Raflo v. Losantiville Country Club

• Decision Date: 11 April 1973
• Docket Number: No. 72-529,72-529
• Citation: 295 N.E.2d 202,63 O.O.2d 1,34 Ohio St.2d 1
• Parties: , 63 O.O.2d 1 RAFLO, Appellant, v. The LOSANTIVILLE COUNTRY CLUB, Appellee.
• Court: Ohio Supreme Court

Page 1

34 Ohio St.2d 1

295 N.E.2d 202, 63 O.O.2d 1

RAFLO, Appellant, v. The LOSANTIVILLE COUNTRY CLUB, Appellee.

No. 72-529.

Supreme Court of Ohio.

April 11, 1973.

Syllabus by the Court

1. One who upon entering a building traverses a step, the height of which is proscribed by the state building code, cannot maintain that the hazard was so insubstantial as to go unnoticed at that time, yet was unreasonably dangerous, hence actionable, when it occasioned her fall upon leaving the building.

2. One who enters a building by traversing a step described as 'abnormally high,' is charged with knowledge of the presence of that abnormality upon exiting (Leighton v. Hower Corp., 149 Ohio St. 72, 77 N.E.2d 600, followed).

When the plaintiff-appellant, Mrs. Sylvia Raflo, attended a wedding and luncheon at the defendant country club she did on behalf of her employer, a clothing company which had furnished the clothing being worn by the mother of the bride. Mrs. Raflo was invited as a family friend to remain for the luncheon following the wedding.

Appellant entered and existed the club house by the same door, and in so doing found it necessary to traverse a step described as 'abnormally high.' Both parties agreed that the step was nine and one-half inches in height and was in violation of Ohio Building Code regulation BB-23-47, which provides:

'No exit door shall open immediately onto a step, except that at grade exit doors there may be one step down not to exceed 7 1/2 inches high.'

The appellant's fall which occasioned her injuries, for which suit was brought, occurred as she was attempting to negotiate this step when leaving the club house after the affair.

Defendant-appellee's motion for summary judgment was granted by the trial court on the ground that appellant was, as a matter of law, guilty of contributory negligence proximately causing her injuries. The trial judge's decision cited, as its controlling authority, this court's holding in Leighton v. Hower Corp. (1948), 149 Ohio St. 72, 77 N.E.2d 600.

The Court of Appeals affirmed the judgment of the Court of Common Pleas. The cause is now before this court pursuant to the allowance of a motion to certify the record.

Beall, Hermanies & Bortz, Walter Bortz, Eichel & Krone and Lawrence E. Eichel, Cincinnati, for appellant.

Edward J. Utz, Cincinnati, for appellee.

PAUL W. BROWN, Justice.

Leighton v. Hower Corp., supra, involved a substantially identical fact situation. There, the plaintiff fell while leaving the toilet area by way of a door which opened immediately onto a step which plaintiff had ascended when she entered the toilet area a short time before. To plaintiff's claim, that she was 'temporarily oblivious' of the presence of the step at the time of her fall, this court responded that a fall under such circumstances showed a want of due care upon her part, and affirmed final judgment for the defendant awarded by the Court of Appeals.

The clear holding in that case justifies the granting of summary judgment in this case, unless we are willing to distinguish the cases upon the basis of differences in the time which elapsed between entering and leaving the club house in this case, and the time which elapsed between entering and leaving the toilet area in Leighton. The time difference in the cases here compared was less than three hours.

Generally, the plaintiff's failure to avoid a known peril is not excused by the fact that he 'did not think,' or 'forgot.' Baltimore & Ohio Rd. Co. v. Whitacre (1880), 35 Ohio St. 627; Jeswald v. Hutt (1968), 15 Ohio St.2d 224, 239 N.E.2d 37; Herbst v. Y. W. C. A. (1936), 57 Ohio App. 87, 11 N.E.2d 876; 39 Ohio Jurisprudence 2d 640, Negligence, Section 93; 74 A.L.R.2d 950, 957; 35 A.L.R.3d 220, 262.

We conclude that neither the time span nor the surrounding circumstances in this case are such as to make Leighton inapplicable, and to raise a jury question.

Ordinarily, the owners of premises are liable to an invitee who, although using due care for his own safety, is injured by reason of an unsafe condition of the premises which is known to the...