Provencher v. Ohio Dept. of Transp.

• Citation: 551 N.E.2d 1257,49 Ohio St.3d 265
• Decision Date: 14 March 1990
• Docket Number: No. 88-2062,88-2062
• Parties: PROVENCHER et al., Appellees, v. OHIO DEPARTMENT OF TRANSPORTATION, Appellant.
• Court: United States State Supreme Court of Ohio

Page 265

49 Ohio St.3d 265

551 N.E.2d 1257

PROVENCHER et al., Appellees, v. OHIO DEPARTMENT OF TRANSPORTATION, Appellant.

No. 88-2062.

Supreme Court of Ohio.

Submitted Jan. 10, 1990.

Decided March 14, 1990.

Syllabus by the Court

Individuals who use public roadside rest area facilities are, as a general rule, licensees for purposes of establishing the duty of care owed to them by the state or its agencies. (Light v. Ohio University [1986], 28 Ohio St.3d 66, 28 OBR 165, 502 N.E.2d 611, approved and followed.)

On June 6, 1985, plaintiff-appellee Kelly Provencher fell and fractured her right ankle while descending steps located at Rest Area 9-11, State Route 23, Waverly, Ohio. Rest Area 9-11 is owned, operated, and maintained by defendant-appellee, Ohio Department of Transportation ("ODOT").

Both appellees, Kelly Provencher and her husband, John G. Provencher, filed an action in the Court of Claims of Ohio on April 29, 1986, alleging that ODOT negligently maintained the steps located at the roadside rest area. The complaint sought judgment against ODOT for Mrs. Provencher's injuries incurred due to her fall and for her husband's loss of services and consortium.

On February 24, 1988, the Court of Claims dismissed appellees' action for failure to state a claim upon which relief could be granted. The appellees appealed, asserting that the trial court erred in holding that ODOT owed them no duty beyond refraining from willful or wanton misconduct.

The court of appeals reversed, holding that Mrs. Provencher was a public invitee, and that, therefore, ODOT owed her a duty to exercise reasonable care in the maintenance of its facility.

The cause is now before this court upon the allowance of a motion to certify the record.

Sindell, Rubenstein, Einbund, Pavlik, Novak & Celebrezze, Lewis Einbund, Cleveland, and Terry A. Bryer, for appellees.

Anthony J. Celebrezze, Jr., Atty. Gen., David C. Calderhead and Simon B. Karas, Columbus, for appellant.

HOLMES, Justice.

The single issue presented for our review concerns the duty of care owed by the state of Ohio to persons using public roadside rest area facilities. We are asked to recognize the "public invitee" standard, as set forth in 2 Restatement of the Law 2d, Torts (1965), Section 332(2), which imposes a duty, upon the owner or occupier, of ordinary care in maintaining his or her premises in a safe condition where persons are merely invited to enter. For the reasons which follow, we decline to adopt the "public invitee" standard.

This court has defined an "invitee" as " * * * a business visitor [or business invitee], that is, one rightfully on the premises of another for purposes in which the possessor of the premises has a beneficial interest." Scheibel v. Lipton (1951), 156 Ohio St. 308, 328-329, 46 O.O. 177, 186, 102 N.E.2d 453, 463; see, also, Light v. Ohio University (1986), 28 Ohio St.3d 66, 68, 28 OBR 165, 167, 502 N.E.2d 611, 613. In Light, in holding that users of gymnasium facilities of a state university were licensees, the court distinguished licensees and invitees. We stated that "[b]usiness invitees are persons who come upon the premises of another, by invitation, express or implied, for some purpose which is beneficial to the owner. Scheibel v. Lipton (1951), 156 Ohio St. 308 [46 O.O. 177, 102 N.E.2d 453]. It is the duty of the owner of the premises to exercise ordinary care and to protect the invitee by maintaining the premises in a safe condition. Presley v. Norwood (1973), 36 Ohio St.2d 29, 31 [65 O.O.2d 129, 303 N.E.2d 81]. Conversely, a person who enters the premises of another by permission or acquiescence, for his own pleasure or benefit, and not by invitation, is a licensee. A licensee takes his license subject to its attendant perils and risks. The licensor is not liable for ordinary negligence and owes the licensee no duty except to refrain from wantonly or willfully causing injury. Hannan v. Ehrlich (1921), 102 Ohio St. 176 paragraph four of the syllabus; see Scheurer v. Trustees of the Open Bible Church (1963), 175 Ohio St. 163 [23 O.O.2d 453, 192 N.E.2d 38]." Id. at 68, 28 OBR at 167, 502 N.E.2d at 613-614.

Appellees maintain that the increased safety of Ohio's highways which results from highway travelers' use of the rest areas is of sufficient benefit to the state of Ohio to confer invitee status upon all highway travelers who stop at the rest areas. We disagree. Appellees have failed to set forth any facts that would indicate that Mrs. Provencher's activities at the roadside rest area on June 6, 1985 were for the purpose of conducting business with ODOT. Furthermore, appellees have not set forth any benefit received by ODOT due to Mrs. Provencher's visit to its roadside rest area. Increased safety on the highways is not the type of benefit intended under our prior decisions in Scheibel, supra, and Light, supra. Moreover, any advantage to highway safety measured in this sense is intangible and not easily calculated. Therefore, we find that there was no benefit conferred upon the state or ODOT in Mrs. Provencher's use of the roadside rest area facility.

Alternatively, appellees suggest we adopt the "public invitee" standard as set forth in Section 332 of the Restatement of the Law 2d, supra, at 176, which states:

"(1) An invitee is either a public invitee or a business visitor.

"(2) A public invitee is a person who is invited to enter and remain on land as a member of the public for a purpose for which the land is held open to the public.

"(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with the business dealings with the possessor of the land."

The economic (or tangible) benefit test has long been recognized in this court in order to distinguish the status of an invitee from that of a licensee. ¹ See Scheibel, supra; Light, supra. On the other hand, the "public invitee" standard looks simply to whether an invitation has been implied or expressed to the visitor. Specifically, under the invitation test the economic benefit between the parties is not essential. "Rather it bases 'invitation' on the fact that the occupier [in this instance, the state] by his arrangement of the premises or other conduct has led the entrant to believe 'that [the premises] were intended to be used by visitors' for the purpose that this entrant was pursuing, 'and that such use was not only acquiesced in by the owner [or possessor], but that it was in accordance with the intention and design with which the way or place was adapted and prepared. * * * ' " 5 Harper, James & Gray, The Law of Torts (2 Ed.1986) 220, Section 27.12; see, also, Prosser & Keeton, Law of Torts (5 Ed.1984) 422-424, Section 61; Annotation (1964), 95 A.L.R.2d 992. In essence, the "public invitee" standard rejects the requirement that some type of benefit must be conferred on the owner or occupier before a visitor can be considered an invitee. See Scheibel, supra; Light, supra.

The Restatement's definition of "public invitee" has never been adopted by this court. The only reference ever made to it was in Holdshoe v. Whinery (1968), 14 Ohio St.2d 134, 136-137, 43 O.O.2d 240, 242, 237 N.E.2d 127, 129, where this court cited the Restatement in discussing the plaintiff's status at a recreational area where she paid for the use of the facilities (namely, a picnic table).

Even if we were persuaded to adopt the Restatement's definition of "public invitee," the Provenchers would not prevail in this case. We note that Comment d to Section 332(2) of the Restatement of the Law 2d, supra, states in pertinent part that:

"It is not enough, to hold land open to the public, that the public at large, or any considerable number of persons, are permitted to enter at will upon the land for their own purposes. As in other instances of invitation, there must be some inducement or encouragement to enter, some conduct indicating that the premises are provided and intended for public entry and use, and that the public will not merely be tolerated, but is expected and desired to come." Id. at 178-179.

Furthermore, Comment b to Section 332 of the Restatement of the Law 2d, supra, states: "Although invitation does not in itself establish the status of an invitee, it is essential to it. An invitation differs from mere permission in this: an invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct justifying others in believing that the possessor is willing that they shall enter if they desire to do so. * * * Mere permission, as distinguished from invitation, is sufficient to make the visitor a licensee, as stated in § 330; but it does not make him an invitee, even where his purpose in entering concerns the business of the possessor." Id. at 176-177.

In the case at bar, there is no indication that ODOT induced or encouraged members of the public to use its roadside rest area. Further, there is no reference to any tourist hospitality facilities, or restaurant or concession facilities at this rest...