Roberts v. American Brewed Coffee

• Decision Date: 28 March 1973
• Citation: 69 O.O.2d 259,319 N.E.2d 218,40 Ohio App.2d 273
• Parties: , 84 A.L.R.3d 822, 69 O.O.2d 259 ROBERTS et al., Appellants, v. AMERICAN BREWED COFFEE et al., Appellees.
• Court: Ohio Court of Appeals

Page 273

40 Ohio App.2d 273

319 N.E.2d 218, 84 A.L.R.3d 822, 69 O.O.2d 259

ROBERTS et al., Appellants, v. AMERICAN BREWED COFFEE et al., Appellees.

Court of Appeals of Ohio, Ninth District, Summit County.

March 28, 1973.

Syllabus by the Court

Street vendors who play music and sell products, which are particularly appealing to children, from vehicles temporarily parked on a busy street, in a position requiring some children to cross the street before reaching the place of business, owe a duty to such invitees to protect them from the hazards of moving traffic.

Demer & Dunson, Cleveland, for appellants.

Buckingham, Doolittle & Burroughs, Akron, and Timothy F. Scanlon, Akron, of counsel, for appellees.

VICTOR, Judge.

This appeal is from an order dismissing the plaintiffs' amended complaint, on the ground that it fails to state a claim upon which relief can be granted.

The amended complaint alleges that plaintiff Janita Roberts, an appellant, is the mother of plaintiff Cheryl Kay Roberts, four years of age; that the defendants American Brewed Coffee and Dexter R. Woods, the appellees, operate a mobile vending business, selling ice cream from trucks, under the name of 'Mister Softee'; that, on August 24, 1971, at approximately 4:20 p. m., they were operating such a truck on Rhodes Avenue, in the city of Akron, Ohio.

The amended complaint further alleges that: 'said truck was playing music in an attempt to attract children to buy ice cream * * * (and) was not stopped at an intersection or where a cross-walk was located'; defendants, American Brewed Coffee and Dexter R. Woods, 'knew or should have known that during said hour the traffic was heavy on Rhodes Avenue and that children, upon hearing the music and seeing the ice cream truck, would be encouraged to cross Rhodes Avenue in order to purchase the ice cream'; the defendants 'thus created a negligent condition and an actively negligent condition'; Cheryl Kay Roberts 'heard the music from the Mister Softee ice cream truck and ran to purchase some ice cream'; in order to reach the truck, she was 'required to cross Rhodes Avenue,' and, as she was crossing Rhodes Avenue and 'proceeding directly to said Mister Softee ice cream truck, an automobile then being operated on Rhodes Avenue struck (her) * * * and caused her to be severely injured'; 'as a result of said negligence and said active condition of negligence which was created by the defendants, plaintiff Cheryl Kay Roberts sustained serious injuries * * *.'

Thereafter, American Brewed Coffee filed an answer denying all material allegations of the complaint. Dexter Woods filed no answer, but both defendants thereafter filed a motion to dismiss, which was sustained by the trial court.

Plaintiffs assert that the motion to dismiss should not have been granted because 'the plaintiffs' complaint indicated that the defendants had invited the plaintiff to do business with them and yet they failed to exercise due care to prevent injury to the plaintiff.'

Since American Brewed Coffee filed an answer to the amended complaint, its motion to dismiss was out of order. However, that issue has not been raised, and we shall disregard it. The parties agree that we should determine whether the amended complaint states a claim for which relief may be granted.

The plaintiffs' claim for relief is based upon the proposition that the defendants owed a duty to Cheryl Kay Roberts to provide her with a safe passage across Rhodes Avenue, to their place of business, temporarily established on that street, and in the public way, and that they breached that duty by failing to provide her with a safe passage, as a result of which she was struck by an automobile and sustained serious injuries.

As pointed out in Thomas v. Goodies Ice Cream Co., 13 Ohio App.2d 67 at 68, 233 N.E.2d 876 at 878:

'The operation of such a vending business upon the public streets depends upon the customer, frequently a child, coming to the vendor's vehicle at the place it is stopped in the roadway. Many of the customers cross the road or enter the paved portion of the street in coming to...