Preston v. Baltimore & Ohio R. Co.

• Decision Date: 10 June 1988
• Docket Number: No. L-87-229,L-87-229
• Citation: 49 Ohio App.3d 70,550 N.E.2d 191
• Parties: PRESTON et al., Appellants, v. BALTIMORE & OHIO RAILROAD COMPANY, et al., Appellees. *
• Court: Ohio Court of Appeals

Page 70

49 Ohio App.3d 70

550 N.E.2d 191

PRESTON et al., Appellants, v. BALTIMORE & OHIO RAILROAD COMPANY, et al., Appellees. ^*

No. L-87-229.

Court of Appeals of Ohio, Sixth District, Lucas County.

June 10, 1988.

Syllabus by the Court

1. The standard of care owed by property owners to an undiscovered trespasser is to do nothing other than refrain from injuring such trespasser by willful or wanton conduct.

2. A train's occupancy of a crossing for a period of time in excess of the limit prescribed by statute or ordinance is generally to be regarded as a condition only, and not as a cause of an injury.

3. R.C. 5589.21 is designed to facilitate the movement of traffic and to discourage unnecessary blockage; it is not a safety measure.

E.J. Leizerman, Toledo, for appellants.

H. Frank McDaniel, Toledo, for Baltimore & Ohio RR. Co.

David M. Schnorf, Toledo, for Toledo Terminal.

Sam Nugent, Toledo, for city of Toledo.

PER CURIAM.

This cause is before this court on appeal from a judgment of the Lucas County Court of Common Pleas.

On May 25, 1982, appellant Richard Preston cut school after his second hour to go fishing with a friend in a nearby pond. Appellant was, at the time, sixteen years of age and in the eighth grade at Eastside Junior High School. A railroad, owned by appellee Toledo Terminal, was located in the area of the pond. A train, owned by appellee B & O Railroad Company and located on Toledo Terminal's railroad tracks, had been stationary and blocking the grade crossing at Seaman Street for what various people testified to as from twelve to twenty-five minutes. Appellant attempted to climb over this train at a point approximately six hundred twelve feet from the Seaman Street grade crossing and, while doing so, fell under the train, sustaining serious injury including loss of his left arm, leg, pelvis, testicle, and sphincter muscles. Appellant ¹ filed suit against appellees railroad companies claiming negligence, attractive nuisance, and willful and wanton conduct, and against appellee city of Toledo ² claiming duty and failure to enforce R.C. 5589.21 in violation of its statutory obligations to keep its roads open and free of nuisance. The trial court rendered summary judgment in favor of all appellees. Appellants filed a timely notice of appeal and assert the following assignments of error:

"I. The trial court erred in granting defendants railroads' motion for summary judgment because there exists an issue of material fact as to these defendants' negligence.

"II. The trial court erred in granting defendants railroads' motion for summary judgment because there exists an issue of material fact as to these defendants' willful and wanton misconduct.

"III. The trial court erred in granting defendants railroads' motion for summary judgment because there exists an issue of material fact as to whether plaintiff was a trespasser and whether his alleged violation of R.C. 499. 02 was the sole proximate cause of the accident.

"IV. The trial court erred in granting defendants railroads' motion for summary judgment by refusing to abolish the invitee-licensee-trespasser distinction in favor of one uniform standard of care applicable to all who enter upon another's property.

"V. The trial court erred in granting defendant city of Toledo's motion for summary judgment for the reason that the city owed plaintiff a duty to enforce R.C. 5589.21.

"VI. The trial court erred in granting defendant city of Toledo's motion for summary judgment for the reason that an issue of material fact exists with regard to the city's violation of R.C. 723.01.

"VII. The trial court erred in granting defendant city of Toledo's motion for summary judgment; whether or not the city's acts and omissions were a proximate cause of plaintiff's injuries was a question of fact."

In all of the assignments of error, appellants contend that it was error for the trial court to grant summary judgment. Summary judgment is controlled by Civ.R. 56(C), which states in pertinent part:

" * * * Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A 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, such party being entitled to have the evidence or stipulation construed most strongly in his favor. * * * "

Three requirements are adduced from this rule. First, there must be no genuine issue as to any material fact; second, the moving party must be entitled to judgment as a matter of law; and third, reasonable minds must be able to come to but one conclusion, and that conclusion must be adverse to the party against whom the motion for summary judgment is made, who is entitled to have evidence construed most strongly in his favor. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47.

The function of summary judgment, as explained in Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1, 2-3, 24 O.O.3d 1, 2, 433 N.E.2d 615, 616, is as follows:

" 'Summary judgment is a procedural device to terminate litigation and to avoid a formal trial where there is nothing to try. It must be awarded with caution, resolving doubts and construing evidence against the moving party, and granted only when it appears from the evidentiary material that reasonable minds can reach only an adverse conclusion as to the party opposing the motion. * * * A successful motion for summary judgment rests on the two-part foundation that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. * * * ' " (Citations omitted.)

As a reviewing court, this court, in order to determine the propriety of the trial court's grant of summary judgment, must examine the record of the appeal in a light most favorable to the party opposing the motion for summary judgment. See Engel v. Corrigan (1983), 12 Ohio App.3d 34, 12 OBR 121, 465 N.E.2d 932; Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 66 O.O.2d 311, 309 N.E.2d 924. Thus, we will consider each assignment of error in light of the requirements of Civ.R. 56(C).

First, we will address appellants' fourth assignment of error. Appellants contend that the distinction among invitees, licensees, and trespassers should be abolished and replaced by a uniform standard of care applicable to all who enter upon another's property and that the trial court erred in refusing to adopt this standard. This argument is without merit. The courts of Ohio, including this court of appeals, are bound by the decisions of the Supreme Court of Ohio. Shuman v. Schick (1953), 95 Ohio App. 413, 416, 53 O.O. 441, 442, 120 N.E.2d 330, 332; Thompson v. Moore (1943), 72 Ohio App. 539, 541-542, 27 O.O. 491, 492, 53 N.E.2d 666, 667. See, also, Rules 1 and 2 of the Supreme Court Rules for the Reporting of Opinions. As stated in Shuman, supra, at 416, 53 O.O. at 442, 120 N.E.2d at 332:

"The decisions of other jurisdictions cited by appellants * * * [may be] very persuasive but when our Supreme Court has definitely established a precedent as has been done on the question presented by these facts, it would be presumptious [sic ] for * * * [any] court [of this state] to refuse to approve or acquiesce in such decision."

The Supreme Court of Ohio has continued to distinguish among invitees, licensees, and trespassers in McKinney v. Hartz & Restle Realtors, Inc. (1987), 31 Ohio St.3d 244, 31 OBR 449, 510 N.E.2d 386; Elliott v. Nagy (1986), 22 Ohio St.3d 58, 22 OBR 77, 488 N.E.2d 853; Brooks v. Norfolk & Western Ry. Co. (1976), 45 Ohio St.2d 34, 74 O.O.2d 53, 340 N.E.2d 392; and numerous other cases. Accordingly, appellants' fourth assignment of error is found not well-taken.

Appellants' first, second, and third assignments of error are interrelated and will be addressed together. Appellant Richard Preston's status as an invitee, licensee, or trespasser dictates the standard of care owed by appellees to him. Appellants assert that the issue of whether one is a trespasser must be submitted to the jury. However, the case appellants cite for that proposition is prefaced with the phrase, " * * * Where the evidence is such as to warrant," and continues with the language, "it is the duty of the trial court to submit to the jury the question as to whether the person injured on the premises of another by the claimed negligence of the owner thereof was at the time of such injury on the premises either at the express or implied invitation of the defendant, or whether he was a trespasser, or a mere licensee." (Emphasis added.) Pennsylvania RR. Co. v. Vitti (1924), 111 Ohio St. 670, 675-676, 146 N.E. 94, 95.

It is uncontroverted that appellant Richard Preston was not attempting to cross at the Seaman Street grade crossing, but rather was some six hundred twelve feet from the crossing in a wooded area, on the railroad property, and without the knowledge, invitation or acquiescence of the owners. Previously, Richard had been warned to stay away from the trains by railroad authorities. Therefore, appellant had no right to be where he was and was, thus, a trespasser. See McKinney, supra, at 246, 31 OBR at 450, 510 N.E.2d at 388 ("A trespasser is one who, without express or implied authorization, invitation or inducement, enters private premises purely for his own purposes or convenience. * * * ").

The standard of care owed...