Turoff v. Richman

• Decision Date: 11 December 1944
• Citation: 61 N.E.2d 486,76 Ohio App. 83
• Parties: TUROFF v. RICHMAN et al.
• Court: Ohio Court of Appeals

61 N.E.2d 486

76 Ohio App. 83

TUROFF v. RICHMAN et al.

Court of Appeals of Ohio, Eighth District, Cuyahoga.

December 11, 1944

A. H. Dudnik, of Cleveland, for plaintiff-appellee.

McKeehan Merrick, Arter & Stewart, of Cleveland, for defendant-appellants.

SKEEL Judge.

The plaintiff was a tenant in defendant's apartment house located on East 106th Street in the City of Cleveland. The suite occupied by the plaintiff was on the first floor. There were two entrances. The front entrance was through a vestibule on the front of the building facing East 106th Street and the rear entrance was from the kitchen through an areaway which led to the north side of the building. There was a wide driveway maintained by the defendant for the use of all the tenants of the building and their invitees, along the north side of the building leading from the street to the garages in the rear. This driveway was used by pedestrians going to and from the rear entrance to the plaintiff's suite and others similarly situated.

On the morning of January 7, 1943, at about ten o'clock, the plaintiff left her suite by the rear door to go shopping. She passed through the areaway to the said driveway and then started to walk toward the street. She had not taken more than a step or two when she slipped and was thereby injured.

At the time of the fall the driveway was covered with snow. It had been snowing for a week or more and on the night before the accident about two inches of snow had fallen. The plaintiff claims that under the newly fallen snow the driveway was covered with ice.

The defendant had not cleaned the ice and snow from the driveway and automobile traffic had packed it down in driving to and from the garages. The plaintiff had used the driveway in going to and from her rear entrance at least once every day for at least a week preceding the day of the accident. Upon trial the jury returned a verdict for the plaintiff.

There is no claim in this case that there was any defect in the construction of the driveway or that it was maintained in a dangerous condition, except as to such dangers as were created by the natural accumulation of ice and snow.

It is the claim of the plaintiff that the defendants were negligence in failing to remove from the driveway the ice and snow that had accumulated there from natural causes and that such negligence on their part was the proximate cause of her injuries.

There seems to be no reported case in Ohio dealing with this question, although the rule with regard to the accumulation of ice and snow from natural causes on public sidewalks is well settled in this State.

In the case of Chase v. City of Cleveland, 44 Ohio St. 505 9 N.E. 225, 58 Am.Rep. 843, the court held: 'In a suit against a municipal corporation to recover for injuries occasioned by falling upon a slippery sidewalk, allegations in the petition which aver that the defendant is a city of the first class; that the street where the accident occurred is a public highway within the corporate limits; that, upon a sidewalk in front of property of a private owner, the city negligently suffered ice and frozen snow to accumulate, and for a number of days to be beaten smooth and slippery, and for that reason dangerous to those passing along it, and to so remain for some days, of which condition the city had or might have informed itself in time to have made the sidewalk safe before the accident,--are not sufficient to show negligence.' See also, City of Norwalk v. Tuttle, 73 Ohio St. 242, 76 N.E. 617.

Likewise the Ohio courts have considered the question of the liability of the abutting property owner for failure to remove ice and snow from the public sidewalk in front of his premises, in violation of the provisions of a city ordinance. In all of these cases the courts have held that the violation of such an ordinance does not give rise to a cause of action against the property owner for injuries sustained by one who is injured by slipping and falling on such icy sidewalk.

29 Ohio Juris. 438, parag. 42: 'In ordinance cases, a limitation upon the general rule that the violation of a statute or ordinance is negligence per se, has been suggested. It is declared that the rule that the violation of a statute or ordinance is negligence per se is limited to cases of active conduct and that it does not apply where the conduct of defendant is entirely passive. Accordingly, it does not apply where the defendant fails to remove snow from the sidewalk in violation of a municipal ordinance.'

And in Steinbeck v. The John Hauck Brewing Co., 7 Ohio App. 18, the court held: 'An owner who fails...