Rothfuss v. Hamilton Masonic Temple Co. of Hamilton

• Decision Date: 30 May 1973
• Docket Number: No. 72-539,72-539
• Citation: 297 N.E.2d 105,63 O.O.2d 270,34 Ohio St.2d 176
• Parties: , 63 O.O.2d 270 ROTHFUSS et al., Appellants, v. HAMILTON MASONIC TEMPLE CO. OF HAMILTON, Appellee.
• Court: Ohio Supreme Court

Page 176

34 Ohio St.2d 176

297 N.E.2d 105, 63 O.O.2d 270

ROTHFUSS et al., Appellants, v. HAMILTON MASONIC TEMPLE CO. OF HAMILTON, Appellee.

No. 72-539.

Supreme Court of Ohio.

May 30, 1973.

Syllabus by the Court

1. Where, in the trial of an action for negligent maintenance of a qualified nuisance, the undisputed evidence shows the continued maintenance in the night season for some 32 years of an open, unguarded and unlighted window well, eight feet long, three feet, three inches wide, and approximately four feet deep, located contiguous to a partially lighted, blacktopped, private parking area, in close proximity to the natural path of ingress and egress to parked automobiles, such dangerous condition is a qualified nuisance and constitutes negligence as a matter of law, and it is not error for the trial court to so charge the jury.

2. Where the evidence, in the trial of an action brought for the maintenance of a qualified nuisance, viewed must favorably towards plaintiff for the purpose of defendant's motion for a directed verdict, is conflicting on the issue of the plaintiff's alleged contributory negligence, or a combination of circumstances exists relative to the question of plaintiff's contributory negligence so as to require a resolution of what are the true facts, such situation lends itself to an inference that plaintiff exercised ordinary care and the ultimate determination of this issue is solely within the province of the jury: and it is error for the Court of Appeals to invade that province of the jury.

Plaintiffs are husband and wife. Mrs. Corilda Rothfuss, a resident of Middletown, Ohio, went to Hamilton, Ohio, on May 5, 1959, to visit with her sister. Mrs. Rothfuss, hereinafter referred to as appellant, accompanied her sister to a meeting that evening at the Hamilton Masonic Temple, owned and operated by Hamilton Masonic Temple Company of Hamilton, Ohio, hereinafter referred to as appellee.

Upon arriving at the Temple, at approximately 7:15 p. m., appellant's sister parked in the rear parking lot of appellee's building, properly positioning her automobile head-in, facing the back wall of the building, between painted lines provided for that purpose.

At the time that appellant departed from the automobile, daylight conditions prevailed. Appellant proceeded from the front passenger side of the automobile around to the rear of the vehicle and accompanied her sister into the building.

Appellant testified that, as a member of affiliated bodies of the Masonic Lodge in Middletown, Ohio, she had occasion to visit the appellee Temple approximately six times prior to this visit, but that she had never previously parked in this particular parking lot.

After the meeting ended, at 10:00 p. m., the appellant, accompanied by her sister and brother-in-law, left the building from the east door and proceeded around to the rear lot. The building custodian also followed them, but at a distance of 20 to 25 feet. All but appellant had become familiar with the lot over a period of time.

The parking lot, itself, was blacktopped. There were two 150 watt lights which were located on the rear wall at the east and west corners of the Temple building. Each light extended two feet from the wall of the building into the parking lot at a height of 15 feet. There were also two additional lights located on telephone poles in the alley behind the building. Witnesses testified that the lighting conditions in the parking lot were such that there was partial light, with shadows all around.

Appellant, in the company of her sister and brother-in-law, proceeded a considerable distance over the partially lighted and shadowy parking lot. Upon reaching her sister's automobile, she walked around the front of the car, between the wall and the automobile, and fell into the first of three unlighted and unguarded window wells, sustaining permanent injuries.

The window wells were contiguous to the rear of the building, were eight feet long and approximately four feet deep, and protruded three feet, three inches out from the rear wall of the building. The rear wall of the building was recessed 24 to 30 inches from the east and west corners of the building, each of which corners accommodated the lights, so that, as a result, the lighting conditions in the area of the window wells were variously described as dark to partially light and shadowy. The window wells were adjacent to the lines describing the parking places, and testimony indicated that car bumpers overhang the wells, further causing shadowy conditions.

The window wells constructed with two and one-half inch protective curbings around their semi-perimeters and have remained uncovered and unguarded, except for the curbing, since their construction.

The Ohio Building Code in effect at the time of construction in 1927 did not specifically require grards, although the present Building Code does require protective guards on newly constructed buildings and those buildings which have been repaired.

The case was tried to a jury in the Court of Common Pleas. The trial court twice overruled appellee's motions for a directed verdict, made first at the conclusion of appellants' case and at the close of all the evidence. The court also overruled appellants' motion for a directed verdict, made at the close of all the evidence, and submitted the case to the jury, charging that the maintenance of the open, unguarded window well constituted a qualified nuisance and that the appellee was thereby negligent as a matter of law. The court also submitted the issues of negligence, proximate cause, appellant's contributory negligence and assumption of risk to the jury.

The jury returned a unanimous verdict in the amount of $18,000 for appellant Corilda Rothfuss, and a verdict in the amount of $3,500 for appellant William M. Rothfuss, for loss of consortium and special damages.

Appellee thereafter filed motions for a new trial and for judgment non obstante veredicto, both of which were overruled.

Subsequently, appellee appealed to the Court of Appeals. That court reversed the judgments of the Court of Common Pleas, holding that the motions for a directed verdict for the appellee should have been granted for the stated reason that, as a matter of law, the appellant was contributorily negligent in stepping into the darkened window well.

Appellants then appealed to this court which remanded the causes to the Court of Appeals to rule on all assignments of error not passed upon. (27 Ohio St.2d 131, 271 N.E.2d 801 (1971).)

Upon remand, the Court of Appeals, consolidating the cases, and additionally held that the trial court erred in instructing the jury that the appellee maintained a qualified nuisance and that, by virtue thereof, was negligent as a matter of law.

The causes are now before this court pursuant to the allowance of motions to certify the records.

Irving I. Saul, Dayton, Mary C. Lord, Middletown, and T. Patrick Lordeon, Youngstown, for appellants.

Baden, Jones & Scheper, Hamilton, for appellee.

CORRIGAN, Justice.

Appellants' six propositions of law can be condensed into two legal questions for this court to consider.

Appellants' first contention is that the trial court did not err in its charge to the jury that the appellee maintained a qualified nuisance and was negligent as a matter of law.

This court has recognized that the duty owed by possessors of land to those who may be injured on their premises is a different duty than the duty owed to ordinary social guests, as a result of the doctrine of qualified nuisance. See paragraph three of the syllabus in Taylor v, Cincinnati (1944), 143 Ohio St. 426, 427, 55 N.E.2d 724, 725, which reads:

'As distinguished from absolute nuisance, a qualified nuisance or nuisance dependent upon negligence consists of anything lawfully but so negligently or carelessly done or permitted as to create a potential and unreasonable risk of harm, which, in due course, results in injury to another.'

In elaborating upon this type of nuisance or nuisance dependent upon negligence, this court stated, at 441, 55 N.E.2d at 731:

'* * * It most frequently consists of acts or conditions involving unreasonable risk of harm resulting in personal injury. In such case, of course, negligence must be averred and proven to warrant a recovery. Bates Pleading and Practice, 1925, Section 2171a. Applying such connotation, 'nuisance' may be and frequently is the consequence of negligence.'

That statement in Taylor, coupled with Judge Cardozo's opinion in McFarlane v. Niagara Falls (1928), 247 N.Y. 340, 160 N.E. 391, as quoted in the Taylor opinion, indicates that a civil action based upon the maintenance of a qualified nuisance is essentially an action in tort for the negligent maintenance of a condition, which, of itself, creates an unreasonable risk of harm, ultimately resulting in injury. The dangerous condition constitute the nuisance. The action for damages is predicated upon carelessly or negligently allowing such condition to exist.

In an action based on the maintenance of a qualified nuisance, the standard of care owed to one injured is that care a prudent man would exercise in preventing potentially or unreasonably dangerous conditions to exist. It is the same standard of care required of owners and occupiers of land toward business invitees, but is quite dissimilar from the duty to warn social guests of the existence of such a condition. Scheibel v. Lipton (1951), 156 Ohio St. 308, 102 N.E.2d 453.

The Court of Appeals found that the trial court erred in instructing the jury that the appellee maintained a qualified nuisance, and, by virtue thereof, was negligent as a matter of law. That court stated that it is the province of the court to define a qualified nuisance, and, further, that it is the province of the jury to determine whether the circumstances of the case before it come within such given definition.

It has been the settled law of Ohio...