Oswald v. Jeraj
| Decision Date | 19 June 1946 |
| Docket Number | 30548. |
| Citation | 67 N.E.2d 779,146 Ohio St. 676 |
| Parties | OSWALD v. JERAJ et al. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. The owner of an apartment building who reserves possession and control of the common approaches which provide ingress to and egress from such building to and from the public sidewalk and who assumes the duty of keeping such approaches clean and free from ice and snow is required to exercise ordinary care to render such common approaches reasonably safe for use by the tenants.
2. In an action by a tenant against such owner of an apartment building, for damages for personal injury resulting from a fall on a common approach from the building to the public sidewalk, where the undisputed evidence discloses that such approach was covered with snow underlaid with patches of ice from a storm of the night before which abated prior to two a m. and the accident did not occur until more than ten hours thereafter, such facts present a jury issue as to whether the owner was guilty of negligence.
3. In an action against the owner of an apartment building for personal injuries sustained by a tenant who, during the day time, while wearing low-heeled slippers, sometimes called bedroom slippers, fell as a result of slipping on snow-covered patches of ice upon a common approach from one of the exits to the public sidewalk, knowledge of the fact that the approach was covered with snow will not preclude a recovery, as a matter of law, under the doctrine of assumed risk.
Appeal from Court of Appeals, Cuyahoga County.
Catherine Oswald (plaintiff) commenced this action in the Court of Common Pleas of Cuyahoga county against John and Mary Jeraj (defendants). The action was based on the claim that due to defendants' negligence plaintiff sustained serious personal injuries when she slipped and fell because of ice and snow upon a common approach leading from the apartment house, in which she lived, to the public sidewalk.
The evidence offered on behalf of plaintiff discloses the following factual situation:
Defendants were the owners of an apartment building, containing six apartments, located at 1243 East 89th street in the city of Cleveland, Ohio. At the front of that building were two porches and two entrances. One was used by the tenants occupying four of the apartments. The other one was used by the plaintiff and the defendants, who occupied the other two apartments which were serviced by a common approach, leading to the public sidewalk, with which we are concerned in the present case. The plaintiff and her husband had occupied the lower apartment as a tenant at will from about three to five years prior to February 7, 1943, the date when she sustained her injuries. The evidence does not disclose the exact duration of the occupancy of the upper apartment by the defendants, but does give rise to the inference that defendants had occupied that apartment for a longer period of time than plaintiff had occupied the lower apartment. There is no dispute upon the proposition that the defendants had always assumed the duty of keeping the approach to the building clean and free from ice and snow.
This common approach leading to the public sidewalk was about 12 feet in length and about six feet in width and sloped downward from the entrance to the public walk. The slope was from six to nine inches in the distance of about 12 feet. During the entire occupancy of plaintiff and her husband, the defendants at all times had kept that common approach clean and free from ice and snow. On Saturday evening, February 6 1943, plaintiff and her husband went to a party and arrived home about two a. m. Sunday morning. Some time during that night prior to their return a light snow had fallen. On Sunday morning plaintiff went to church and returned about 11:30 a. m. In going out on Saturday night and in returning from the party, as well as going to and returning from church, plaintiff had used the common approach and nothing untoward had happened. On those occasions plaintiff wore galoshes.
About noon on Sunday plaintiff received a telephone call requesting her to notify her father to report for work the next morning and shortly thereafter she saw him across the street and went out the front entrance to give him the message. When she had proceeded two or three steps from the front step of the building she fell and was injured. At that time she had on low-heeled slippers sometimes called bedroom slippers. When she fell her clothing brushed away the snow on part of the walk and she discovered small patches of ice beneath the snow. There is no claim of any structural defect in the approach. In addition to the facts related, medical testimony (not material here) was introduced as to the nature and extent of the injuries.
At the conclusion of the plaintiff's evidence the trial judge granted a motion for a directed verdict and judgment in favor of defendants and therefter overruled plaintiff's motion for a new trial.
An appeal on questions of law was perfected to the Court of Appeals where the judgment was affirmed.
The case is here for review following the allowance of motion to certify the record.
Harrison & Marshman and C. Craig Spangenberg, all of Cleveland, for appellant.
J. R. Kistner, of Cleveland, for appellees.
The single question presented by this record is whether the allegations of the petition and the evidence introduced in support thereof entitled the plaintiff to have her cause submitted to a jury.
The authorities are not in harmony on the question whether the owner of an apartment building owes a duty to the tenants thereof to remove from the common approaches thereto ice and snow caused by natural elements. In some states it is held that he does owe such a duty. See Reardon v. Shimelman, 102 Conn. 383, 128 A. 705, 39 A.L.R. 287; Thompson v. Resnik, 85 N.H. 413, 159 A. 355; Boyle v. Baldowski, 117 N.J.L. 320, 188 A. 233; Robinson v. Belmont-Buckingham Holding Co., 94 Colo. 534, 31 P.2d 918.
In others it is held that he does not owe such a duty. See Martin v. Rich, 288 Mass. 437, 193 N.E. 21, 97 A.L.R. 217; Gianpaola v. Paoli, Sup., 129 N.Y.S. 180; Boulton v. Dorrington, Adm'r, 302 Mass. 407, 19 N.E.2d 731; Rosenberg v. Chapman Nat. Bank, 126 Me. 403, 139 A. 82, 58 A.L.R. 1405; Roman v. King, 289 Mo. 641, 233 S.W. 161, 25 A.L.R. 1263; McGinley v. Alliance Trust Co., 168 Mo. 257, 66 S.W. 153, 56 L.R.A. 334, and cases cited.
However, there seems to be no great variance of opinion upon the proposition that an owner may obligate himself to perform such duty by contract either express or implied by a course of conduct. See Looney v. McLean, 129 Mass. 33, 37 Am.Rep. 295; Nash v. Webber, 204 Mass. 149, 90 N.E. 872; Caruso v. Lebowich, 251 Mass. 477, 146 N.E. 699.
Here the uncontroverted evidence discloses that the owners were in complete possession and full control of the common approaches; that for the period of several years before the accident they had assumed the duty of keeping the common approaches, which furnished ingress to and egress from the building, clear and free from ice and snow; that they kept the proper tools as well as a barrel of salt on hand for that purpose; and that the day prior to the plaintiff's injury they had cleaned the common approach upon which her...
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