Jeswald v. Hutt

• Decision Date: 17 July 1968
• Docket Number: No. 41355,41355
• Citation: 239 N.E.2d 37,15 Ohio St.2d 224,44 O.O.2d 196
• Parties: , 44 O.O.2d 196 JESWALD, Appellee, v. HUTT et al., Appellants.
• Court: Ohio Supreme Court

Page 224

15 Ohio St.2d 224

239 N.E.2d 37, 44 O.O.2d 196

JESWALD, Appellee, v. HUTT et al., Appellants.

No. 41355.

Supreme Court of Ohio.

July 17, 1968.

Syllabus by the Court

1. One who maintains a private motor vehicle parking area, for the accommodation of those he serves in a professional or business way, is generally under no legal obligation to illuminate the same at night or to remove a natural accumulation of snow and ice therefrom.

2. Generally, no liability exists for minor imperfections in the surface of such a parking area-those slight irregularities reasonably to be anticipated in any traveled surface.

3. 'Darkness' is always a warning of danger, and for one's own protection it may not be disregarded.

4. An invitee who, in darkness and with knowledge that a private motor vehicle parking area is covered with a natural accumulation of ice and snow, ventures onto such area and slips or trips and falls, either assumes the risk of such misfortune, or, if the one maintaining such area may be charged with any negligence in its maintenance, the one who falls, in the circumstances described, is also chargeable with negligence which is a direct contributing cause of the fall.

Frances Jeswald instituted this action in the Court of Common Pleas of Mahoning County against H. Bryan Hutt, wilfred B. Dodgson and Kenneth J. Hovanic, medical doctors engaged as partners in the practice of pediatrics, to recover damages for personal injuries she claims to have suffered when she slipped or tripped and fell in a paved motor vehicle parking area covered with a natural accumulation of frozen slush, which area was maintained by defendants at the rear of the office building they occupied in the city of Youngstown.

Such claimed injuries occurred in the early evening of January 7, 1963, and are alleged to have been proximately and directly caused by the negligence of the defendants in the following respects: Failure to provide lighting facilities, failure to clean the parking area of the accumulated ice and snow, and by allowing a 'hump' to be and remain in such parking area. Plaintiff alleges that by the combination of such derelictions she was caused to fall.

After express admissions and denials as to certain allegations of the petition, the answer closes with a general denial.

Plaintiff recovered a verdict and judgment for $10,000, but defendants' motion for judgment notwithstanding the verdict was sustained. Plaintiff appealed such adverse judgment to the Court of Appeals on questions of law, where, by a divided vote of the judges, the judgment below was reversed and final judgment was rendered for the plaintiff.

Allowance of the motion to require the Court of Appeals to certify the record brings the cause here for decision on the merits.

Bernard J. Wilkes and Daniel L. Rossi, Youngstown, for appellee.

Manchester, Bennett, Powers & Ullman, Youngstown, and John H. Ranz, Cincinnati, for appellants.

ZIMMERMAN, Judge.

The evidence shows that in the late afternoon of January 7, 1963, plaintiff, a widow in her fifties, her daughter-in-law and the latter's six-month-old daughter paid a professional visit to one of the defendants, Dr. Hovanic, for treatment of the infant. They left the doctor's office by the rear door of the building at about 6 p. m. It was then dark, and the parking area where they had left their automobile was covered with frozen slush-the freezing having occurred during the time they were in the doctor's office. Plaintiff was immediately aware of the darkness and that an extremely slippery condition existed. She testified that 'it was real slippery, no lights, pitch dark, you couldn't see your hand in front of you.' With the infant in her arms and her daughter-in-law walking beside her, plaintiff slipped or tripped and fell as she neared the automobile.

On direct examination, plaintiff testified:

'* * * and all at once I hit something and I went down * * *. When I tried to get up, I couldn't, and I touched the hump, or whatever was there.'

According to two photographs introduced in evidence as exhibits and testimony relating to the subject, the so-called 'hump' consisted of a low crown or ridge extending across the joinder of an older and newer part of the parking lot, at the termination of a slight upgrade. It was the kind of condition which comes within the classification of a 'minor imperfection'-one reasonably to be anticipated on a traveled surface, and for the existence of which there is ordinarily no liability. Helms v. James Dickey Post No. 23, American Legion, Inc., 5 Ohio St.2d 60, 213 N.E.2d 734. Attention is also directed to the Ohio cases collected and commented upon by Taft, C. J., in his dissenting opinion in Smith v. United Properties, Inc., 2 Ohio St.2d 310, 209 N.E.2d 142.

It was elicited from plaintiff upon cross-examination that she did not notice or discover any underfoot unevenness until after she fell.

The dissenting judge in the Court of Appeals remarked in his opinion:

'A review of the testimony and defendants' exhibits No. 1 and No. 2 (the photographs) convinces me that the defendants were not negligent in the claimed respects. The testimony as to the 'lump' in the parking lot does not establish that such 'lump' (or 'hump,' as it is so referred to by co...