Simmers v. Bentley Constr. Co.

• Decision Date: 09 September 1992
• Docket Number: No. 91-1500,91-1500
• Citation: 64 Ohio St.3d 642,597 N.E.2d 504
• Parties: SIMMERS et al., Appellees, v. BENTLEY CONSTRUCTION COMPANY, Appellant, et al.
• Court: Ohio Supreme Court

Page 642

64 Ohio St.3d 642

597 N.E.2d 504

SIMMERS et al., Appellees, v. BENTLEY CONSTRUCTION COMPANY, Appellant, et al.

No. 91-1500.

Supreme Court of Ohio.

Submitted May 19, 1992.

Decided Sept. 9, 1992.

SYLLABUS BY THE COURT

An independent contractor who creates a dangerous condition on real property is not relieved of liability under the doctrine which exonerates an owner or occupier of land from the duty to warn those entering the property concerning open and obvious dangers on the property.

On August 27, 1987, fourteen-year-old plaintiff-appellee Stephen Simmers was seriously injured when he fell through a hole in a railroad bridge owned by CSX Transportation, Inc. ("CSX"). The bridge supported an abandoned railroad track and a walkway beside it that ran the length of the bridge. The walkway was approximately four and three-quarters feet wide with a four-and-a-half-foot-high guardrail to protect people from falling. The bridge spans a creek, about thirty feet above the water. The bridge interconnects public parks, community baseball diamonds, a Boy Scout camp, and fishing areas.

At the time of the accident, defendant-appellant Bentley Construction Company ("Bentley") was under contract with CSX to remove cross-ties, spikes, and plates left when the railroad removed tracks near the bridge. Bentley did not contract to remove any materials from the bridge. For purposes of this appeal only, Bentley concedes that sometime between June 22, 1987 and August 22, 1987, a Bentley crew member attempted to drive a fifteen-ton front-end loader across the walkway portion of the bridge. The front-end loader fell through the boards of the walkway and became stuck, leaving a fifteen-and-a-half-by-four-foot hole in the walkway. Bentley did not attempt to repair or barricade the hole. David Bentley, Bentley's owner, knew that children used the bridge on a regular basis.

The accident occurred when Stephen and his friend, Andy Thomas, were walking across the bridge. Both boys had been on the bridge many times. Andy knew the hole was there and walked around and past it. Stephen, who was several steps behind Andy, did not know about the hole. Because he was adjusting his watch band, Stephen was not looking where he was going and fell through the hole onto the rocks and debris in the river bed below.

On October 12, 1988, Gerald Simmers, Stephen's father, filed suit on behalf of Stephen and himself against defendants CSX and Bentley. Simmers claimed that defendants' negligent creation of the hole and failure to take appropriate safety precautions was the proximate cause of Stephen's injuries. Simmers sought damages for past and future medical expenses, pain and suffering, and lost wages. The trial court granted summary judgment in favor of CSX and dismissed it from the action, finding that CSX owed no duty to Stephen because the hole in the bridge was open and obvious. CSX is not a party to this appeal. ¹ By a separate ruling the trial court also granted summary judgment in favor of Bentley on the ground that the hole was open and obvious.

The court of appeals reversed and remanded, holding the following to be genuine issues of material fact: (1) did Bentley create the hole? (2) was Bentley negligent with regard to creating and/or dealing with the hole? and (3) what was the proximate cause of Stephen Simmers's injuries?

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

Wiles, Doucher, Van Buren & Boyle Co., L.P.A., Paul M. Doucher and Thomas J. Keener, Columbus, for appellees.

Lane, Alton & Horst, Rick E. Marsh and John A. Fiocca, Jr., Columbus, for appellant.

HERBERT R. BROWN, Justice.

The issue before us is whether the trial court properly granted summary judgment to Bentley. Bentley is an independent contractor who concedes for purposes of this appeal that it created a dangerous condition on the railroad bridge. Accordingly we must decide whether Bentley's liability is determined by the rules governing landowner liability or by the ordinary rules of negligence. For the reasons that follow we find that the rules of negligence apply and that summary judgment was improper.

The trial court and the court of appeals determined that CSX, the owner of the bridge, owed no duty to Stephen Simmers because the hole was an open and obvious danger. Bentley argues that this determination became the law of the case. Therefore, Bentley claims, it had no duty to warn of the danger and cannot be held liable for Stephen Simmers's injuries. We disagree.

The rule relieving a defendant from liability for harm resulting from "open and obvious" hazards is a legal doctrine that has developed in suits against property owners by a person injured when he comes on the property. The "open and obvious" doctrine states that an owner or occupier of property owes no duty to warn invitees entering the property of open and obvious dangers on the property. Sidle v. Humphrey (1968), 13 Ohio St.2d 45, 42 O.O.2d 96, 233 N.E.2d 589, at paragraph one of the syllabus; Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203, 18 OBR 267, 480 N.E.2d 474. The rationale behind the doctrine is that the open and obvious nature of the hazard itself serves as a warning. Thus, the owner or occupier may reasonably expect that persons entering the premises will discover those dangers and take appropriate measures to protect themselves. Sidle, supra. ² Historically, a landowner's liability in tort is incident to the occupation or control of the land, which involves the owner's right and power to admit and exclude people from the premises. Wills v. Frank Hoover Supply (1986), 26 Ohio St.3d 186, 188, 26 OBR 160, 162, 497 N.E.2d 1118, 1120; Mitchell v. Cleveland Elec. Illum. Co. (1987), 30 Ohio St.3d 92, 94, 30 OBR 295, 297, 507 N.E.2d 352, 354. The "open and obvious" doctrine, therefore, governs a landowner's duty to persons entering the property--property over which the landowner has the right and power to admit or exclude persons as invitees, licensees, or trespassers.

Bentley was an independent contractor performing services for the owner of the bridge. While Bentley may have had the right to be on, and in the vicinity of, the bridge, it had no property interest in the premises. In fact, it was stipulated that "Bentley Construction Company did not contract to, nor was it responsible, to remove tracks or ties from the bridge in Lexington, Ohio which is the location of this incident." We are not persuaded to extend the "open and obvious" doctrine to persons who conduct activity with the consent of the landowner but who themselves have no property interest in the premises.

Accordingly, we hold that an independent contractor who creates a dangerous condition on real property is not relieved of liability under the doctrine which exonerates an owner or occupier of land from the duty to warn those entering the property concerning open and obvious dangers on the property.

Since Bentley had no property interest in the premises, we must look to the law of negligence to determine Bentley's duty of care, and then consider the significance of the factual finding that the hole was open and obvious.

Under the law of negligence, a defendant's duty to a plaintiff depends upon the relationship between the parties and the foreseeability of injury to someone in the plaintiff's position. Huston v. Konieczny (1990), 52 Ohio St.3d 214, 217, 556 N.E.2d 505, 508; Commerce & Industry Ins. Co. v. Toledo (1989), 45 Ohio St.3d 96, 98, 543 N.E.2d 1188, 1192; Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142-143, 539 N.E.2d 614, 616-617; Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77, 15 OBR 179, 180, 472 N.E.2d 707, 710. Injury is foreseeable if a defendant knew or should have known that its act was likely to result in harm to someone. Huston, supra; Commerce & Industry, supra.

For this appeal, Bentley concedes that it created the hole and that the hole was a dangerous condition. Bentley's owner also admits knowing that the public, including children, frequently used the bridge. Therefore, it was foreseeable that someone using the bridge was likely to be injured by falling through the hole. Under the facts stipulated to us, Bentley owed a duty of care to users of the bridge.

Once the existence of a duty is found, a plaintiff must show that the defendant breached its duty of care and that the breach proximately caused the plaintiff's injury. Mussivand v. David (1989), 45 Ohio St.3d 314, 318, 544 N.E.2d 265, 270; Di Gildo v. Caponi (1969), 18 Ohio St.2d 125, 47 O.O.2d 282, 247 N.E.2d 732.

Bentley made no attempt to repair or barricade the hole. Accordingly, there are factual questions which are not properly resolved by summary judgment. One such question is whether a breach of duty resulted from the failure to guard or otherwise protect the hole. See Prentiss v. Kirtz (1977), 54 Ohio App.2d 56, 8 O.O.3d 59, 374 N.E.2d 429. A second is whether the condition of the hole was itself sufficiently discernible to constitute an adequate warning of the danger. See Blair v. Goff-Kirby Co. (1976), 49 Ohio St.2d 5, 3 O.O.3d 4, 358 N.E.2d 634, at syllabus; Paulin v. John R. Jurgensen Co. (1982), 7 Ohio App.3d 273, 7 OBR 354, 455 N.E.2d 524. Even if the hole might have been sufficiently "open and obvious" to relieve a landowner of liability, that determination does not resolve either of the fact questions which must be addressed under the general law of negligence.

In the law of negligence, an "open and obvious" danger can also place affirmative defenses at issue. These would be (1) contributory negligence, and (2) assumption of the risk. Rothfuss v. Hamilton Masonic Temple Co. (1973), 34 Ohio St.2d 176, 63 O.O.2d 270, 297 N.E.2d 105; Briere v. Lathrop Co. (1970), 22 Ohio St.2d 166, 51 O.O.2d 232, 258 N.E.2d 597.

In essence, Bentley argues that Stephen was negligent in failing to protect himself from an open and obvious...