Opinion
No. 88-13219.
Decided November 21, 1989.
Gerald R. Walton, for plaintiff.
Anthony J. Celebrezze, Jr., Attorney General, and Eric A. Walker, for defendant.
On October 21, 1988, plaintiffs, Richard and Pamela Masi, filed a complaint in this court alleging that defendant, Ohio Department of Transportation ("ODOT"), was negligent in failing to properly and safely maintain the premises of its Warrensville Heights garage ("garage"). On September 25, 1989, this action came on for trial. This cause was bifurcated; therefore, the court has considered the evidence and arguments addressing the sole issue of liability and renders the following decision.
Plaintiff Richard Masi is a former employee of defendant who became acquainted with Robert Brown, a present employee of defendant, while Masi was employed by defendant. After Brown and Masi's employment relationship terminated, Brown was assigned to defendant's Warrensville Heights garage. Brown extended an open invitation to Masi to visit him at the garage at any time.
On October 24, 1986, Masi decided to accept this invitation during his usual journey home from his employment. Masi approached the ODOT building from a parking lot next to the building, walked through the front door and turned to the right toward an office he assumed to be occupied by Brown. The front door of this building is glass with a metal frame around its edges and a metal push bar across the center. On each side of this glass door there are two large panes or panels of glass encased in a small metal frame. Masi was unsuccessful in his attempt to enter the office he believed to be occupied by Brown, as the entrance door was locked. Masi then decided to go down a hallway located across from the front door of the building in order to see if he could locate another ODOT employee who might be aware of Brown's whereabouts.
Masi walked down this hallway and approached an employee of defendant who informed Masi that he should exit the building where he had previously entered and then reenter at a different location. Masi retraced his steps down the hall. The testimony at trial revealed that as Masi approached the end of the hall he viewed a part of the aforementioned front door and an entire section of a glass pane. Believing the area near the pane of glass was "open air," Masi impacted and shattered the glass pane when attempting to exit the building. Masi fell on the shattered glass and sustained injuries. On the day of the accident, the glass pane had recently been cleaned and did not have any decal or other marking on its surface. Atmospheric conditions on the day of the accident were such that the sunlight was very bright outside the building; this, combined with the dim lighting on the inside of the building, made it impossible for Masi to see his reflection in the glass.
Plaintiffs assert that defendant was negligent by failing to properly and safely maintain the premises of its Warrensville Heights garage. The plaintiffs have the burden of proof to show by a preponderance of the evidence that defendant was negligent under the circumstances. Ohio law directs that the essential elements of negligence are: (1) a duty of care owed to the plaintiff; (2) a breach of that duty by a negligent act or omission; and (3) an injury proximately resulting from such breach. 70 Ohio Jurisprudence 3d (1986) 46, Negligence, Section 9; Di Gildo v. Caponi (1969), 18 Ohio St.2d 125, 47 O.O.2d 282, 247 N.E.2d 732.
In order to define what duty the defendant owed to Masi there must first be an inquiry as to his legal status while he was on the premises of defendant. A review of relevant law reveals the following legal proposition:
"The question whether one suing for damages for personal injuries was a licensee or invitee of the defendant is a question for the jury where the status depends upon issues of fact created by a contrariety of evidence, but the question of whether undisputed facts, essential to determination of the plaintiff's status, show him to be a licensee or invitee, is a legal question for the court." (Footnote omitted.) 62 American Jurisprudence 2d (1972) 274, 275, Premises Liability, Section 39; Wiley v. Natl. Garages Inc. (1984), 22 Ohio App.3d 57, 22 OBR 153, 488 N.E.2d 915.
A review of the record in the instant case indicates that there is an issue of fact present as to whether Masi was an invitee, social guest, or licensee when he entered the garage on the day in question.
In Ohio, "an `invitee' means a business visitor, that is, one rightfully on the premises of another for purposes in which the possessor of the premises has a beneficial interest. * * *" Scheibel v. Lipton (1951), 156 Ohio St. 308, 46 O.O. 177, 102 N.E.2d 453, paragraph one of the syllabus. A social guest has been described as one who does not come as a member of the public upon premises held open to the public for that purpose, nor does he enter for a purpose directly or indirectly connected with business dealings with the possessor. The use of the premises is extended to him merely as a personal favor to him. 2 Restatement of the Law 2d, Torts (1965) 172, 175, Section 330, Comment h. See, also, Hager v. Griesse (1985), 29 Ohio App.3d 329, 29 OBR 456, 505 N.E.2d 982. A licensee in Ohio is "[a] person who enters the premises of another by permission or acquiescence, for his own pleasure or benefit, and not by invitation * * *." (Emphasis added.) Light v. Ohio University (1986), 28 Ohio St.3d 66, 68, 28 OBR 165, 167, 502 N.E.2d 611, 613.
The jury instructions implemented by the courts throughout Ohio propose the following definitions regarding the relationship of parties:
"* * * INVITEE: BUSINESS VISITOR. An [invitee] is a person who rightfully enters [and remains] on the premises of another at the express or implied invitation of the [occupant] and for a purpose beneficial to the [occupant].
"* * *
"* * * SOCIAL GUEST. A social guest is a person who enters [and remains] on the premises of the [host] by [express] invitation to enjoy hospitality as a guest of the [host].
"* * *
"LICENSEE. A licensee is a person who enters [and remains] on the premises of another for his own pleasure, convenience, or benefit, and with the permission or acquiescence, either express or implied, of the [occupant]." 1 Ohio Jury Instructions (1983), Section 13.01, at 187-188.
After considering the aforementioned legal principles and jury instructions, the court finds as trier of fact that Masi was a social guest at the time of his presence on defendant's property. The record reflects that Masi was offered an open invitation to enter the premises to visit Brown and did not enter for a purpose directly or indirectly connected with the business dealings of defendant. Furthermore, defendant did not derive any benefit from Masi's presence on the premises. He was a social guest, and, while visiting on the premises, was injured.
There are well-settled principles defining the obligation or duty of care owed to a social guest:
"A host who invites a social guest to his premises owes the guest the duty (1) to exercise ordinary care not to cause injury to his guest by any act of the host or by any activities carried on by the host while the guest is on the premises, and (2) to warn the guest of any condition of the premises which is known to the host and which one of ordinary prudence and foresight in the position of the host should reasonably consider dangerous, if the host has reason to believe that the guest does not know and will not discover such dangerous condition." Scheibel v. Lipton, supra, at paragraph three of the syllabus.
"Ordinary care" has been defined in Ohio as "that degree of care which an ordinarily reasonable and prudent person exercises, or is accustomed to exercise, under the same or similar circumstances * * *." 70 Ohio Jurisprudence 3d (1986) 64, 65, Negligence, Section 20, and fn. 33.
Considering the surrounding circumstances in the case at bar, the court finds by a preponderance of the evidence that defendant failed to exercise ordinary care by not warning those on its premises of the inherent danger of the glass pane, which was difficult to detect. Defendant could have easily altered the lighting on the premises or placed a plant near the glass pane to warn those present on the premises of the hazard but failed to do so.
When an allegation of negligence is based upon the existence of a hazard or defect, the legal principle prevails that notice, either actual or constructive, of such hazard or defect is a prerequisite element in perfecting a claim that the defendant failed to comply with its requirement to exercise reasonable care. Heckert v. Patrick (1984), 15 Ohio St.3d 402, 405, 15 OBR 516, 519, 473 N.E.2d 1204, 1207-1208. However, the Ohio Supreme Court has held that evidence of actual knowledge is unnecessary once the evidence submitted establishes that a dangerous condition existed on the premises and the owner should have known about the condition. Perry v. Eastgreen Realty Co. (1978), 53 Ohio St.2d 51, 7 O.O.3d 130, 372 N.E.2d 335. In Perry, plaintiff was injured when he collided with a glass wall while walking on defendant's premises in the direction of a setting sun. In that case the Supreme Court of Ohio offered the following rationale:
"`* * * [T]he obligation of reasonable care is a full one, applicable in all respects, and extending to everything that threatens the invitee with an unreasonable risk of harm. The occupier must not only use care not to injure the visitor by negligent activities, and warn him of latent dangers of which the occupier knows, but he must also inspect the premises to discover possible dangerous conditions of which he does not know, and take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement or use. The obligation extends to the original construction of the premises, where it results in a dangerous condition.' * * *" (Citations omitted.) Id. at 52, 7 O.O.3d at 131, 372 N.E.2d at 336.
Acknowledging that this court has found plaintiff to be a social guest rather than an invitee, nevertheless, the duty of ordinary care owed to a social guest is very similar to that owed to an invitee, thus, making the application of the legal principles outlined in Perry appropriate. Consequently, the court finds by a preponderance of the evidence that the defendant should have known of the dangerous condition of the unmarked glass pane on its premises and that it breached its duty of ordinary care by failing to warn guests of this latent danger. Furthermore, the court finds by a preponderance of the evidence that said breach of the duty of ordinary care was a proximate cause of the injuries suffered by Masi. Thus, defendant's omissions constitute legal negligence for which it is liable.
Under the applicable comparative negligence statute, R.C. 2315.19, any negligent acts or omissions by plaintiff must be balanced against the negligence of ODOT. The general nature of contributory negligence has been defined in the following manner:
"Negligence and contributory negligence are governed by the same basic rules. They are both measured by the same standard — the failure to exercise ordinary care. It has been said that contributory negligence is a matter of some fault or departure from the standard of conduct of the reasonable man, however unaware, unwilling, or even protesting the injured party may have been. Contributory negligence is defined to be such an act or omission on the part of a plaintiff, amounting to a want of ordinary care as, concurring or cooperating with the negligent act of the defendant, is a proximate cause or occasion of the injury complained of. It is the want of ordinary care by a person injured by the negligence of another, concurring with such negligence, and thus contributing to the injury as a proximate cause." (Footnotes omitted.) 70 Ohio Jurisprudence 3d (1986) 144-145, Negligence, Section 65.
In this regard, Masi had the responsibility to evaluate the situation as would a reasonable person under similar circumstances and also to act in a way which would avoid harm.
"A person must use ordinary care for his own safety and, it follows, must not heedlessly expose himself to danger or voluntarily expose himself to unnecessary peril. Where there is a known danger, whoever encounters it voluntarily and unnecessarily cannot be regarded as exercising ordinary prudence, and he does so at his own risk. * * *" (Footnotes omitted and emphasis added.) Id. at 169, Section 78.
In the case at bar, Masi was injured while exiting at the precise location in the building where he had uneventfully entered a few moments before. The evidence at trial failed to show that he was distracted while walking toward the exit. The court finds by a preponderance of the evidence that Masi failed to pay attention to where he was walking and was contributorily negligent by his failure to exercise ordinary care for his own safety.
Pursuant to R.C. 2315.19, the court finds after considering the totality of the evidence that the percentage of negligence that directly and proximately caused the accident at issue, in relation to one hundred percent, which may be attributable to each party is as follows: Masi is found to be fifty percent negligent and ODOT is found to be fifty percent negligent.
Accordingly, the court finds that defendant is liable for one half of the damages proximately caused by its negligence. A trial on the issue of damages will be scheduled at a time the clerk of this court deems to be appropriate.
Reporter's Note: The parties subsequently entered into a settlement agreement.
Judgment accordingly.
RUSSELL LEACH, J., retired, of the Franklin County Municipal Court, sitting by designation.