McKinney v. Hartz & Restle Realtors, Inc.

• Decision Date: 15 July 1987
• Docket Number: No. 86-1213,86-1213
• Citation: 510 N.E.2d 386,31 Ohio St.3d 244,31 OBR 449
• Parties: , 31 O.B.R. 449 McKINNEY, a Minor, et al., Appellants, v. HARTZ & RESTLE REALTORS, INC. et al., Appellees.
• Court: Ohio Supreme Court

Page 244

31 Ohio St.3d 244

510 N.E.2d 386, 31 O.B.R. 449

McKINNEY, a Minor, et al., Appellants, v. HARTZ & RESTLE REALTORS, INC. et al., Appellees.

No. 86-1213.

Supreme Court of Ohio.

July 15, 1987.

Syllabus by the Court

1. A railroad has no duty to fence its right-of-way to prevent trespass on its tracks.

2. Generally, a landlord has no duty to erect a fence between its rental property and a railroad right-of-way.

On May 21, 1981, appellant Michael McKinney (hereinafter "Michael"), who was then four years old, was injured when he tried to jump aboard a passing train of appellee Consolidated Rail Corporation (hereinafter "Conrail"). The train tracks were located on a railroad right-of-way which abutted the apartment complex in which Michael and his mother, appellant Zanieda McKinney, resided. The complex was owned and operated by appellee Hartz & Restle Realtors, Inc. (hereinafter "H & R").

Behind the apartment buildings stretched a grass yard, on which H & R maintained a playground and a basketball court for its tenants. Testimony in the record indicates that H & R's property extended to the end of the grass yard. Between the grass yard and the railroad tracks was an area fifty to sixty feet deep covered with brush which included the railroad right-of-way. A small hill sloping down to the railroad tracks was at the end of the brush area farthest from the apartment buildings. Cutting through the brush area were several well-defined paths which were used by the tenants, both adults and children, to go from the grass yard to the railroad tracks.

On the day of his injury, Michael was in the care of a babysitter. Unaccompanied by the babysitter or any other adult, Michael and several friends walked down one of the paths through the brush area to the railroad tracks. The friends waited at the top of the hill while Michael went down to the tracks to throw rocks. A Conrail train traveling at approximately eight to ten miles an hour approached. After about five of the cars of the train had passed him, Michael attempted to grab the ladder of one of the cars and pull himself up. He lost his grip, was pulled under the wheels of the train, and sustained a serious injury necessitating the amputation of his right leg below the knee.

The Conrail train crew reported that they were keeping a careful lookout of the track ahead of them, but did not see Michael. Conrail employees had seen children in that vicinity previously, and had instructed them to leave the railroad right-of-way.

Appellants brought this personal injury action against H & R and Conrail. They alleged that H & R breached its statutory and common-law duty to the tenants to keep its outside common areas in a safe condition by its failure to install a fence or to otherwise block the paths and deny tenants access to the railroad tracks which appellants asserted constituted a dangerous condition. Appellants also alleged that a duty of ordinary care was imposed upon appellee Conrail by the "dangerous active operations" and "attractive nuisance" exceptions to the minimal duty owed to a trespasser. In the alternative, appellants claimed that Conrail engaged in willful and wanton misconduct in failing to keep a proper lookout and in failing to keep children off the tracks or warn them of the dangers.

H & R and Conrail filed separate motions for summary judgment which were both granted by the trial court. The court of appeals affirmed the decision of the trial court.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Gustin & Lawrence Co., L.P.A., and R. Lanahan Goodman, Cincinnati, for appellants.

Lindhorst & Dreidame Co., L.P.A., Thomas M. Tepe and Mark A. MacDonald, Cincinnati, for appellee Hartz & Restle Realtors, Inc.

Dinsmore & Shohl, Gary D. Bullock and Julie Furber Bissinger, Cincinnati, for appellee Consol. Rail Corp.

WRIGHT, Justice.

In considering the propriety of the trial court's grant of summary judgment to H & R and Conrail, we are mindful that Civ.R. 56(C) requires that "summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made * * *." Consequently, in reviewing a motion for summary judgment, the court must construe the evidence in the light most favorable to the opposing party. See Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 4 O.O.3d 466, 364 N.E.2d 267; Wills v. Frank Hoover Supply (1986), 26 Ohio St.3d 186, 26 OBR 160, 497 N.E.2d 1118.

One of the factors necessary to establish an actionable cause of negligence is a breach by defendant of a duty of care owed to plaintiff. Mitchell v. Cleveland Elec. Illum. Co. (1987), 30 Ohio St.3d 92, 30 OBR 295, 507 N.E.2d 352; Wills v. Frank Hoover Supply, supra. We find that the trial court did not err in holding that neither H & R nor Conrail breached any duty of care owed to plaintiff. Therefore, we affirm the decision of the court of appeals which upheld the trial court's grant of summary judgment in favor of H & R and Conrail.

I

A trespasser is one who, without express or implied authorization, invitation or inducement, enters private premises purely for his own purposes or convenience. See Allstate Fire Ins. Co. v. Singler (1968), 14 Ohio St.2d 27, 29, 43 O.O.2d 43, 44, 236 N.E.2d 79, 81. Michael's unfortunate venture onto Conrail's property was without invitation or permission. Thus, he was a trespasser on Conrail's property, and Conrail owed him only the duty of care due to trespassers.

"Ordinarily, a landowner owes no duty to undiscovered trespassers other than to refrain from injuring such trespassers by willful or wanton conduct." Elliott v. Nagy (1986), 22 Ohio St.3d 58, 60, 22 OBR 77, 78, 488 N.E.2d 853, 854; Brooks v. Norfolk & Western Ry. Co. (1976), 45 Ohio St.2d 34, 74 O.O.2d 53, 340 N.E.2d 392; see, also, Prosser & Keeton, Torts (5 Ed.1984) 397, Section 58. Willful conduct "involves an intent, purpose or design to injure." Denzer v. Terpstra (1934), 129 Ohio St. 1, 1 O.O. 303, 193 N.E. 647, paragraph two of the syllabus; see, also, Reserve Trucking Co. v. Fairchild (1934), 128 Ohio St. 519, 191 N.E. 745; Motorists Mut. Ins. Co. v. Bill (1978), 56 Ohio St.2d 258, 266, 10 O.O.3d 398, 402, 383 N.E.2d 880, 884. Wanton conduct occurs when one "fails to exercise any care whatsoever toward those to whom he owes a duty of care, and his failure occurs under circumstances in which there is great probability that harm will result * * *." Hawkins v. Ivy (1977), 50 Ohio St.2d 114, 4 O.O.3d 243, 363 N.E.2d 367, syllabus; Brooks v. Norfolk & Western Ry. Co., supra.

A railroad has no statutory or common-law duty to fence its right-of-way against trespassers. Brooks v. Norfolk & Western Ry. Co., supra, at 38, 74 O.O.2d at 55, 340 N.E.2d at 394; Lake Shore & Michigan So. Ry. Co. v. Liidtke (1904), 69 Ohio St. 384, 69 N.E. 653. Similarly, Conrail had no duty to provide watchmen or other personnel to prevent trespass. Brooks v. Norfolk & Western Ry. Co., supra. Consequently, since a railroad has no duty to fence its right-of-way to prevent trespass on its tracks, the lack of fences along Conrail's right-of-way does not constitute negligence, much less wanton or willful misconduct.

The trial court held that there was no evidence suggesting that Conrail breached its duty not to engage in willful or wanton misconduct. We agree with the court of appeals that appellants have presented no evidence to support a finding that this decision was in error. Appellants do not suggest that Conrail had the intent, purpose, or design to injure Michael; thus, Conrail's conduct could not have been willful. There was also no evidence that the train was traveling at an improper speed or that Conrail otherwise engaged in wanton misconduct. The mere fact that the crew did not see Michael, who was apparently standing near, but not on, the track upon which the Conrail train was traveling, is not sufficient, standing alone, to constitute wanton misconduct.

II

Appellants assert that the attractive nuisance or dangerous active operations doctrines imposed a higher duty of care on Conrail. Ohio has not adopted the doctrine of attractive nuisance. See Elliott v. Nagy, supra, at 60, 22 OBR at 78, 488 N.E.2d at 855. Furthermore, "[t]he overwhelming weight of authority in jurisdictions [which have adopted the attractive nuisance doctrine] * * * is that the attractive nuisance exception does not apply as a matter of law in cases where child trespassers are injured by moving trains" because a moving train is not a subtle or hidden danger and its potential for causing serious bodily injury or death to anyone in its path is readily apparent, even to young children. Holland v. Baltimore & Ohio RR. Co. (D.C.App.1981), 431 A.2d 597, 602 (en banc); see, also, Annotation (1971), 35 A.L.R.3d 9; Alston v. Baltimore & Ohio RR. Co. (D.D.C.1977), 433 F.Supp. 553; Gutirrez v. Southern Pacific Co. (1959), 174 Cal.App.2d 866, 345 P.2d 326; Seiferth v. St. Louis Southwestern Ry. Co. (C.A.7, 1966), 368 F.2d 153; Nolley v. Chicago, M., St. P. & P. RR. Co. (C.A.8, 1950), 183 F.2d 566; Smith v. Illinois Cent. RR. Co. (1952), 214 Miss. 293, 58 So.2d 812. Consequently, we decline to reconsider the doctrine of attractive nuisance in this cause.

Similarly, the dangerous instrumentality exception is not applicable. The dangerous instrumentality exception imposes upon the owner or occupier of a premises a higher duty of care to a child trespasser when such owner or occupier actively and negligently operates hazardous machinery or other apparatus, the dangerousness of which is not readily apparent to children. See Coy v. Columbus, Delaware & Marion Elec. Co. (1932), 125 Ohio St. 283, 181 N.E. 131; Wills v. Frank Hoover Supply, supra. As discussed above, a moving freight train is not a hidden...