Gladon v. Greater Cleveland Regional Transit Auth.

Decision Date06 March 1996
Docket NumberNo. 94-1063,94-1063
Citation75 Ohio St.3d 312,662 N.E.2d 287
PartiesGLADON, Appellee and Cross-Appellant, v. GREATER CLEVELAND REGIONAL TRANSIT AUTHORITY, Appellant and Cross-Appellee.
CourtOhio Supreme Court

Donald E. Caravona & Associates, Donald E. Caravona and Michael W. Czack, Cleveland, for appellee and cross-appellant.

Ulmer & Berne, F. Thomas Vickers and James A. Vollins, Cleveland, for appellant and cross-appellee.

Wanda Rembert Arnold and Inajo T. Davis, Cleveland, urging reversal for amicus curiae, Cleveland Board of Education.

John E. Gotherman, Columbus and Malcolm C. Douglas, Cleveland, urging reversal for amici curiae, Ohio Municipal League, Ohio Municipal Attorneys Association, and Ohio Municipal Joint Self-Insurance Pool.

R. Todd Hunt, Cleveland, urging reversal for amici curiae, Ohio Township Association and Cuyahoga County Law Directors Association.

Malcolm C. Douglas, Ronald J. O'Brien, Columbus City Attorney, Sharon Sobol Jordan, Cleveland Director of Law, Faye D. Dupuis, Cincinnati City Solicitor, John H. Mattimoe, Toledo Director of Law, Mark S. Schmollinger, Toledo General Counsel, J. Anthony Sawyer, Dayton Director of Law, and

Michael E. Murman, Lakewood Director of Law, urging reversal for amici curiae, cities of Columbus, Cleveland, Cincinnati, Toledo, Dayton, and Lakewood, Ohio.

Maribeth Deavers, Cleveland, and D. Allen Asbury, urging reversal for amicus curiae, Central Ohio Transit Authority.

Rosplock, Curlson, Perez, Deeb & Ezzone and Donald J. Ezzone, Willoughby, urging reversal for amicus curiae, Laketran Regional Transit Authority.

Kitchen Deery & Barnhouse, Vincent A. Feudo, Eugene B. Meador and William F. Schmitz, Cleveland, urging reversal for amicus curiae, Ohio Risk Management Association.

Means, Bichimer, Burkholder & Baker Co., L.P.A., and Kimball H. Carey, Columbus, urging reversal for amicus curiae, Ohio School Boards Association.

Peck, Shaffer & Williams and Thomas A. Luebbers, Cincinnati, urging reversal for amicus curiae, County Commissioners Association of Ohio.

Mark W. Ruf, Akron, urging affirmance for amicus curiae, Ohio Academy of Trial Lawyers.

COOK, Justice.

Because we find another issue dispositive of this appeal, we fail to reach the substantial constitutional question regarding R.C. 2744.05(C) that we otherwise would have reached. 1 We determine that the trial court erred in instructing the jury about plaintiff's legal status and RTA's corresponding duty. The trial court instructed the jury "as a matter of law that * * * the plaintiff was an invitee," and that as a result RTA was "required to use ordinary care to discover and to avoid danger." The trial court did not give the instruction that prior to discovering Gladon, RTA was obliged to refrain from willful and wanton conduct which was likely to injure Gladon. Given the evidence presented in the trial of this case, the erroneous instruction was prejudicial. Accordingly, we reverse the judgment of the trial court and remand the cause for a new trial.


Ohio adheres to the common-law classifications of invitee, licensee, and trespasser in cases of premises liability. Shump v. First Continental-Robinwood Assoc. (1994), 71 Ohio St.3d 414, 417, 644 N.E.2d 291, 294; Boydston v. Norfolk S. Corp. (1991), 73 Ohio App.3d 727, 733, 598 N.E.2d 171, 175. Although there was a movement in many jurisdictions in the 1970s to abolish these traditional duty classification schemes, it quite abruptly lost its steam late in that decade. Prosser & Keaton, Law of Torts (5 Ed.1984) 433, Section 62. Prosser hypothesizes that the retreat may reflect a "fundamental dissatisfaction with certain developments in accident law that accelerated during the 1960s--the reduction of whole systems of legal principles to a single, perhaps simplistic, standard of reasonable care, the sometimes blind subordination of other legitimate social objectives to the goals of accident prevention and compensation, and the commensurate shifting of the decisional balance of power to the jury from the judge. At least it appears that the courts are gaining a renewed appreciation for the considerations behind the traditional duty limitations toward trespassing adults, and that they are acquiring more generally a healthy skepticism toward invitations to jettison years of developed jurisprudence in favor of a beguiling legal panacea." Id. at 433-434.

In Ohio, the status of the person who enters upon the land of another (i.e., trespasser, licensee, or invitee) continues to define the scope of the legal duty that the landowner owes the entrant. Shump, 71 Ohio St.3d at 417, 644 N.E.2d at 294. Invitees are persons who rightfully come upon the premises of another by invitation, express or implied, for some purpose which is beneficial to the owner. Light v. Ohio Univ. (1986), 28 Ohio St.3d 66, 68, 28 OBR 165, 167, 502 N.E.2d 611, 613; Scheibel v. Lipton (1951), 156 Ohio St. 308, 46 O.O. 177, 102 N.E.2d 453, paragraph one of the syllabus.

The status of an invitee is not absolute but is limited by the landowner's invitation. " * * * [T]he visitor has the status of an invitee only while he is on the part of the land to which his invitation extends--or in other words, the part of the land upon which the possessor gives him reason to believe that his presence is desired for the purpose for which he has come.

" * * *

"If the invitee goes outside of the area of his invitation, he becomes a trespasser or a licensee, depending upon whether he goes there without the consent of the possessor, or with such consent." 2 Restatement of the Law 2d, Torts (1965) 181-182, Section 332, Comment l In the present case, Gladon was an invitee when he purchased an RTA ticket, rode the rapid transit train and waited at RTA's platform. However, RTA's invitation to Gladon to use its premises did not extend to the area on or near the tracks. In fact, Gladon acknowledged that RTA did not permit the public in the area on or near the tracks.

Although the result seems harsh, the common law on this subject is well grounded and we are not inclined to reject it. Accordingly, we hold that where an entrant upon another's land exceeds the scope of the landowner's invitation, the entrant will lose the status of an invitee, and become either a licensee or trespasser. See Clary v. McDonald (1963), 120 Ohio App. 8, 11, 28 O.O.2d 169, 171, 200 N.E.2d 805, 808; Sweet v. Clare-Mar Camp, Inc. (1987), 38 Ohio App.3d 6, 9, 526 N.E.2d 74, 78. See, also, Restatement of Torts 2d, supra Section 332, Comment l.

Gladon contends that he retained his invitee status because there was no evidence that he "intentionally or purposely entered upon the track area." According to the Restatement, "so far as the liability of the possessor of the land to the intruder is concerned, however, the possessor's duty, and liability, will be the same regardless of the manner of entry, so long as the entry itself is not privileged." Restatement of Torts 2d, 171-172, supra, Section 329, Comment c.

In determining whether the person is a trespasser within the meaning of this section, the question whether his entry has been intentional, negligent or purely accidental is not material, except as it may bear on the existence of a privilege. Id. at 171. Without the consent or privilege to enter the area of the tracks, the law views such entry from the aspect of the landowner whose duties to the entrant flow from the parameters of his permission to be there. As a result, "the determining fact is the presence or absence of a privilege to enter or to remain on the land, and the status of an accidental trespasser is still that of a trespasser." Id. at 172.

The illustration employed by the Restatement to explain the duties owed to a trespasser is remarkably similar to Gladon's situation. "Without any negligence on his part A, standing on the platform of a subway station of the X Company, slips and falls onto the tracks. While there he is run over by the train of X Company, and injured. A is a trespasser, and the liability to him is determined by the rules stated in sections 333 and 336, notwithstanding the accidental character of his intrusion." Id. at 171, Illustration 1. 2

Furthermore, whether Gladon was privileged to enter the tracks is immaterial. A person privileged to enter the land is owed the same duties as a licensee. Restatement of Torts 2d, supra, at Section 345. Because the duties owed to a licensee and trespasser are the same, whether Gladon was privileged to enter the land does not change the standard of care RTA owed to him. Soles v. Ohio Edison Co. (1945), 144 Ohio St. 373, 29 O.O. 559, 59 N.E.2d 138, paragraph one of the syllabus.

Even though his entry may have been unintentional and against Gladon's wishes, once on the tracks, Gladon exceeded the scope of his invitation and lost his status as an invitee. Because Gladon then became either a licensee or a trespasser for purposes of determining the duty RTA owed to him, the trial court erred in instructing the jury that he was an invitee as a matter of law.

We now turn to the duty owed to Gladon by RTA as a result of Gladon's change in status from invitee to either licensee or trespasser. A landowner owes a duty to an invitee to exercise ordinary care for the invitee's safety and protection. Light, 28 Ohio St.3d at 68, 28 OBR at 167, 502 N.E.2d at 613. Conversely, a landowner owes no duty to a licensee or trespasser except to refrain from willful, wanton or reckless conduct which is likely to injure him. Soles, 144 Ohio St. 373, 29 O.O. 559, 59 N.E.2d 138, at paragraph one of the syllabus. See, also, Provencher v. Ohio Dept. of Transp. (1990), 49 Ohio St.3d 265, 266, 551 N.E.2d 1257, 1258; McKinney v. Hartz & Restle Realtors, Inc. (1987), 31 Ohio St.3d 244, 246, 31 OBR 449, 450-451, 510 N.E.2d 386, 388; Brooks v. Norfolk & W. Ry. Co. (1976), 45 Ohio St.2d 34, 74 O.O.2d 53, 340...

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