Sidle v. Humphrey

• Citation: 42 O.O.2d 96,233 N.E.2d 589,13 Ohio St.2d 45
• Decision Date: 24 January 1968
• Docket Number: No. 40796,40796
• Parties: , 32 A.L.R.3d 1, 42 O.O.2d 96 SIDLE et al., Appellees, v. HUMPHREY, Appellant.
• Court: United States State Supreme Court of Ohio

Page 45

13 Ohio St.2d 45

233 N.E.2d 589, 32 A.L.R.3d 1, 42 O.O.2d 96

SIDLE et al., Appellees, v. HUMPHREY, Appellant.

No. 40796.

Supreme Court of Ohio.

Jan. 24, 1968.

Syllabus by the Court

1. An occupier of premises is under no duty to protect a business invitee against dangers which are known to such invitee or are so obvious and apparent to such invitee that he may reasonably be expected to discover them and protect himself against them.

2. The dangers from natural accumulations of ice and snow are ordinarily so obvious and apparent that an occupier of premises may reasonably expect that a business invitee on his premises will discover those dangers and protect himself against them. (Debie v. Cochran Pharmacy-Berwick, Inc., 11 Ohio St.2d 38, 227 N.E.2d 603, approved and followed.)

3. Ordinarily, an owner and occupier has no duty to his business invitee to remove natural accumulations of snow and ice from private walks and steps on his premises. (Paragraph two of the syllabus in Debie v. Cochran Pharmacy-Berwick, Inc., 11 Ohio St.2d 38, 227 N.E.2d 603, approved and followed.)

4. The common-law duty, owed by a landlord to a business invitee of his tenant who is on a portion of the premises over which the landlord has retained control, is no greater than the common-law duty that any other occupier of premises would owe to his business invitee. (Oswald v. Jeraj, 146 Ohio St. 676, 67 N.E.2d 779, explained and distinguished.)

This is an action by the parents of Mark Sidle, a minor, to recover for medical expenses and for the loss of the earnings of Mark, resulting from injuries received in a fall when he was 12 years old.

The petition alleges that defendant was 'the owner of a multiple family dwelling * * * in * * * Columbus and * * * in control of the front steps thereto,' that 'on December 14, 1960, Mark * * * was engaged in delivering newspapers to the tenants of the defendant when he was caused to fall on the front steps * * * due to water and snow which the defendant had permitted to remain and form ice on said * * * steps,' and that 'defendant knew or had reason to know that a person such as plaintiff would sustain a fall and injury due to the condition in which the * * * steps * * * were permitted to remain.'

The evidence disclosed that the apartment building was on the north side of King Avenue, that in the late afternoon on December 14, 1960, Mark approached the defendant's apartment with the five or six papers required for defendant's tenants, that he was wearing ankle-top heavy shoes, that he observed a build-up of snow and ice on the east end of the steps and what appeared to be bare spots on the west end of the steps, that he used the west end of the steps in going in to the apartment, and that after delivering all his papers he returned to go down the west end of the steps and reached for the hand rail before starting down but slipped on the ice and fell to the bottom of the steps and sustained severe injuries.

The United States Weather Report showed that four inches of snow had fallen on December 11 and a trace on December 12 but none thereafter, and that, although there had been considerable sunshine on December 14, the temperature on that day was at or below freezing with two inches of snow remaining on the ground.

The steps serviced nine apartments.

Defendant managed the apartment personally and, in rendering services necessary for upkeep on the building that would enable renting the apartment, he cleared the ice and snow from the premises, but did not remember doing so on December 12, 13 or 14. He knew that someone delivered papers to his tenants.

Defendant's motion for a directed verdict at the close of all the evidence was overruled and the jury rendered a verdict for plaintiffs for $5,000.

The Court of Appeals affirmed the judgment rendered on that verdict but found its judgment to be in conflict with the judgment of the Court of Appeals for Montgomery County in Straley v. Keltner (1959), 109 Ohio App. 51, 164 N.E.2d 1186, and therefore, as required by Section 6 of Article IV of the Constitution of Ohio, the Court of Appeals certified the record and its judgment to this court for final determination.

Robert D. Holmes, George E. Tyack and Thomas M. Tyack, Columbus, for appellees.

Wiles, Doucher, Tressler, Martin & Ford, and Paul W. Martin, Columbus, for appellant.

TAFT, Chief Justice.

Both sides apparently concede that Mark was a business invitee of the defendant's tenants. The only cause of Mark's fall alleged in the pleadings or indicated by the evidence was the natural accumulation of ice and snow on the steps and on the porch at the top of those steps.

Paragraph two of the syllabus in Debie v. Cochran Pharmacy-Berwick, Inc. (1967), 11 Ohio St.2d 38, 227 N.E.2d 603, reads:

'The mere fact standing alone that the owner or occupier has failed to remove natural accumulations of snow and ice from private walks on his business premises for an unreasonable time does not give rise to an action by a business invitee who claims damages for injuries occasioned by a fall thereon.'

The Debie case was followed in Allison v. Wnek (1967), 12 Ohio App.2d 97, 231 N.E.2d 332. Prior to our holding in the Debie case, there had been similar holdings by our Courts of Appeals. Steinbeck v. John Hauck Brewing Co. (Hamilton County 1916), 7 Ohio App. 18; Turoff v. Richman (Cuyahoga County 1944), 76 Ohio App. 83, 61 N.E.2d 486; Wise v. A. & P. Tea Co. (Franklin County 1953), 94 Ohio App. 320, 115 N.E.2d 33; Martinelli v. Cua (Franklin County 1692), 115 Ohio App. 151, 184 N.E.2d 514; Levine v. Hart Motors, Inc. (Columbiana County 1955), Ohio App., 143 N.E.2d 602, 75 Ohio Law Abst. 265, 143 N.E.2d 602; Herbst v. Y. W. C. A. (Stark County 1936), 57 Ohio App. 87, 11 N.E.2d 876.

See also Chase v. City of Cleveland (1886), 44 Ohio St. 505, 9 N.E. 225; City of Norwalk v. Tuttle (1906), 73 Ohio St. 242, 76 N.E. 617, and McCave v. City of Canton (1942), 140 Ohio St. 150, 42 N.E.2d 762, relating to the duty of a municipality to remove ice and snow from its streets and sidewalks.

The contrary holding in Rainey v. Harshbarger (Hancock County 1963), 7 Ohio App.2d 260, 220 N.E.2d 359, was the basis for certification to this court in the Debie case.

The rule stated in paragraph two of the syllabus of the Debie case necessarily follows from well-settled principles of law defining the obligations of an occupier of premises to a business invitee.

Thus in Prosser, Law of Torts (3 Ed.1964), 403, it is stated:

'* * * In the usual case, there is no obligation to protect the invitee against dangers which are known to him, or which are so obvious and apparent to him that he may reasonably be expected to discover them. Against such conditions it may normally be expected that the visitor will protect himself.'

Also, in 2 Harper & James, Law of Torts (1956), 1491, it is stated:

'The knowledge of the condition removes the sting of unreasonableness from any danger that lies in it, and obviousness may be relied on to supply knowledge. Hence the obvious character of the condition is incompatible with negligence in maintaining it. If plaintiff happens to be hurt by the condition, he is barred from recovery by lack of defendant's negligence towards him, no matter how careful plaintiff himself may have been.'

Section 343 of the Restatement of the Law of Torts (2d) reads, so far as pertinent:

'A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

'* * *

'(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

'* * *'

The danger from ice and snow is an obvious danger and an occupier of premises should expect that an invitee on his premises will discover and realize that danger and protect himself against it.

As stated by Shauck, J., in City of Norwalk v. Tuttle, supra, 73 Ohio St. 242, at page 245, 76 N.E. 617, at page 618:

'In a climate where the winter brings frequently recurring storms of snow and rain and sudden and extreme changes in temperature, these dangerous conditions appear with a frequency and suddenness which defy prevention and, usually, correction. Ordinarily they disappear before correction would be practicable * * *. To hold that a liability results from these actions of the elements would be the affirmance of a duty which it would often be impossible, and ordinarily impracticable * * * to perform.'

There is language in the opinion of Oswald v. Jeraj (1946), 146 Ohio St. 676, 67 N.E.2d 779, which might support the judgment of the Court of Appeals in the instant case. However, as stated by Brown, J., in Debie v. Cochran Pharmacy-Berwick, Inc., supra, 11 Ohio St.2d 38, 227 N.E.2d 603, in distinguishing the Oswald case, at page 41, to page 606 of 227 N.E.2d, '* * * This case is different from a landlord-tenant situation * * * where the action is by the tenant, and the landlord has undertaken to remove snow and ice within a reasonable time.' Each paragraph of the syllabus of the Oswald case is either limited to an action by the tenant against the landlord or to the duty owed by the landlord to the tenant. It is apparent that the duty of the landlord to the tenant as to removal of snow and ice was there based upon an implied agreement between them. Even if there is evidence which might support a finding of such an agreement in the instant case, there is nothing to indicate that such agreement was to be for the benefit of business invitees of the tenant. See annotation 26...