Howard v. Rogers

• Decision Date: 02 July 1969
• Docket Number: No. 68-648,68-648
• Citation: 19 Ohio St.2d 42,249 N.E.2d 804,48 O.O.2d 52
• Parties: , 48 O.O.2d 52 HOWARD, a Minor, et al., Appellants and Cross-Appellees, v. ROGERS et al., d. b. a. Teensville, U. S. A., Appellees and Cross-Appellants.
• Court: Ohio Supreme Court

Page 42

19 Ohio St.2d 42

249 N.E.2d 804, 48 O.O.2d 52

HOWARD, a Minor, et al., Appellants and Cross-Appellees, v. ROGERS et al., d. b. a. Teensville, U. S. A., Appellees and Cross-Appellants.

No. 68-648.

Supreme Court of Ohio.

July 2, 1969.

Syllabus by the Court

1. An occupier of premises for business purposes may be subject to liability for harm caused to a business invitee by the conduct of third persons that endangers the safety of such invitee, just as such an occupier may be subject to liability for harm caused to such invitee by any dangerous condition of those premises.

2. An occupier of premises for business purposes is not an insurer of the safety of his business invitees while they are on those premises.

3. Where an occupier of premises for business purposes does not, and could not in the exercise of ordinary care, know of a danger which causes injury to his business invitee, he is not liable therefor.

4. Judicial notice can not be taken of the likelihood of fighting at a teen-age dance, especially where a substantial number of adults are present for the purpose of properly conducting, and are endeavoring to properly conduct, that dance.

This action was instituted on November 3, 1964 by the filing of a petition in the Common Pleas Court of Hamilton County to recover damages on account of injuries alleged to have been received by Jody Howard, who will be herein referred to as plaintiff, at a teen-age dance on November 9, 1963 and to recover on behalf of her father for medical expenses on account of those injuries.

The petition alleges, and the evidence discloses, that plaintiff was 15 at the time; that the dance was conducted for profit by at least two of the named defendants in a junior high school gymnasium in the town of Franklin in Warren County; that the dance had been advertised by posters; that an admission fee was charged; that plaintiff paid that fee; and that while there plaintiff was struck and injured in a fight between others which took place on the dance floor.

The evidence as to other facts is set forth in the opinion.

The jury returned a verdict of $2,650 for plaintiff and $200 for her father. The judgment rendered on that verdict was reversed by the Court of Appeals and the cause was remanded for a new trial.

The cause is now before this court on appeal from the judgment of the Court of Appeals pursuant to allowance of a motion and of a cross-motion to certify the record.

Lindhorst & Dreidame and Charles D. Heile, Cincinnati, for appellants and cross-appellees.

McIntosh & McIntosh and Bruce B. McIntosh, Cincinnati, for appellees and cross-appellants.

TAFT, Chief Justice.

The Court of Appeals advanced as the only reason for its judgment of reversal that the trial court 'failed to submit the issues of contributory negligence and/or assumption of risk to the jury.' Neither of those issues had been raised by the pleadings nor had any party surggested that they should have been submitted to the jury for consideration. Hence, we agree with counsel for both parties that the reason advanced by the Court of Appeals will not support its judgment. See Rhoades v. City of Cleveland (1952), 157 Ohio St. 107, 105 N.E.2d 2, and Oberlin v. Friedman (1965), 5 Ohio St.2d 1, 213 N.E.2d 168.

However, defendants contend that the Court of Appeals should have rendered final judgment for defendants for the reason that the trial court should have granted defendants' motion for a directed verdict which was made at the conclusion of all the evidence.

It is not even suggested that there is any evidence in the record to support the allegations of the petition that the fight involved 'was incited, promoted, instigated and allowed to commence and continue by the defendants individually' or 'through their agents and employees.' Plaintiff must necessarily rely upon the following allegations in her petition:

'* * * defendants provided no police, chaperon or other security protection for paying guests, including the plaintiff * * * to the dance sponsored by them, although, defendants knew, in the exercise of ordinary care, of the danger of the outbreak of a fight at said dance; and that, although defendants knew or, in the exercise of ordinary care, should have known of the imminence of a fight, they failed to warn the plaintiff * * * of this fact and failed to take and precaution whatsoever to protect her from it.'

The evidence discloses that defendants had at least five adults besides themselves present at the dance, including the janitor of the school, so the only complaint about security protection could be that no police or other security protection was there in addition to those adults.

Further, there is no evidence that defendants knew of the danger of the outbreak of a fight at the dance or knew of the imminence of any such fight.

The evidence as to how plaintiff was injured and as to any disturbances is very meager.

The evidence discloses without dispute that, although the dance started sometime between 7:00 and 7:30 p. m., everyone was well behaved and there were no disturbances until about 10:00 p. m.

Plaintiff testified that she was 'dancing with a bunch of friends' in a circle dance when she heard some 'rumbling' behind her; that she turned around and saw a 'big mess on the floor,' with 'people fighting' and 'legs kicking everywhere'; and that a boy of 13 whom she knew was picked up and thrown against her.

Plaintiff testified further that she knew most of the 'kids' at the dance, did not know who started the fight, but did know two of the boys in the fight.

A girl who went with plaintiff to the dance testified that she and plaintiff had just 'got through' dancing and were standing and turned around and there was a fight going on and they started to leave when plaintiff was hit. She did not know what started the fight.

There was evidence that there had been some disturbance outside the building about 10 to 15 minutes before the fight and that 12 to 15 boys and girls went outside to see what it was. One of the defendants called the police at that time but those who went out were coming back immediately after the call was made. There is no evidence as to what took place outside or that anyone seemed concerned or excited about what they had seen.

The evidence was to the effect that the subsequent fight, which resulted in plaintiff's injury, was of very short duration; that the police were called immediately; and that the dance was ended immediately after the fight.

A police officer testified that the police had been called at exactly 10:00 p. m., about something at the school. He proceeded immediately to the school, found no disturbance, and left. He testified further that, at some later unspecified time, identified by another witness as a very few minutes later, the police were again called and he returned to the school and found that 'there had been a fight inside the room where the dance was, and * * * the people were leaving' and, at the request of one of the defendants, he stood by until the building was cleared.

The evidence principally relied upon by plaintiff was testimony of defendants that they had uniformed policemen at the six or seven teen-age dances that they conducted at the Middletown Armory in...