Holdshoe v. Whinery, 40782

• Decision Date: 08 May 1968
• Docket Number: No. 40782,40782
• Parties: , 43 A.L.R.3d 943, 43 O.O.2d 240 HOLDSHOE, Appellee, v. WHINERY, d. b. a. Whinery's Landing, Appellant.
• Court: Ohio Supreme Court

Page 134

14 Ohio St.2d 134

237 N.E.2d 127, 43 A.L.R.3d 943, 43 O.O.2d 240

HOLDSHOE, Appellee, v. WHINERY, d. b. a. Whinery's Landing, Appellant.

No. 40782.

Supreme Court of Ohio.

May 8, 1968.

Syllabus by the court

1. A person who is invited to enter upon land which is held out to the public as a recreation area, and who enters and pays a rental fee for the use of a picnic table upon the land, is an invitee of the owner and occupier of the premises.

2. The owner and occupier of land is not an insurer of the safety of the patrons whom he invites on his land.

3. The owner and occupier of land, who holds out such land as a recreation area to the public and invites the public to use such land and charges a rental fee for the use of picnic tables located in such recreation area, owes a duty to such invitees to exercise ordinary care to maintain the land in a reasonably safe condition for the protection of such invitees.

4. Such an owner and occupier of land breaches his duty to invitees who are injured by the negligent acts of third persons, where such owner and occupier fails to exercise reasonable care to discover that such negligent acts of third persons are being done or are likely to be done and fails to give a warning adequate to enable such invitees to avoid harm, or fails to act to protect such invitees against such negligent acts of third parties.

This is an action to recover damages for personal injuries allegedly resulting from defendant's negligence.

According to the plaintiff's opening statement, on July 15, 1962, the plaintiff drove her car into a resort area owned by the defendant, and rented a picnic table. The plaintiff was directed to a table near the lake shore where the plaintiff's family ate a picnic lunch. Sometime during the afternoon another patron and his family rented a picnic table directly up the slope from the plaintiff's table. The other patron parked his car facing downhill in the direction of the plaintiff's table and the lake. While the plaintiff was seated at her table the car belonging to the other patron rolled down the hill, struck the plaintiff and inflicted the injuries which precipitated the instant action.

The land, comprising the defendant's six-acre recreation area, slopes downward to a lake. The land is wooded, and has been improved by the construction of picnic tables, cottages, boat docks, a pavilion, a refreshment stand and access roads.

Defendant does not provide a parking lot for the automobiles which his patrons bring onto the premises, nor does he park the vehicles or indicate where they should be parked. He does, however, permit his patrons to park on the sloping land next to their picnic tables. Defendant derives his revenue solely from renting cottages, boats and picnic tables as no charge is made for entering the area. On one previous occasion, a car rolled down the hill and damaged one of defendant's cottages.

At the close of plaintiff's opening statement, the trial court directed a verdict for the defendant. The court held that defendant owed plaintiff no duty to furnish a parking lot for his patrons and was not liable for the actions of the other patron in failing to properly secure his car when he parked it on the slope.

On appeal, the judgment for defendant, entered pursuant to the directed verdict, was reversed by the Court of Appeals and the cause was remanded for a new trial. (Holdshoe v. Whinery, 8 Ohio App.2d 305, 222 N.E.2d 435.)

The Court of Appeals held that a cause of action in plaintiff's favor existed against the defendant. The court concluded that since defendant had invited plaintiff onto the premises for a purpose beneficial to the defendant he owned the injured patron a duty to use reasonable care to make the area reasonably safe for use consistent with the invitation. By failing to provide safe and secure parking for his patrons, the Court of Appeals said that defendant had breached his duty of care which he owed the plaintiff. The court noted, however, that jury questions existed on the issues of (a) whether defendant's breach of duty proximately caused the plaintiff's injuries, and (b) whether the plaintiff had assumed the risk.

This cause is before this court upon the allowance of a motion to certify the record.

George A. Aronson and Bernard Fineman, East Liverpool, for appellee.

Pfau, Pfau & Comstock and Lawrence R. Springer, Youngstown, for appellant.

C. WILLIAM O'NEILL, Judge.

The question presented is whether the defendant owes the plaintiff a duty to warn him of the danger of injury from possible negligent acts of third parties, or to act to prevent the plaintiff from sustaining injury from such acts of third parties, where the defendant knows or should know that such acts are likely to occur. This is a question of law of first impression in Ohio.

It is undisputed that while plaintiff was at the recreation area she was an invitee. See Scheibel v. Lipton (1951), 156 Ohio St. 308, 102 N.E.2d 453; Restatement of the Law, Torts 2d, Section 332 (1965); Cf. The Occupiers' Liability Act, 5 and 6 Eliz. II, ch. 31; Payne, 'The Occupiers' Liability Act,' 21 Mod.L.Rev. 359 (1958). See, generally, 2 Harper & James, The Law of Torts, Section 27.12 (theories underlying invitee classification).

Restatement of the Law, Torts 2d, Section 332, states:

'(1) An invitee is either a public invitee or a business visitor.

'(2) A public invitee is a person who is invited to enter and remain on land as a member of the public for a purpose for which the land is held open to the public.

'(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with the business dealings with the possessor of the land.'

The classification of plaintiff as an invitee determines defendant's duty of care. As a general rule, the owner and occupier of land is not an insurer of the safety of the patrons whom he invites on his land. Rather, he owes them the duty to exercise ordinary care, consistent with the purposes of the invitation, to maintain the land in a reasonably safe condition for the protection of such invitees. S. S. Kresge Co. v. Fader (1927), 116 Ohio St. 718, 158 N.E. 174, 58 A.L.R. 132; see Boles v. Montgomery Ward & Co. (1950), 153 Ohio St. 381, 92 N.E.2d 9; Debie v. Cochran Pharmacy-Berwick, Inc. (1967), 11 Ohio St.2d 38, 227 N.E.2d 603; Englehardt v. Philipps (1939), 136 Ohio St. 73, 23 N.E.2d 829; James, Tort Liability of Occupiers of Land: Duties Owed to Licensees and Invitees, 63 Yale L.J. 605 (1954).

A breach of the duty of reasonable care can be predicated upon the actions of third parties on the land which is controlled by the owner. Restatement of the Law, Torts 2d, in Section 344, states:

'A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose for physical harm caused by the * * * negligent * * * acts of third persons * * * and by the failure of the possessor to exercise reasonable care to

'(a) discover that such acts are being done or are likely to be done, or

'(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.'

See Cunningham v. Marable (App.1947), 48 Ohio Law Abst. 614, 76 N.E.2d 739, appeal dismissed, 148 Ohio St. 276, 74 N.E.2d 256; Prosser, Torts, 364 (1964).

The comment to Section 344 of Restatement of the Law, Torts 2d, states that the 'possessor of land who holds it open to the public for entry for his business purposes is not an insurer of the safety of such visitors against the acts of third persons * * *. He is, however, under a duty to exercise reasonable care to give them protection. In many cases a warning is sufficient care if the possessor reasonably believes that it will be enough to enable the visitor to avoid the harm, or to protect himself against it. There are, however, many situations in which the possessor cannot reasonably assume that a warning will be sufficient. He is, then, required to exercise reasonable care to use such means of protection as are available, or to provide such means in advance because of the likelihood that third persons * * * may conduct themselves in a manner which will endanger the safety of the visitor.'

The defendant, as an owner and occupier of land, has a duty to use reasonable care to afford plaintiff a safe place in which to enjoy her picnic. He owes plaintiff a duty to use reasonable care to prevent the negligent acts of third parties which could harm the plaintiff where the defendant knows or should know that such acts are likely to occur.

It is intended that a line of Ohio cases supports the judgment of the trial court. Those cases are Debie v. Cochran Pharmacy-Berwick, Inc. (1967), 11 Ohio St.2d 38, 227 N.E.2d 603; Geideman v. City of Bay Village (1966), 7 Ohio St.2d 79, 218 N.E.2d 621; Beaney v. Carlson (1963), 174 Ohio St. 409, 189 N.E.2d 880.

In Debie v. Cochran Pharmacy-Berwick, Inc., supra, 11 Ohio St.2d at page 41, 227 N.E.2d at page 606, this court held:

'* * * 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.'

Several factors distinguish the Debie case from the case at bar. The overriding consideration is the procedural posture of the instant case. Here, a motion for directed verdict was granted after the plaintiff's opening statement. In Debie, a motion for summary judgment was granted after a deposition of the injured party therein had been submitted. In the instant case, no evidence whatsoever was before the trial court when the decision...