Presley v. City of Norwood, No. 73-51

CourtUnited States State Supreme Court of Ohio
Writing for the CourtSTERN; C. WILLIAM O'NEILL; HERBERT
Citation36 Ohio St.2d 29,65 O.O. 2d 129,303 N.E.2d 81
Parties, 65 O.O.2d 129 PRESLEY, Appellant, v. CITY OF NORWOOD, Appellee.
Docket NumberNo. 73-51
Decision Date31 October 1973

Page 29

36 Ohio St.2d 29
303 N.E.2d 81, 65 O.O.2d 129
PRESLEY, Appellant,
v.
CITY OF NORWOOD, Appellee.
No. 73-51.
Supreme Court of Ohio.
Oct. 31, 1973.

[303 N.E.2d 82] Syllabus by the Court

1. Where the record affirmatively shows that a trial court has been fully apprised of the correct law governing a material issue in dispute, and that the complaining party has unsuccessfully requested the inclusion of that law in the trial court's charge to the jury, such party does not waive his objections to the court's charge by failing to formally object thereto. (Civ.R. 51(A).)

2. A party whose request for jury instructions fails to embody the correct law governing an issue, and who otherwise fails to comply with Civ.R. 51(A), waives his right to question the trial court's charge upon appeal.

Plaintiff, Norman Pressley, instituted an action in the Court of Common Pleas of Hamilton County against the city of Norwood to recover damages for injuries sustained in a fall at the Norwood Safety Lane, operated by the city of Norwood. On March 6, 1967, plaintiff drove his automobile to the Norwood Safety Lane for a [303 N.E.2d 83] motor vehicle test. After passing through the various test points, plaintiff parked in a berthing area and proceeded on foot toward the cashier's window to pay the required fee. Due to a heavy snowfall and traffic through the safety lane, water had accumulated on the partially-protected premises. Plaintiff slipped and fell in a large puddle lying directly in his path. It later appeared that the puddle had concealed a coating of grease or oil on the floor.

Page 30

The jury returned a verdict for the plaintiff and judgment was entered upon the verdict. In the Court of Appeals, defendant assigned the following errors:

'The trial court erred in overruling appellant's motion for directed verdict at the conclusion of plaintiff-appellee's evidence.

'The trial court erred in refusing to submit defendant-appellant's special charge No. 1. 1

'The trial court erred in failing to charge the jury relative to the burden upon the plaintiff-appellee of proving notice on the part of the defendant-appellant as well as the duration of the dangerous condition.'

The Court of Appeals found the first assignment of error to be not well taken. Holding the second assignment of error to be well taken, the Court of Appeals said that, although the requested special charge did not fully embody the applicable law, defendant had substantially complied with the notice requirement of Civ.R. 51(A), and therefore he was not precluded from assigning as error in the Court of Appeals the trial court's refusal to give the requested charge.

As to the third assignment of error, the Court of Appeals held that the trial court had been sufficiently apprised of the law governing the issue of notice to require it to include an appropriate instruction on that issue in its general charge to the jury. Failure to do so, the Court of Appeals said, constituted prejudicial error necessitating new trial.

The cause is now before us upon allowance of plaintiff's motion to certify the record.

Waite, Schindel, Bayless & Schneider, Phillip J. Schneider, and Stanley M. Chesley, Cincinnati, for appellant.

Thomas B. Walker, City Sol., for appellee.

Page 31

STERN, Justice.

Resolution of this case involves a twostep determination. First, did the trial court err in failing to charge the jury that appellee must have had knowledge of the hazardous condition of the premises before it could be found negligent? Second, did appellee waive its right to question the court's charge by not objecting thereto before the jury retired? Our initial focus is on the adequacy of the charge.

The duty owned by a proprietor to his business invitees is one of ordinary care to insure their safety. S. S. Kresge Co. v. Fader (1927), 116 Ohio St. 718, 158 N.E. 174. This duty has been more particularly defined as it applies to differing fact patterns. Where, as here, injury arises from a 'slip and fall' due to a hazardous condition not created by the proprietor or his employees, the rule is clear. In such cases, the plaintiff must show that the defendant had, or in the exercise of ordinary care should have had, notice of the hazard for a sufficient time to enable him, in the exercise...

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469 practice notes
  • Cavins v. S & B Health Care, Inc., No. 26615.
    • United States
    • United States Court of Appeals (Ohio)
    • September 30, 2015
    ...shall be given to make the objection out of the hearing of the jury.”{¶ 112} An exception to waiver was found in Presley v. Norwood, 36 Ohio St.2d 29, 303 N.E.2d 81 (1973), which held that:Where the record affirmatively shows that a trial court has been fully apprised of the correct law gov......
  • Nevins v. Ohio Dept. of Transp., No. 98AP-141
    • United States
    • United States Court of Appeals (Ohio)
    • December 22, 1998
    ...of alleged errors in the instructions when it still has an opportunity to correct the mistake or defect. Presley v. Norwood (1973), 36 Ohio St.2d 29, 33, 65 O.O.2d 129, 131, 303 N.E.2d 81, 132 Ohio App.3d 33 Plaintiffs contend that Presley excuses their failure to timely object to the court......
  • Dryer v. Flower Hosp., No. 3:04 CV 7631.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • August 25, 2005
    ...App.3d 29, 484 N.E.2d 203, 205 (1984). As an invitee, Plaintiff was owed a duty of "ordinary care" by the Hospital. Presley v. Norwood, 36 Ohio St.2d 29, 303 N.E.2d 81, 83 (1973). Once the duty has been established, this Court must determine if a breach has "Ordinary care" means that the Ho......
  • Berge v. Columbus Community Cable Access, No. 99AP-75 and 99AP-76.
    • United States
    • United States Court of Appeals (Ohio)
    • December 23, 1999
    ...omission of a jury instruction, such a failure may be excused by an exception to the waiver rule found in Presley v. Norwood (1973), 36 Ohio St.2d 29, 65 O.O.2d 129, 303 N.E.2d 81. In Presley, the Ohio Supreme Court held that "where the record affirmatively shows that a trial court has been......
  • Request a trial to view additional results
470 cases
  • Cavins v. S & B Health Care, Inc., No. 26615.
    • United States
    • United States Court of Appeals (Ohio)
    • September 30, 2015
    ...shall be given to make the objection out of the hearing of the jury.”{¶ 112} An exception to waiver was found in Presley v. Norwood, 36 Ohio St.2d 29, 303 N.E.2d 81 (1973), which held that:Where the record affirmatively shows that a trial court has been fully apprised of the correct law gov......
  • Nevins v. Ohio Dept. of Transp., No. 98AP-141
    • United States
    • United States Court of Appeals (Ohio)
    • December 22, 1998
    ...of alleged errors in the instructions when it still has an opportunity to correct the mistake or defect. Presley v. Norwood (1973), 36 Ohio St.2d 29, 33, 65 O.O.2d 129, 131, 303 N.E.2d 81, 132 Ohio App.3d 33 Plaintiffs contend that Presley excuses their failure to timely object to the court......
  • Dryer v. Flower Hosp., No. 3:04 CV 7631.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • August 25, 2005
    ...484 N.E.2d 203, 205 (1984). As an invitee, Plaintiff was owed a duty of "ordinary care" by the Hospital. Presley v. Norwood, 36 Ohio St.2d 29, 303 N.E.2d 81, 83 (1973). Once the duty has been established, this Court must determine if a breach has "Ordinary care" means th......
  • Berge v. Columbus Community Cable Access, No. 99AP-75 and 99AP-76.
    • United States
    • United States Court of Appeals (Ohio)
    • December 23, 1999
    ...omission of a jury instruction, such a failure may be excused by an exception to the waiver rule found in Presley v. Norwood (1973), 36 Ohio St.2d 29, 65 O.O.2d 129, 303 N.E.2d 81. In Presley, the Ohio Supreme Court held that "where the record affirmatively shows that a trial court has......
  • Request a trial to view additional results

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