Summary
In Jackson, supra, a business invitee fell at the seam of a sidewalk and a "slowly-inclining wheelchair ramp that abuts part of the sidewalk", and alleged that "the area * * * was shadowed and inhibited her ability to see the drop off."
Summary of this case from Galligan-Dent v. Tecumseh Outdoor DramaOpinion
No. 78-1017
Decided June 13, 1979.
Negligence — Amusement parks — Dangerous conditions — Duty to warn patrons.
APPEAL from the Court of Appeals for Warren County.
As indicated by the Court of Appeals, the pleadings, affidavits and depositions in the trial court suggest the following facts: Charles C. Jackson, plaintiff-appellee herein, was 87 years old when on August 10, 1974, he went with a church group to an amusement park operated by defendant-appellant, Kings Island. Plaintiff decided to take a ride by himself on the Bavarian Beetle, a roller coaster consisting of a two-minute ride in a train of two cars. Plaintiff had not been on a roller coaster since he was a youngster, but he was generally aware of the action of a roller coaster and thought it would be a thrill to ride one again. Plaintiff said that he could not see the crucial part of the track at the bottom of the first drop as he waited in line for about 15 to 20 minutes. There was some evidence that this portion of the track was obstructed from plaintiff's view.
The operators of the Bavarian Beetle took particular notice of the plaintiff, in part because he was dressed somewhat unconventionally in a striped suit and tie, and in part due to his physical condition: plaintiff was particularly old, he walked slowly and jerkily, and he turned his entire body (as opposed to his head only) in addressing those who spoke to him. Plaintiff entered the ride with noticeable stiffness, sitting very erect in his seat with arms braced straight against the safety bar. The only conversation between plaintiff and the operators of the Bavarian Beetle disclosed by the record concerned the number of people in plaintiff's party, with plaintiff indicating that he was alone.
Some of these facts came into evidence as part of a deposition containing statements taken from ride attendants for company records. Despite their hearsay nature, these statements were properly before the court pursuant to R.C. 2317.40, this state's business record's exception to the hearsay rule.
The train of cars was mechanically lifted to the top of the first and highest incline, then dropped sharply and went up a dip; brakes were applied automatically, and the train proceeded into a turn. The change of direction (either vertically in the dip or laterally in the turn, or both) jerked plaintiff. Plaintiff stated that he felt a "pop" in his neck, followed by "terrible pain all through my head." Plaintiff had difficulty walking after getting out of the car at the end of the ride, but was able to walk away. He was hospitalized immediately and underwent surgery about a week later for a broken neck.
Plaintiff initiated this action on October 27, 1975, seeking money damages for the alleged negligence of Kings Island in (1) failing to exercise ordinary care toward plaintiff, (2) failing to warn plaintiff of the dangerous condition of the ride, and (3) failing to maintain its premises in a reasonably safe condition. The trial court sustained the defendant's motion for summary judgment on the ground that under the present status of the law no duty existed under these circumstances for which the defendant could be held negligent. On appeal, the Court of Appeals reversed, concluding that reasonable minds could find the facts necessary to establish a duty on the part of Kings Island to warn the plaintiff of the nature of the ride.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Mr. Robert H. Davis, for appellee.
Messrs. Rendigs, Fry, Kiely Dennis and Mr. Frederick Brockmeier, for appellant.
The only issue appealed to this court is whether the trial court acted improperly in sustaining defendant's motion for summary judgment by finding, as a matter of law, no duty on the part of defendant to warn plaintiff of the nature of the roller coaster ride.
The owner or occupier of premises is not an insurer of the safety of his invitees, but he does owe a duty to exercise ordinary or reasonable care for their protection. S.S. Kresge Co. v. Fader (1927), 116 Ohio St. 718; Railroad Co. v. Harvey (1907), 77 Ohio St. 235. This rule applies with equal force to proprietors of amusement parks. Cincinnati Base Ball Club Co. v. Eno (1925), 112 Ohio St. 175. But, the obligation of reasonable care is an extensive one, applicable to everything that threatens an invitee with an unreasonable risk of harm. Prosser on Torts 393 (4 Ed. 1971), Section 61. This includes the duty to warn patrons of dangerous conditions known to, or reasonably ascertainable by, a proprietor which a patron should not be expected to discover or protect himself against. Accordingly, the proprietor's duty is normally predicated upon his superior knowledge of a dangerous condition on his premises. Since a warning eliminates the disparity between the proprietor's and patron's knowledge of the dangerous condition, it is usually sufficient to discharge the proprietor of his duty to exercise reasonable care.
Statements concerning an occupier's duty to warn invitees of dangerous conditions on his premises are frequently confused with defenses of contributory negligence and assumption of risk. See Keeton, Personal Injuries Resulting from Open and Obvious Conditions, 110 U. Pa. L. Rev. 629. We are presented here solely with the question of the defendant's duty, which must be determined from the standpoint of the defendant. See Scheibel v. Lipton (1951), 156 Ohio St. 308, paragraph three of the syllabus; 2 Restatement of Torts 2d 215, Section 343 (1965). Accordingly, the proper inquiry is what did the defendant know or should he have known, versus what the defendant could reasonably expect the plaintiff to know. Questions as to the plaintiff's subjective or objective state of mind are properly dealt with as affirmative defenses, and, therefore, are not now before us.
The question thus raised is whether the operator of this roller coaster, which was neither improperly designed, defectively constructed nor inadequately maintained, had a duty to warn the plaintiff that the nature of the ride was such that he might be injured in the normal course of its operation. The answer to this question turns upon the presence of facts and circumstances from which it might be concluded that the operator knew or should have known that the invitee had a disability or infirmity of such a nature that the danger of injury from the normal operation of the ride could be reasonably foreseen by the operator by reason of his superior knowledge of the nature of the device.
The trial court, in sustaining defendant's motion for summary judgment, found, as a matter of law, no such superior knowledge. Based on the record before us, we cannot agree that the answer is so clear-cut. While no question is raised as to what the defendant knew or should have known with respect to dangers inherent in a roller coaster ride, there is a legitimate dispute as to exactly what knowledge the defendant could fairly attribute to this plaintiff, based upon the plaintiff's proven age and poor physical condition, and the allegedly obstructed view of the ride. Whether or not there was a duty to warn the invitee in this case must be determined by the development at trial, and ultimate resolution, of these factual issues. Summary judgment is not appropriate where the facts, which must be viewed in a light most favorable to the party opposing the motion, Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, are subject to reasonable dispute. Civ. R. 56(C). Since we cannot say that reasonable minds could reach but one conclusion as to these matters and thus as a matter of law find no duty incumbent upon the defendant to warn plaintiff of the nature of the ride, we find that summary judgment was improperly granted for the defendant.
Accordingly, the judgment of the Court of Appeals is affirmed, and the cause remanded to the Court of Common Pleas for further proceedings consistent with this opinion.
Judgment affirmed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, DONOFRIO and HOLMES, JJ., concur.
DONOFRIO, J., of the Seventh Appellate District, sitting for LOCHER, J.