Posin v. A. B. C. Motor Court Hotel, Inc.

Decision Date17 March 1976
Docket NumberNo. 75-518,75-518
Parties, 74 O.O.2d 427 POSIN et al., Appellees, v. A. B. C. MOTOR COURT HOTEL, INC., Appellant.
CourtOhio Supreme Court

Syllabus by the Court

1. In Ohio, the step-in-the-dark rule of contributory negligence merely raises an inference of the lack of prudence and ordinary care on the part of a plaintiff; and, where evidence is conflicting as to the intentional nature of the step in the dark, the lighting conditions and degree of darkness, the nature and appearance of the permises, or other circumstances tending to disprove a voluntary, deliberate step into unknown darkness, then a factual question arises requiring a determination by the jury, and a motion for a directed verdict is properly overruled by the trial court.

2. Where the evidence in a negligence action, when construed most favorably toward the plaintiff against whom a judgment notwithstanding the verdict was granted, indicates: that the defendant corporation's desk clerk was on duty when she issued an invitation to the plaintiff to enter a door to defendant's office reserved for employees; that she was required to remain on duty at all times; that at that time the clerk was engaging in the defendant's business as well as her own; that the clerk had apparent authority pursuant to her duties to authorize such an entry; and that the plaintiff relied on that authority; then, the determination as to whether defendant's clerk was acting within the scope of her employment with the defendant corporation is a question of fact for the jury, and the trial court's granting judgment notwithstanding the verdict was an invasion of the province of the jury to make that ultimate determination and was erroneous.

This cause arose out of a fall suffered by the plaintiff-appellee, James H. Posin, on December 8, 1969, at the A. B. C. Motor Court Hotel, operated by the defendant-appellant.

Plaintiff testified that he checked into the motel between 5:00 and 6:00 p. m. on December 8, 1969. He went to dinner at a shopping center across the street from the motel. On his way back, he stopped and purchased a package of cigarettes and a six-pack of beer. He returned to his motel room and then went to the motel office and asked whether the motel had an ice machine. The clerk advised him that it was located in back of the building. Plaintiff testified that he stated that he wanted to keep his beer cold and the desk clerk replied that she would like to have a beer herself. Plaintiff said that he offered to bring her one when he would return to get the ice. Plaintiff testified that the clerk agreed and told plaintiff to come in the back door. Plaintiff went to his room and returned to the office with a bottle of beer, entering through the rear door of the building.

The evidence is undisputed that the rear door leads to a narrow landing. Opposite the rear door on the landing is the stairway to the cellar. The testimony indicated that when the rear door was fully opened inwardly it came to within six to eight inches from the cellar stairway. The defendant's own corporate officer, Mrs. Brown, testified that the landing and stairway constituted a dangerous situation.

Plaintiff testified that he did not notice whether the light over the landing was on or not, but that there was lighting from the outside. He testified further that enough light came from outside and from the opened door of the office, located on the right-hand side of the landing, so that he was able to see the landing. He testified, however, that the light was not sufficient to enable him to see the stairway.

Plaintiff stated that after he entered onto the landing he automatically turned around in order to close the door. He then called for the desk clerk and she came from the apartment doorway on the left-hand side of the landing. At this time, plaintiff stated, before he had handed the beer to the desk clerk but after he had turned his back to the stairwell, a bell rang and someone came into the office. The desk clerk then said, 'Excuse me,' to the plaintiff and proceeded past him to the motel office area. At this time, he maintains, he stepped back to allow the desk clerk to go by him and, in so doing, fell down the cellar steps, sustaining injuries.

Defendant's clerk denied having had any conversation with the plaintiff concerning the beer or even having seen him after he returned from dinner, prior to his falling down the cellar stairs. She stated that she was at the desk and switchboard in the motel office when plaintiff entered by the rear door and shortly thereafter fell down the stairs. She testified further that a light was burning above the landing inside the door and that the rear door had a sign on it stating 'Employees Only.'

The desk clerk's daughter, who had brought dinner to her, testified substantially the same. She said that she had seen someone walk by the rear window of the office and heard that individual enter through the rear door. A short period of time elapsed after the entry before the desk clerk, her daughter, and the daughter's boy friend, all in the office, heard the fall.

On the basis of the above facts the jury in the Court of Common Pleas of Franklin County returned a verdict for the plaintiff, James H. Posin, in the amount of $50,000 and for the plaintiff, Leona Posin, in the amount of $10,000.

The defendant corporation moved alternatively for a new trial or a judgment notwithstanding the verdict. The court granted a judgment notwithstanding the verdict and entered a final judgment in favor of the defendant.

The court, in granting the motion, concluded that a jury might reasonably find that the desk clerk had a duty to warn the plaintiff of the danger of the open stairwell. The court concluded further that the step-in-the-dark cases were not applicable in establishing the plaintiff's contributory negligence, because the plaitniff did not intentionally step into a darkened area. The court found, however, that, upon the evidence adduced at trial, reasonable minds could come to only one conclusion, that the acts of the defendant's clerk, in inviting the plaintiff to enter the rear door of the office for purposes of delivering a beer, were not within the scope of the clerk's employment and were not ordinary or natural incidents or attributes of the service to be rendered or a natural, direct or logical result of it.

Upon appeal, the Court of Appeals reversed the judgment notwithstanding the verdict and reinstated the jury's verdict. That court concluded that defendant's clerk had a duty to warn the plaintiff, a licensee on the property, of the dangerous condition on the landing. The court also determined that there was no error in the trial court's determination that the step-in-the-dark cases did not apply since that court had correctly instructed the jury on the applicability of the step-in-the-dark rule.

The Court of Appeals reversed the judgment notwithstanding the verdict on the basis that the issue as to whether the clerk was acting within the scope of her employment was a question of fact for the jury and that it was error for the court to determine as a matter of law that the clerk's invitation was outside the scope of her employment.

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

Volkema, Pees & Snevel and Randall W. Pees, Columbus, for appellees.

Crabbe, Brown, Jones, Potts & Schmidt, William L. Schmidt and Vincent J. Lodico, Columbus, for appellant.

J. J. P. CORRIGAN, Justice.

I.

Defendant presents two porpositions of law for this court's consideration.

In its first proposition of law, defendant maintains that the actions of defendant's desk clerk in requesting a beer and inviting a guest to enter the rear door of the motel office, marked 'Employees Only,' were clearly outside the scope of the clerk's employment with the defendant, and that the trial court was correct in granting a judgment notwithstanding the jury's verdict.

Defendant's second proposition of law maintains that the defendant-appellant was entitled to a directed verdict as a matter of law on the issue of the plaintiff's contributory negligence in stepping back into a totally dark stairwell.

Defendant's propositions of law seek, in one instance, a judgment notwithstanding the verdict and, in the other, a directed verdict.

The test to be applied by a trial court in ruling on a motion for judgment notwithstanding the verdict is the same test to be applied on a motion for a directed verdict. The evidence adduced at trial and the facts established by admissions in the pleadings and in the record must be construed most strongly in favor of the party against whom the motion is made, and, where there is substantial evidence to support his side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied. Neither the weight of the evidence nor the credibility of the witnesses is for the court's determination in ruling upon either of the above motions. McNees v. Cincinnati Street Ry. Co. (1949), 152 Ohio St. 269, 89 N.E.2d 138; Ayers v. Woodard (1957), 166 Ohio St. 138, 140 N.E.2d 401; Civ.R. 50(A) and (B).

II.

We turn our attention first to defendant's second proposition of law, which was the subject of a motion for directed verdict made by defendant at the end of the plaintiff's case.

Defendant maintains that the trial court should have directed a verdict for the defendant on the basis that the plaintiff was guilty of contributory negligence as a matter of law. Defendant predicates this contention on the so-called step-in-the-dark rule.

The step-in-the-dark rule, as enunciated by Ohio courts, holds generally that one who, from a lighted area, intentionally steps into total darkness, without knowledge, information, or investigation as to what the darkness might conceal, is guilty of contributory negligence as a matter of law. Flury...

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