Hartman v. Di Lello

• Decision Date: 25 March 1959
• Citation: 157 N.E.2d 127,109 Ohio App. 387
• Parties: , 80 Ohio Law Abs. 481, 11 O.O.2d 255 Joseph A. HARTMAN, Plaintiff-Appellee, v. Joseph DI LELLO, Defendant-Appellant.
• Court: Ohio Court of Appeals

Page 387

109 Ohio App. 387

157 N.E.2d 127, 80 Ohio Law Abs. 481, 11 O.O.2d 255

Joseph A. HARTMAN, Plaintiff-Appellee, v. Joseph DI LELLO, Defendant-Appellant.

Court of Appeals of Ohio, Cuyahoga County.

March 25, 1959.

John M. Drain, Cleveland, for plaintiff-appellee.

McConnell, Blackmore, Cory, Burke, Cleveland, for defendant-appellant.

HUNSICKER, Judge.

In this appeal on questions of law, Joseph A. Hartman recovered a verdict at the hands of a jury, upon which a judgment was then rendered, against Joseph Di Lello, the appellant in this cause.

Mr. Hartman entered the barroom, or tavern, owned by Mr. Di Lello in the afternoon of June 24, 1955, at about 3:30 p. m., and walked toward the rear of the room in the direction of a telephone booth. His purpose was, as stated by him, to call his employer. The barroom was about 30 to 35 feet long and 25 feet wide, with a bar on the north side extending from the entrance almost to the end of the room. At the end of the bar, and almost in a direct line with it, was a trap door to a basement used by Mr. Di Lello and the tenants who lived above the tavern.

Mr. Hartman did not look at the floor, but said he looked toward the phone booth to see if it was occupied. He knew of the trap door and that it provided an entrance to storage space under the barroom. Earlier in the day, about 11:30 a. m., or a little later, Mr. Hartman had entered the barroom to buy a glass of beer and to use the telephone. During this time, to accommodate a tenant of the building, he went down the stairway, onto which the trap door opened, for the purpose of attempting to replace a fuse in the electrict circuit. After he entered the storage space through this trap door, the trap door was closed, and remained closed until he came back into the barroom. He said that, after he came out of the storage room, the trap door was again closed.

At the time Mr. Hartman was approaching the phone booth, the trap door, which measured 33 1/2 inches wide and 52 1/4 inches long, was in an opened position. Mr. Hartman fell through the open trap door, down the steps, into the basement. He claims that this fall caused him severe injuries.

Mr. Hartman said that his eyesight was good, and that if he had looked down he could have seen the opened trap door. He further said there was nothing about the trap door that was not open, obvious and apparent.

The trial court, upon application of counsel for Mr. Di Lello, withdrew from the consideration by the jury all specifications of negligence except the claim that 'the area immediately in the vicinity of the open trap door was not properly lighted, thus creating a hazard to the plaintiff which defendant knew or in the exercise of ordinary care should have known.'

After the judgment was entered for Mr. Hartman, Mr. Di Lello perfected an appeal to this court, saying that '1. The court erred in failing to grant defendant a directed verdict at the conclusion of all the evidence.

'2. The court erred in failing to grant defendant's motion for judgment notwithstanding the verdict.'

Counsel for Mr. Di Lello insist that: there was no common-law duty to light the area of the open trap door; reasonable minds could come to no other conclusion than that the area of the open trap door was adequately lighted; and, Mr. Hartman was guilty of negligence as a matter of law.

Mr. Hartman was an invitee and hence was entitled to the rights and duties devolving upon invitees. He was also known as a business visitor. See: Scheibel v. Lipton, 156 Ohio St. 308, 102 N.E.2d 453; 2 Restatement of Law of Torts (Negligence), Sec. 332, at p. 897.

The duty thus owed to Mr. Hartman by Mr. Di Lello was to 'exercise ordinary care to guard * * * (Mr. Hartman) against danger, and to that end he (Mr. Di Lello) * * *' was obliged to 'exercise ordinary care to render the premises reasonably safe for' him. Cincinnati Base Ball Club Co. v. Eno, 112 Ohio St. 175, 147 N.E. 86, approved and followed in Gedra v. Dallmer Co., 153 Ohio St. 258, at page 262, 91 N.E.2d 256, at page 259, 17 A.L.R.2d 453.

The only specific duty devolving upon Mr. Di Lello which the court submitted to the jury was the failure to properly light the area in the immediated vicinity of the trap door, which failure to provide adequate lighting it is claimed thereby created a hazard for Mr. Hartman, an invitee or business visitor on the premises. The providing of adequate light in the area of the trap door was to bring notice of the...