Summary
rejecting several prior unreported Court of Claims cases and holding that one who visits an inmate at a state prison is an invitee because that person entered under public invitation in accord with the purpose for which the institution was held open to the public
Summary of this case from Shotts v. Jackson CountyOpinion
No. 87-05166.
Decided February 13, 1989.
Jonathan Goodwin, for plaintiffs.
Anthony J. Celebrezze, Jr., Attorney General, and Eric A. Walker, Assistant Attorney General, for defendant.
Plaintiffs, Helen and Paul Blair, filed this action on April 24, 1987, alleging that the defendant's negligent failure to keep the parking lot of the Lebanon Correctional Institute in a reasonably safe condition was the proximate cause of an accidental fall in which plaintiff Helen Blair sustained personal injury. Alternatively, the plaintiffs contend that the condition of the defendant's parking lot constituted a "qualified nuisance" under Ohio law and the defendant's qualified nuisance was the proximate cause of plaintiff Helen Blair's injuries.
Plaintiff Paul Blair alleges that as a result of his wife's personal injuries and her consequent pain and suffering, he has been deprived of his wife's society, companionship, services, and conjugal affections.
On March 13, 1987, at approximately 12:30 p.m., the plaintiffs were leaving the Lebanon Correctional Institute after visiting their son, Joey Blair, who was an inmate at that facility. While walking to their automobile, plaintiff Helen Blair fell and sustained personal injury. It is the plaintiffs' contention that the defendant's parking lot was in such an unreasonable state of disrepair as to constitute the proximate cause of Helen Blair's fall and the resulting personal injury.
The issues of liability and damages were tried before this court on January 9, 1989. The court has considered the evidence and arguments presented and renders the following decision.
Findings of Fact
1. On March 3, 1987, after visiting with her son, Joey Blair, at the Lebanon Correctional Institute ("LCI"), plaintiff Helen Blair sustained personal injury when she fell in the LCI parking lot;
2. Plaintiff Helen Blair was on the grounds of LCI to visit her son, Joey Blair, who was an inmate at LCI;
3. As a result of the March 13, 1987 fall, plaintiff Helen Blair was transported, by life squad, to the Middletown Regional Hospital where she was hospitalized until March 16, 1987;
4. During her March 13 through March 16, 1987 hospitalization, plaintiff Helen Blair was diagnosed as having sustained compression fractures of the sixth and ninth thoracic vertebrae;
5. As a result of continuing pain and discomfort from the March 13, 1987 fall, plaintiff Helen Blair was hospitalized a second time from April 14, 1987 through April 20, 1987;
6. As a result of plaintiff Helen Blair's injuries and her consequent hospitalization, plaintiff Helen Blair has incurred medical expense in the excess of $5,178;
7. Plaintiff Paul Blair has experienced a loss of his wife's consortium;
8. Plaintiffs Helen and Paul Blair had visited their son at LCI and walked on the parking lot at least forty times during the three and one-half years preceding the March 13, 1987 accidental fall;
9. The parking lot at Lebanon Correctional Institute has not been substantially altered during the last eleven years;
10. The weather on March 13, 1987, in the area of LCI, was clear, cold, and dry;
11. The plaintiffs were on the defendant's property pursuant to official policies which encourage friends and relatives to visit inmates;
12. The defendant has especially designed facilities and procedures to accommodate visitors at LCI;
13. The plaintiff has failed to prove by a preponderance of the evidence what caused plaintiff to fall. Whether she fell as a result of a loose piece of gravel or a depression in the sidewalk area which abutted the area where automobiles were parked is debatable. Whatever the cause, it was clearly visible to plaintiff.
Conclusions of Law
In Ohio, the duty which an owner or occupier of land owes to a visitor on his property depends upon the visitor's status as either an invitee, licensee, or trespasser. Patete v. Benko (1986), 29 Ohio App.3d 325, 29 OBR 452, 505 N.E.2d 647.
It is the duty of the owner or occupier of premises to exercise ordinary or reasonable care for the safety of "invitees," so that the premises are in a reasonably safe condition for use in a manner consistent with the purposes of the invitation. Drexler v. Labay (1951), 155 Ohio St. 244, 44 O.O. 254, 98 N.E.2d 410; Lampe v. Magoulakis (1953), 159 Ohio St. 72, 50 O.O. 61, 111 N.E.2d 7.
Regarding licensees, it is the duty of the owner or occupier of premises to refrain from wantonly, willfully, or intentionally injuring him, to avoid exposing him to known hazards or hidden dangers, to refrain from any affirmative act of negligence, and to warn him of any dangers. 76 Ohio Jurisprudence 3d (1987), Premises Liability, Section 9.
A "licensee" is one who goes upon land of another by permission and acquiescence, for his own pleasure, convenience, or benefit, and not by invitation. Hannan v. Ehrlich (1921), 102 Ohio St. 176, 131 N.E. 504; Karns v. Trostel, (1932), 44 Ohio App. 498, 186 N.E. 405; Light v. Ohio University (1986), 28 Ohio St.3d 66, 28 OBR 165, 502 N.E.2d 611.
Regarding trespassers, one owes a trespasser no duty except to refrain from willful or wanton wrongdoing. Wheeling Lake Erie RR. Co. v. Harvey (1907), 77 Ohio St. 235, 83 N.E. 66.
An "invitee," in tort law, means a business visitor, that is, one rightfully on the premises for purposes in which the occupant of the premises has a beneficial interest. Scheibel v. Lipton (1951), 156 Ohio St. 308, 46 O.O. 177, 102 N.E.2d 453; Light v. Ohio University, supra. An "invitee" is also anyone expressly or impliedly invited to come on the premises. Englehardt v. Philipps (1939), 136 Ohio St. 73, 15 O.O. 581, 23 N.E.2d 829; Ohm v. Miller (1928), 31 Ohio App. 446, 167 N.E. 482. The general rule is that if one comes upon the premises with the owner's consent, for some purpose in which the owner may be interested, he is deemed to have been expressly or impliedly invited. Hager v. Cleveland Trust Co. (1928), 29 Ohio App. 32, 163 N.E. 46.
In the case at bar, the defendant has relied on this court's decision in Workman v. Orient Correctional Inst. (Dec. 9, 1987), Ct. of Claims No. 85-09903, unreported, for the proposition that visitors of correctional institutions are licensees. In Workman, supra, the court, having found that the plaintiffs visited the institution with permission, without being assessed a fee for entering, and without reason beneficial to the institution, relied on Bowins v. Euclid General Hosp. (1984), 20 Ohio App.3d 29, 30, 20 OBR 31, 32, 484 N.E.2d 203, 204, citing Keesecker v. G.M. McKelvey Co. (1943), 141 Ohio St. 162, 166, 25 O.O. 266, 268, 47 N.E.2d 211, 214, to find that the plaintiff was a licensee. In Keesecker v. G.M. McKelvey, supra, the court held: "A `licensee' is one who stands in no contractual relationship to the owner or occupier of premises, but is permitted or tolerated thereon, expressly, impliedly, or inferentially, merely for his own interest, convenience, or pleasure or for that of a third person."
The decision in Workman v. Orient Correctional Inst. followed the decision in Cooley v. Dept. of Rehab. Corr. (Aug. 28, 1986), Ct. of Claims No. 84-01721, unreported. In Cooley, supra, the court found that the plaintiff and her mother came to the Southern Ohio Correctional Facility to visit a friend and that "neither was there for any reason beneficial to the institution." Thus, the court concluded that the plaintiff was a "licensee" and to her was owed the duty only of not causing injury by willful or wanton misconduct and to warn of hidden danger that defendant knew or ought to have known existed.
The decisions in Workman, supra, and in Colley, supra, which found visitors to correctional institutions to be "licensees," were based on what has been referred to as the "economic benefit" or "mutual benefit" test for invitees. Page, The Law of Premises Liability (2 Ed. 1988) 66, Section 4.2. Thus, the court, after analyzing the extent to which the plaintiffs' presence at the defendant correctional institutions was of benefit to the defendants and finding that there was no benefit to the defendants, concluded that the plaintiffs were licensees. Workman v. Orient Correctional Inst. (Dec. 9, 1987), Ct. of Claims No. 85-09903, unreported. Under the "economic benefit" or "mutual benefit" test, the entrant would be considered an "invitee" only if he entered land for a purpose directly or indirectly connected with business dealings between himself and the possessor. 2 Restatement of the Law, Torts (1934), Section 332. It was the business-dealing aspect which gave rise to an implied assurance of safety, imposing upon the landowner a duty to exercise reasonable care to keep the premises in a reasonably safe condition for the invitee. 2 Restatement of the Law, Torts (1934), Section 343. The duty was essentially the price the possessor paid as consideration for the actual or potential economic advantage brought by the invitee's visit. James, Tort Liability of Occupiers of Land: Duties Owed to Licensees and Invitees (1954), 63 Yale L.J. 605, 612. In Workman and in Cooley, the court found that the entrants' visit did not include any actual or potential economic advantage, nor any other benefit to the defendant, and concluded that the duty owed to "invitees" was not owed to those entrants. Workman v. Orient Correctional Inst., supra; Cooley v. Dept. of Rehab. Corr., supra.
However, the "economic benefit" or "mutual benefit" test is not the only test of "invitee" status. Restatement of the Law 2d, Torts (1965), Section 332, defines the term "invitee" as follows:
"1. An invitee is either a public invitee or a business visitor;
"2. A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public;
"3. A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of land."
The crucial elements are thus invitation and purpose. When these elements are present, the possessor will be held to have extended an invitation, in the legal sense of the term, and the visitor will be deemed to be an "invitee." Page, The Law of Premises Liability (2 Ed. 1988) 68, 69, Section 4.2. That conclusion is in accord with the reasoning of the Ohio Supreme Court enunciated in Englehardt v. Philipps, supra, that an invitee is anyone expressly or impliedly invited to come on the premises. Thus, providing an "economic benefit" is no longer the sole test for determining whether a visitor qualifies as an "invitee." Invitee status can also be enjoyed by anyone who enters land pursuant to an invitation with a purpose which is related to the possessor's business.
To qualify as an element of invitee status, an invitation is any conduct on the part of the possessor justifying another in believing that the possessor welcomes him and desires his entry. This definition applies to invitations which are public and private, express and implied. 2 Restatement of the Law 2d, Torts (1965), Section 332, Comment b.
The second prerequisite to a finding of "invitee" status is that of purpose. Even though the possessor has expressly or impliedly invited a person to enter the premises, the court will not grant invitee status unless the entrant comes upon the land for the particular purpose for which the invitation was extended. Page, supra, at 71, Section 4.2. If the visitor enters under a public invitation, his purpose must be that for which the premises are held open to the public. 2 Restatement of the Law 2d, Torts (1965), Section 332, Comment d.
Because the basis for invitee status is the implied assurance of safety conveyed to the visitor, the test for construing the terms of an invitation is an objective one and depends upon how a reasonable person would interpret the purpose for which the land is held open. 2 Restatement of the Law 2d, Torts (1965), Section 332, Comment c. The possessor's conduct, the nature of the business conducted upon the premises, the arrangement or design of the premises and any relevant custom prevailing in the community are all factors used to determine whether an invitation has been extended as well as to determine what a reasonable person in the shoes of the entrant would see as the purpose for which the possessor desires the visitors to enter. Page, The Law of Premises Liability (2 Ed. 1988) 69, 71, Section 4.2.
Applying the "invitation and purpose" test, of invitee status, to the facts in the case sub judice, this court finds that plaintiff Helen Blair was an "invitee." This court will not follow Workman, or Cooley, supra, and, therefore, concludes that the plaintiff was invited to come to LCI and that the plaintiff came to LCI for the particular purpose for which the invitation was extended. In arriving at this conclusion, the court takes judicial notice that correctional institutions encourage relatives and friends to visit inmates. Additionally, evidence introduced at trial indicates that the defendant has promulgated policies, provided staff persons, and arranged their physical facilities all to accommodate visitors. Further, Ohio Adm. Code 5120-9-15(A) provides: "Each institution shall compile and maintain an approved visitors list for each inmate."
Finally, the court finds that plaintiff Helen Blair entered under a public invitation and that her purpose, visiting her son, was in accord with the purpose for which the premises are held open to the public. Thus, plaintiff Helen was an "invitee" and the defendant had a duty to exercise ordinary or reasonable care for the plaintiff's safety so that the premises are kept in a reasonably safe condition for use in a manner consistent with the purpose of the invitation. Drexler v. Labay, supra; Lampe v. Magoulakis, supra.
However, the occupant of premises is not an insurer of an invitee's safety. Holdshoe v. Whinery (1968), 14 Ohio St.2d 134, 43 O.O.2d 240, 237 N.E.2d 127, 43 A.L.R.3d 943, affirming (1966), 8 Ohio App.2d 305, 37 O.O.2d 332, 222 N.E.2d 435; Howard v. Rogers (1969), 19 Ohio St.2d 42, 48 O.O.2d 52, 249 N.E.2d 804. The invitee is not protected against all hazards, nor relieved of all duty to care for his own safety. The invitor's duty to protect is reduced to the extent that a duty of self-protection rests on the invitee. Ivory v. Cincinnati Baseball Club Co. (1939), 62 Ohio App. 514, 29 Ohio Law Abs. 509, 15 O.O. 357, 24 N.E.2d 837. The occupant has no duty to protect an invitee against dangers known to the latter, or which are so obvious that it is reasonable to expect he will discover them and protect himself. Sidle v. Humphrey (1968), 13 Ohio St.2d 45, 42 O.O.2d 96, 233 N.E.2d 589, 32 A.L.R.3d 1, reversing (1966), 8 Ohio App.2d 25, 37 O.O.2d 40, 220 N.E.2d 678.
In this case, the condition of the parking lot of LCI was known to the invitee. The invitee, plaintiff Helen Blair, testified that the condition of the parking lot had existed over the three and one-half year period during which she visited the institution forty to fifty times. Further, the court finds that the condition of the parking lot was so obvious that it would be reasonable to expect that a visitor would discover the less than smooth surface and walk across the parking lot in a manner consistent with the visitor's duty of self-protection. Finally, the Ohio Supreme Court has held that "* * * if the owner or occupier and the invitee are equally aware of the dangerous condition and the invitee voluntarily exposes himself to the hazard, the owner or occupier will not be liable. See DeAmiches v. Popczun (1973), 35 Ohio St.2d 180 [64 O.O.2d 106, 299 N.E.2d 265], paragraph two of the syllabus." Bowins v. Euclid General Hosp. (1984), 20 Ohio App.3d 29, 31, 20 OBR 31, 33, 484 N.E.2d 203, 205. Thus, having found that: the ostensibly dangerous condition was known to the invitee; the condition of the parking lot was so obvious that it was reasonable for the invitor to expect the invitee to discover it; and, invitees have a duty of self-protection which reduces the invitor's duty of reasonable care, the court concludes that the defendant did not breach its duty of ordinary and reasonable care.
As an alternative to the plaintiff's contention that the defendant was negligent, plaintiff contends that the defendant's maintenance of a "qualified nuisance" was a proximate cause of the plaintiff's fall and her resulting injuries and damages.
A "qualified nuisance," or nuisance dependent upon negligence, consists of an act lawfully but so negligently or carelessly done as to create a potential and unreasonable risk of harm, which in due course results in injury to another. Taylor v. Cincinnati (1944), 143 Ohio St. 426, 28 O.O. 369, 55 N.E.2d 724, 155 A.L.R. 44; Metzger v. Pennsylvania, Ohio Detroit Rd. Co. (1946), 146 Ohio St. 406, 32 O.O. 450, 66 N.E.2d 203.
In an action based on the maintenance of a "qualified nuisance," the standard of care 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 dissimilar from the duty toward social guests aware of the existence of such a condition. 72 Ohio Jurisprudence 3d (1987), Nuisances, Section 5.
The duty owed to "business invitees" is to exercise ordinary or reasonable care for the plaintiff's safety so that the premises are kept in a reasonably safe condition for use in a manner consistent with the purpose of the invitation. Drexler v. Labay, supra; Lampe v. Magoulakis, supra.
However, the [invitee] is not protected against all hazards, nor relieved of all duty to care for his own safety. The invitor's duty to protect is reduced to the extent that a duty of self-protection rests on the invitee. Ivory v. Cincinnati Baseball Club Co., supra. The occupant has no duty to protect an invitee against dangers known to the latter, or which are so obvious that it is reasonable to expect he will discover them and protect himself. Sidle v. Humphrey, supra.
As discussed earlier in this opinion, plaintiff Helen Blair gave testimony which indicates that she was aware of the condition of the parking lot. The plaintiff testified that she had visited Lebanon Correctional Institute and used the parking lot forty to fifty times, over a three and one-half year period, prior to the date of her fall. Thus, Helen Blair knew of the condition of the parking lot and the defendant had no duty to protect the plaintiff from the condition of the parking lot, which condition the plaintiff was aware of. Furthermore, the court concludes the parking lot was not in a dangerous condition.
Having determined that the defendant did not breach the duty of ordinary and reasonable care owed to plaintiff Helen Blair, the defendant is not liable for her injuries nor for the loss, by plaintiff Paul Blair, of her consortium. Therefore, judgment is hereby entered in favor of the defendant, Department of Rehabilitation and Correction.
Alternatively, if defendant was negligent, the negligence of the plaintiff exceeds any negligence of defendant.
The plaintiffs have failed to prove by a preponderance of the evidence the allegations set forth in the complaint.
Judgment for defendant.
FRED J. SHOEMAKER, J., retired, of the Franklin County Court of Common Pleas, sitting by assignment.