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affirming reversal of summary judgment in favor of the defendant railroad corporation because the plaintiff police officer was injured in a railroad right-of-way through a public sidewalk that the defendant was statutorily obligated to keep in good repair for the benefit of all members of the public
Summary of this case from Morin v. Bell Court Condominium Assn., Inc.Opinion
No. 87-387
Decided February 17, 1988.
Negligence — Real property — Railroads — Policeman who enters premises in performance of his official duties is an invitee, when — Area of premises held open for use of general public.
O.Jur 3d Premises Liability § 27.
1. A police officer who enters upon privately owned land in the performance of his official duty, and suffers harm due to a condition of a part of the land held open to the public, is an invitee in the same manner as other private citizens lawfully using such land. ( Scheurer v. Trustees of the Open Bible Church, 175 Ohio St. 163, 23 O.O. 2d 453, 192 N.E.2d 38, distinguished.)
O.Jur 3d Railroads §§ 306, 334.
2. A railroad company may be liable for negligence to a police officer who enters upon such company's public right-of-way in the performance of his official duty, and is injured due to the company's failure to build and keep in good repair such right-of-way. (R.C. 4955.20 and Porter v. Toledo Terminal RR. Co., 152 Ohio St. 463, 40 O.O. 485, 90 N.E.2d 142, paragraph two of the syllabus, construed and followed.)
APPEAL from the Court of Appeals for Hamilton County.
On November 26, 1983, between 1:00 and 2:00 a.m., Officer Daniel J. Brady and his partner, Officer Michael F. Wheeler, of the city of Norwood Police Department, were in an unmarked police car pursuing a robbery suspect within the Norwood city limits. As Officer Wheeler turned the police car south onto Ivanhoe Avenue, the suspect ran past the car on foot in the opposite direction. Officer Wheeler immediately stopped the car on a railroad crossing to turn and continue the chase. In the few moments the car was stopped, straddling two sets of railroad tracks owned by Consolidated Rail Corp. ("Conrail"), Officer Brady leaped from the passenger's side of the police car, shotgun in hand, to give chase on foot. As he did so, the car started forward and he fell to the ground, striking his right knee on a piece of spare, loose rail lying near the tracks, causing him serious, permanent injuries.
On June 5, 1985, Officer Brady and his wife filed a negligence action against Conrail and Norfolk Western Railway Company, seeking damages for Officer Brady's personal injuries and Mrs. Brady's loss of services and consortium claim. On November 7, 1985, Conrail moved for and was later granted summary judgment, the trial court finding that Officer Brady was a mere licensee when he entered on Conrail's property and that the Bradys presented no evidence of a breach of the duty owed to such licensee.
The court of appeals specifically declined to discuss the duty of care that was owed by Conrail to the plaintiff but reversed the trial court, finding that an underlying question of fact existed as to whether the rail upon which Officer Brady fell was within the public right-of-way, implicitly calling into question the applicable standard of care owed to Officer Brady.
The cause is now before this court upon the allowance of a motion to certify the record.
Brown, Lippert Heile, C. Donald Heile and Marquette D. Evans, for appellees.
Dinsmore Shohl, Gary D. Bullock and Kathleen Fehr McClure, for appellant.
In determining whether the trial court properly granted summary judgment to appellant Conrail below, we must first decide whether a police officer injured in the performance of his duties on a railroad right-of-way is a licensee or an invitee with respect to the railroad. In Scheurer v. Trustees of the Open Bible Church (1963), 175 Ohio St. 163, 23 O.O. 2d 453, 192 N.E.2d 38, paragraph one of the syllabus, this court held that "[a] policeman entering upon privately owned premises in the performance of his official duty without an express or implied invitation enters under authority of law and is a licensee." However, for the reasons which follow, we hold that the liability of a landowner to a police officer who enters the land in the performance of his official duty, and suffers harm due to a condition of a part of the land held open to the public, is the same as the liability of the owner to an invitee. Here, no material question of fact exists as to the location of the stray rail, as Conrail concedes that it was within the public right-of-way, and we thus affirm the court of appeals' reversal.
The policeman in Scheurer was injured when he fell into an open, unfenced excavation on the church's property one evening while investigating a radio call that the church was being burglarized. In holding the policeman to be a mere licensee, this court was guided by the fact that police officers, like firemen to whom the rule also extends, are likely to enter premises at unforeseeable times and venture into unlikely places, typically in emergency situations. Thus, the landowner cannot reasonably anticipate their presence nor prepare the premises for them, and the police officer must take the premises as the owner himself uses them. "Policemen and firemen come on the premises at any hour of the day or night and usually because of an emergency, and they go to parts of the premises where people ordinarily would not go. Their presence can not reasonably be anticipated by the owner, since there is no regularity as to their appearance and in most instances their appearance is highly improbable." Scheurer, supra, at 171, 23 O.O. 2d at 458, 192 N.E.2d at 43. See, also, Prosser Keeton, Law of Torts (5 Ed. 1984) 413, 431; Case Note, Hubbard v. Boelt [(1980), 28 Cal.3d 480, 169 Cal.Rptr. 706, 620 P.2d 156]: The Fireman's Rule Extended (1981), 9 Pepperdine L. Rev. 197, 198-201; Comment, Negligence Actions by Police Officers and Firefighters: A Need for a Professional Rescuers Rule (1978), 66 Calif. L. Rev. 585, 589-593. The standard of care owed to a police officer in this position is necessarily limited, and "* * * there is no liability, where the owner of the premises was not guilty of any willful or wanton misconduct or affirmative act of negligence; there was no hidden trap or violation of a duty prescribed by statute or ordinance (for the benefit of the policeman) concerning the condition of the premises; and the owner did not know of the policeman's presence on the premises and had no opportunity to warn him of the danger." Scheurer, supra, at paragraph two of the syllabus.
However, where a policeman enters into an area of the landowner's property which is held open for the use of the general public, where it is reasonable for the landowner to expect police presence and prepare for it, the police officer stands in the same position as others being an invitee, albeit implied, toward whom the landowner must exercise ordinary care. This logical exception to the "Fireman's Rule" has been adopted in a few of our sister jurisdictions and is embodied in Section 345(2) of 2 Restatement of the Law 2d, Torts (1965) 227, as follows:
See, e.g., Mile High Fence Co. v. Radovich (1971), 175 Colo. 537, 489 P.2d 308; Ryan v. Chicago N.W. RR. Co. (1942), 315 Ill. App. 65, 42 N.E.2d 128; Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill.2d 552, 328 N.E.2d 538; Nared v. School Dist. of Omaha (1974), 191 Neb. 376, 215 N.W.2d 115; Caroff v. Liberty Lumber Co. (1977), 146 N.J. Super. 353, 369 A.2d 983; Meiers v. Fred Koch Brewery (1920), 229 N.Y. 10, 127 N.E. 491; Annotation (1984), 30 A.L.R. 4th 81; Prosser Keeton, supra, at 432, fn. 52.
"The liability of a possessor of land to a public officer or employee who enters the land in the performance of his public duty, and suffers harm because of a condition of a part of the land held open to the public, is the same as the liability to an invitee."
The implied invitation to the public to enter onto private premises, be it by an entryway, an alley, or a right-of-way, permits members of the public to reasonably assume that ordinary, reasonable care has been used to make the land safe for their reception. See Section 345 of the Restatement of Torts, supra, at 229, Comment e.
The parties herein do not dispute that Officer Brady was injured on property owned by Conrail and, specifically, that he was injured in the area where the railroad right-of-way intersects what would have been the public sidewalk. "Ordinarily, the duty to keep streets, including sidewalks, open, in repair and free from nuisance rests upon a municipality and not upon the abutting owners." Eichorn v. Lustig's, Inc. (1954), 161 Ohio St. 11, 13, 52 O.O. 467, 468, 117 N.E.2d 436, 437. However, railroad companies are given such duty of care where, as here, their tracks intersect a public way, pursuant to R.C. 4955.20, which provides:
"Companies operating a railroad in this state shall build and keep in repair good and sufficient crossings over or approaches to such railroad, its tracks, sidetracks, and switches, at all points where any public highway, street, lane, avenue, alley, road, or pike is intersected by such railroad, its tracks, sidetracks, or switches. Such companies shall build and keep in repair good and sufficient sidewalks on both sides of streets intersected by their railroads, the full width of the right-of-way owned, claimed, or occupied by them. * * *
"* * * Such crossings, approaches, and sidewalks shall be constructed, repaired, and maintained by the railroad companies as so ordered."
R.C. 4955.20 imposes general requirements on railroads to keep all rights-of-way safe and in good repair for the benefit of the general public using such crossings, "and negligence is the basis of liability thereunder," Porter v. Toledo Terminal RR. Co. (1950), 152 Ohio St. 463, 40 O.O. 485, 90 N.E.2d 142, paragraph two of the syllabus (construing analogous former G.C. 8843 and 8914). This would be so even though any improvement to such crossing, approach or sidewalk had not been ordered by a township or municipality according to this section of law. Thus, a railroad company may be liable for negligence to a police officer, or any other invitee, who enters upon such company's public right-of-way and is injured due to the company's failure to build and keep in good repair such right-of-way.
We find no persuasive reason to hold defendant railroad company to a lesser standard of care with respect to police officers than that which they owe to the general public. Therefore, we must remand the cause for further proceedings consistent with our determination that since Officer Brady was injured within the railroad right-of-way, he was an implied invitee.
The trial court erred in granting summary judgment to Conrail, and the judgment of the court of appeals, as modified herein, is hereby affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, LOCHER, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.