Kelly Provencher v. Ohio Department of Transportation

• Decision Date: 06 October 1988
• Docket Number: 88AP-225,88-LW-3455
• Parties: Kelly PROVENCHER et al., Plaintiffs-Appellants, v. OHIO DEPARTMENT OF TRANSPORTATION, Defendant-Appellee.
• Court: Ohio Court of Appeals

Kelly PROVENCHER et al Plaintiffs-Appellants, v. OHIO DEPARTMENT OF TRANSPORTATION Defendant-Appellee.

No. 88AP-225. Judgment reversed, 49 Ohio St. 3d 265 (1990).

88-LW-3455 (10th)

Court of Appeals of Ohio, Tenth District Franklin.

October 6, 1988

Appeal from the Ohio Court of Claims.

Sindell Rubenstein, Einbund, Pavlik, Novak & Celebrezze, Lewis Einbund and Terry A. Bryer, for appellants.

Anthony J. Celebrezze, Jr., Attorney General, and David C. Calderhead, for appellee.

OPINION

McCORMAC Judge.

On June 6, 1985, plaintiff-appellant, Kelly Provencher, fell and fractured her right ankle while descending stairs at a rest area along State Route 23 in Waverly, Ohio. The Ohio Department of Transportation, defendant-appellee, owns, operates, and maintains the rest area.

In April 1986, Mrs. Provencher and her husband filed a complaint in the Ohio Court of Claims against the Ohio Department of Transportation. They alleged that defendant had negligently maintained the steps. The complaint sought judgment against defendant for Provencher's injuries incurred due to her fall and for her husband's loss of services and consortium.

On February 24, 1988, the Court of Claims found that Provencher was in the position of a licensee at the time of her fall and that defendant only owed her a duty to refrain from wanton or willful misconduct. The court granted defendant's motion to dismiss plaintiffs' complaint for failure to state a claim upon which relief may be granted. Plaintiffs appeal, asserting that the trial court erred in holding that defendant owed plaintiffs no duty beyond refraining from willful or wanton misconduct.

The issue is whether Provencher's status at the time of the accident was that of a licensee or an invitee. A prerequisite to resolving this issue is establishing the definition of a licensee and an invitee. This court adopts the definition of licensee and invitee as set forth in the Restatement of the Law 2d, Torts (1965) 176, Sections 330 and 332. Section 330 defines "licensee" as "[a] person who is privileged to enter or remain on land only by virtue of the possessor's consent."

Section 332 defines "invitee" as:

"(1) * * * [E]ither a public invitee or a business visitor.

"(2) A public invitee is a person who is invited to enter or 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 business dealings with the possessor of the land."

We are not persuaded by defendant's assertion that an individual may not be an invitee unless he is a business visitor. The Ohio Supreme Court has defined a business visitor as "one rightfully on the premises of another for purposes in which the possessor of the premises has a beneficial interest." Scheibel v. Lipton (1951), 156 Ohio St. 308, 328. This definition of business visitor is the same as the economic benefit test used to determine whether or not an individual is an invitee. Application of this limited definition of an invitee has the potential to result in illogical decisions. The realities of the case before us exemplify this potential. Political subdivisions are required to keep highways "open, in repair, and free from nuisance." R.C. 2744.02(B)(3). Logic dictates that a comparable duty of care should extend to highway travelers who use the rest area facilities along the highways. The duty of care changes dramatically if the traveler using a rest area were designated a licensee. The owner of a premise only owes a licensee the duty to refrain from "wantonly or willfully causing injury." Light v. Ohio University (1986), 28 Ohio St.3d 66, 68. It should not be necessary to find that a traveler using a rest area benefits the state when common sense and justice support applying the duty of care owed an invitee regardless of whether or not the state receives a benefit. The owner of a premise owes an invitee the duty to exercise ordinary care in maintaining the premises in a safe condition. Id. Application of the Restatement's provision of invitee status for both public invitees and business visitors more properly furthers the interests of justice than does exclusive application of the economic benefit standard. Under the Restatement, a possessor of land owes the duty of ordinary care to both public invitees and business visitors.

We are not alone in our conviction that the Restatement's definition of invitee provides the proper standard for determining whether an individual is an invitee. The legal debate over "economic benefit" or "public invitation" as the proper standard for determining the status of licensee received attention in Annotation (1964), 95 A.L.R. 2d 986. The annotation notes the trend among legal writers and courts to reject the exclusive use of economic benefit test in favor of alternatively applying the "public invitation test." The annotation explains that a public invitee was one who "comes upon the land of another under circumstances justifying the conclusion that the landowner intended to open his land to public use for the purposes for which the entrant came, * * *." Id. at 999.

In the Law of Torts (1984), Prosser and Keaton discuss the conflict between the economic benefit and the invitation [comparable to economic benefit] definitions of invitee. Id. at 420, 422. The authors explain that the invitation theory assigns a duty of reasonable care to those who encourage others to enter the premises. Id. at 422. They also note that a "large number" of courts now accept the invitation theory and that the Restatement's inclusion of a public invitee classification was a response to a "spate of authority" which recognized the status of public invitees. Id. at 424.

Included in the list of jurisdictions that follow the Restatement's definition of licensee are Florida and California. In 1972, the Florida Supreme Court rejected Florida's economic benefit test for establishing invitee status in favor of the Restatement's definition of invitee. The court observed that "the Second Restatement of Tort's invitation test, * * * is preferable to the exclusive use of the mutual benefit test * * *. And we feel we are adopting the more realistic of the two views. The licensee status of the social guest in the home remains unchanged as does the status of the trespasser * * *." Post v. Lunney (Fla.1972), 261 So.2d 146, 148-149.

In 1966, California's Supreme Court officially adopted the Section 332 definition of "invitee":

" * * * "We do not adopt the broader rule merely because it represents a "modern trend." We follow it because we believe it best expresses the principles of justice and reasonableness upon which our law of torts is founded.' "

O'Keefe v. South End Rowing Club (Cal.1966), 51 Cal.Rptr. 534; 414 P.2d 830, 836, quoting Dowd v. Portsmouth Hosp. (N.H.1963), 193 A.2d 788, 792.

Defendant's argument brief in support of the Court of Claims' decision that Provencher was a licensee is unpersuasive. The Ohio Supreme Court's definitions of licensee and invitee as set forth in Light v. Ohio University, supra, are not inconsistent with the Restatement's definitions. In Light, the appellate court found appellees to be business visitors and therefore invitees. Id. at 67. In Light, the Supreme Court referred to Scheibel v. Lipton, supra, to formulate its definition of business invitee. As set forth in Light, business invitees are "persons who come upon the premises of another, by invitation, express or implied, for some purpose which is beneficial to the owner." Id. at 68. This definition of business invitee is similar to that set forth in the Restatement of the Law 2d, Torts (1965) 179, Section 332(3). In Light, the court defined licensee as "a person who enters the premises of another by permission or acquiescence, for his own pleasure or benefit, and not by invitation, * * *." Id. at 68. The...