under the "two-issue rule" since the trial court's instructions on contributory negligence were free of prejudicial error and would support the jury's verdict. We reject that contention for the reasons stated by the Supreme Court...