Presley v. City of Norwood

• Decision Date: 31 October 1973
• Docket Number: No. 73-51,73-51
• Citation: 36 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.
• Court: Ohio Supreme Court

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.

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 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.

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.

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 of ordinary care, to remove it or warn patrons about it. Anaple v. Standard Oil Co. (1955), 162 Ohio St. 537, 127 N.E.2d 128; Johnson v. Wagner Provision Co. (1943), 141 Ohio St. 584, 49 N.E.2d 925. Appellant argues that Mikula v. Slavin Tailors (1970), 24 Ohio St.2d 48, 263 N.E.2d 316, eliminated this element of notice where a hazardous condition is concealed from view. His reliance is misplaced. Paragraph five of the syllabus in Mikula, supra, reads:

'Where an owner in control of a business parking area has notice, actual or constructive, that a natural accumulation of snow thereon has, by reason of covering a hole in the surface thereof, created a condition substantially more dangerous to a business invitee than that normally associated with snow, such owner's failure to correct the condition constitutes actionable negligence.' (Emphasis added.)

Even were we to substitute the words 'water' and 'oily grease' for the words 'snow' and 'hole' which appear in the above-quoted syllabus, as appellant suggests, his contention is without merit.

There was some confusion at trial about the need to show the length of time that the water and oil had remained on the premises. If a plaintiff cannot show that a defendant had actual knowledge of an existent hazard, evidence as to the length of time the hazard had existed is necessary to support an inference that defendant had constructive notice. In order to support such an inference, the jury must be presented with evidence sufficient to indicate that a dangerous condition has '* * * existed for a sufficient time reasonably to justify the inference that the failure to warn against it or remove it was attributable to a want of ordinary care.' Johnson, supra, at 584 of 141 Ohio St., at 926 of 49 N.E.2d; 2 Restatement of the Law, Torts 2d, Appendix, 192. See, also, 62 A.L.R.2d 6, at 33 et seq.

This court holds that the trial court's failure to charge the jury on the necessity of appellee's having notice of the hazard (water and oil on the floor) was error. Therefore, on that issue, the judgment of the Court of Appeals is affirmed.

We next observe that the Court of Appeals, in holding appellee's second assignment of error to be well taken, misconstrued the application of Civ.R. 51(A) and thereby erred. A party can no longer predicate error solely on a trial court's refusal to accept a requested jury instruction. The distinction between 'general' and 'special' charges has been abolished by Civ.R. 51(A), and all objections must now be directed to the charge as given by the trial court.

Appellant finally contends that appellee's failure to comply with Civ.R. 51(A) precludes it from now complaining of error in the trial court's charge. We turn to the applicable portion of that rule:

'No party may assign as error the giving or the failure to give any instruction unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. * * *'

Although this court has not definitively spoken on the matter, the federal judiciary has been applying a rule essentially identical to Civ.R. 51(A) since its promulgation in 1938. ² The theory behind Civ.R. 51(A), like that behind Rule 51 of the Federal Rules of Civil Procedure, is 'that the court should be given an opportunity to correct a mistake or defect in the instruction when it can be accomplished during the same trial.' McCormac, Ohio Civil Rules Practice, Section 12.18; 5A Moore, Federal Practice (2 Ed.), Section 51.04. Federal courts have recognized that once a party makes his position...