Opinion
No. 72-539
Decided May 30, 1973.
Negligence — Qualified nuisance, defined — Open, inadequately lighted window well near parking area — Negligence as matter of law, when — Evidence — Conflicting evidence on issue of contributory negligence — Resolution for jury — Error for Court of Appeals to invade province of jury — Inference that plaintiff exercised ordinary care — Charge to jury.
1. Where, in the trial of an action for negligent maintenance of a qualified nuisance, the undisputed evidence shows the continued maintenance in the night season for some 32 years of an open, unguarded and unlighted window well, eight feet long, three feet, three inches wide, and approximately four feet deep, located contiguous to a partially lighted, blacktopped, private parking area, in close proximity to the natural path of ingress and egress to parked automobiles, such dangerous condition is a qualified nuisance and constitutes negligence as a matter of law, and it is not error for the trial court to so charge the jury.
2. Where the evidence, in the trial of an action brought for the maintenance of a qualified nuisance, viewed most favorably towards plaintiff for the purpose of defendant's motion for a directed verdict, is conflicting on the issue of the plaintiff's alleged contributory negligence, or a combination of circumstances exists relative to the question of plaintiff's contributory negligence so as to require a resolution of what are the true facts, such situation lends itself to an inference that plaintiff exercised ordinary care and the ultimate determination of this issue is solely within the province of the jury; and it is error for the Court of Appeals to invade that province of the jury.
APPEAL from the Court of Appeals for Butler County.
Plaintiffs are husband and wife. Mrs. Corilda Rothfuss, a resident of Middletown, Ohio, went to Hamilton, Ohio, on May 5, 1959, to visit with her sister. Mrs. Rothfuss, hereinafter referred to as appellant, accompanied her sister to a meeting that evening at the Hamilton Masonic Temple, owned and operated by Hamilton Masonic Temple Company of Hamilton, Ohio, hereinafter referred to as appellee.
Upon arriving at the Temple, at approximately 7:15 p.m., appellant's sister parked in the rear parking lot of appellee's building, properly positioning her automobile head-in, facing the back wall of the building, between painted lines provided for that purpose.
At the time that appellant departed from the automobile, daylight conditions prevailed. Appellant proceeded from the front passenger side of the automobile around to the rear of the vehicle and accompanied her sister into the building.
Appellant testified that, as a member of affiliated bodies of the Masonic Lodge in Middletown, Ohio, she had had occasion to visit the appellee Temple approximately six times prior to this visit, but that she had never previously parked in this particular parking lot.
After the meeting ended, at 10:00 p.m., the appellant, accompanied by her sister and brother-in-law, left the building from the east door and proceeded around to the rear lot. The building custodian also followed them, but at a distance of 20 to 25 feet. All but appellant had become familiar with the lot over a period of time.
The parking lot, itself, was blacktopped. There were two 150 watt lights which were located on the rear wall at the east and west corners of the Temple building. Each light extended two feet from the wall of the building into the parking lot at a height of 15 feet. There were also two additional lights located on telephone poles in the alley behind the building. Witnesses testified that the lighting conditions in the parking lot were such that there was partial light, with shadows all around.
Appellant, in the company of her sister and brother-in-law, proceeded a considerable distance over the partially lighted and shadowy parking lot. Upon reaching her sister's automobile, she walked around the front of the car, between the wall and the automobile, and fell into the first of three unlighted and unguarded window wells, sustaining permanent injuries.
The window wells were contiguous to the rear of the building, were eight feet long and approximately four feet deep, and protruded three feet, three inches out from the rear wall of the building. The rear wall of the building was recessed 24 to 30 inches from the east and west corners of the building, each of which corners accommodated the lights, so that, as a result, the lighting conditions in the area of the window wells were variously described as dark to partially light and shadowy. The window wells were adjacent to the lines describing the parking places, and testimony indicated that car bumpers overhang the wells, further causing shadowy conditions.
The window wells were constructed with two and one-half inch protective curbings around their semi-perimeters and have remained uncovered and unguarded, except for the curbing, since their construction.
The Ohio Building Code in effect at the time of construction in 1927 did not specifically require guards, although the present Building Code does require protective guards on newly constructed buildings and those buildings which have been repaired.
The case was tried to a jury in the Court of Common Pleas. The trial court twice overruled appellee's motions for a directed verdict, made first at the conclusion of appellants' case and at the close of all the evidence. The court also overruled appellants' motion for a directed verdict, made at the close of all the evidence, and submitted the case to the jury, charging that the maintenance of the open, unguarded window well constituted a qualified nuisance and that the appellee was thereby negligent as a matter of law. The court also submitted the issues of negligence, proximate cause, appellant's contributory negligence and assumption of risk to the jury.
The jury returned a unanimous verdict in the amount of $18,000 for appellant Corilda Rothfuss, and a verdict in the amount of $3,500 for appellant William M. Rothfuss, for loss of consortium and special damages.
Appellee thereafter filed motions for a new trial and for judgment non obstante veredicto, both of which were overruled.
Subsequently, appellee appealed to the Court of Appeals. That court reversed the judgments of the Court of Common Pleas, holding that the motions for a directed verdict for the appellee should have been granted for the stated reason that, as a matter of law, the appellant was contributorily negligent in stepping into the darkened window well.
Appellants then appealed to this court which remanded the causes to the Court of Appeals to rule on all assignments of error not passed upon. ( 27 Ohio St.2d 131.)
Upon remand, the Court of Appeals, consolidating the cases, additionally held that the trial court erred in instructing the jury that the appellee maintained a qualified nuisance and that, by virtue thereof, was negligent as a matter of law.
The causes are now before this court pursuant to the allowance of motions to certify the records.
Mr. Irving I. Saul, Miss Mary C. Lord and Mr. T. Patrick Lordeon, for appellants.
Messrs. Baden, Jones Scheper, for appellee.
Appellants' six propositions of law can be condensed into two legal questions for this court to consider.
Appellants' first contention is that the trial court did not err in its charge to the jury that the appellee maintained a qualified nuisance and was negligent as a matter of law.
This court has recognized that the duty owed by possessors of land to those who may be injured on their premises is a different duty than the duty owed to ordinary social guests, as a result of the doctrine of qualified nuisance. See paragraph three of the syllabus in Taylor v. Cincinnati (1944), 143 Ohio St. 426, 427, which reads:
"As distinguished from absolute nuisance, a qualified nuisance or nuisance dependent upon negligence consists of anything lawfully but so negligently or carelessly done or permitted as to create a potential and unreasonable risk of harm, which, in due course, results in injury to another."
In elaborating upon this type of nuisance or nuisance dependent upon negligence, this court stated, at 441:
"* * * It most frequently consists of acts or conditions involving unreasonable risk of harm resulting in personal injury. In such case, of course, negligence must be averred and proven to warrant a recovery. Bates Pleading and Practice, 1925, Section 2171 a. Applying such connotation, `nuisance' may be and frequently is the consequence of negligence."
The statement in Taylor, coupled with Judge Cardozo's opinion in McFarlane v. Niagara Falls (1928), 247 N.Y. 340, 160 N.E. 391, as quoted in the Taylor opinion, indicates that a civil action based upon the maintenance of a qualified nuisance is essentially an action in tort for the negligent maintenance of a condition, which, of itself, creates an unreasonable risk of harm, ultimately resulting in injury. The dangerous condition constitutes the nuisance. The action for damages is predicated upon carelessly or negligently allowing such condition to exist.
In an action based on the maintenance of a qualified nuisance, the standard of care owed to one injured 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 quite dissimilar from the duty to warn social guests of the existence of such a condition. Scheibel v. Lipton (1951), 156 Ohio St. 308.
The Court of Appeals found that the trial court erred in instructing the jury that the appellee maintained a qualified nuisance and, by virtue thereof, was negligent as a matter of law. That court stated that it is the province of the court to define a qualified nuisance, and, further, that it is the province of the jury to determine whether the circumstances of the case before it come within such given definition.
It has been the settled law of Ohio that, if all the material facts relevant to the alleged negligence are undisputed, and admit of no rational inference but that of negligence, and are sufficient to permit only a conclusion by reasonable minds against a party, after construing the evidence most favorably to that party, then the question of negligence becomes a matter of law merely, and it is the duty of the trial court to so instruct the jury. Cleveland, C. C. Rd. Co. v. Crawford (1874), 24 Ohio St. 631, 639; O'Day v. Webb (1972), 29 Ohio St.2d 215, 220.
In the present case, the evidence relative to the maintenance of the window wells is undisputed The wells were constructed in 1927 as a part of the appellee's building. They are located contiguous to the parking area provided by appellee, and in close proximity to the natural path of ingress and egress to parked automobiles. Appellee's building is so constructed that these window wells are inadequately lighted and shadowed. The wells are open and unguarded, except for two and one-half inch curbings around their semi-perimeters, and have so remained since their construction in 1927.
Safety statutes in force at the time of construction required guards for areaways but not for window wells per se. The Revised Code Section in effect at the time of the accident, and the subsequent Ohio Building Code, specifically require the installation of protective guard railings on newly constructed buildings and those in the process of repair, labelling open, unguarded wells as public nuisances. R.C. 3781.11.
It is the opinion of this court that the only rational inference which can be drawn from this evidence is that the existence and continued maintenance of these windows wells under the foregoing circumstances was unquestionably dangerous and created an unreasonable risk of harm. As stated by Judge Cardozo in McFarlane v. Niagara Falls, supra ( 247 N.Y. 340): "If danger there was, then also there was nuisance, though nuisance growing out of negligence."
The trial court did not err in its instruction to the jury that the appellee was negligent as a matter of law.
Appellants' second contention is that the Court of Appeals erred in finding as a matter of law that appellant Mrs. Rothfuss was contributorily negligent in stepping into the window well.
Appellants' additional argument that contributory negligence is not available to the appellee in an action brought for the maintenance of a qualified nuisance is without merit because it fails to distinguish between nuisances per se and qualified nuisances which depend upon negligence. Contributory negligence is ordinarily a proper defense in an action alleging negligence, except in those instances wherein absolute liability is imposed by statute. By definition, a qualified nuisance does not impose absolute liability. Taylor, supra, and McFarlane, supra.
Contributory negligence is available as a defense in the present case, and the remaining issue for this court to consider is whether there was sufficient conflicting evidence or the existence of a combination of circumstances relative to the issue of appellant's contributory negligence that reasonable minds might arrive at different conclusions. If such a conflict or combination of circumstances exists, it is the province of the jury to determine wherein the probable truth lies, and it is reversible error for the court to invade that province of the jury. Painesville Utopia Theatre Co. v. Lautermilch (1928), 118 Ohio St. 167.
The Court of Appeals herein relied on this court's opinions in Flury v. Central Publishing House (1928), 118 Ohio St. 154; McKinley v. Niederst (1928), 118 Ohio St. 334; and Jeswald v. Hutt (1968), 15 Ohio St.2d 224, in determining that the evidence relating to appellant's contributory negligence indicated that the fall was precipitated by the "one step" taken by plaintiff in the darkness, and that no act or omission by the appellee tended to refute this inference.
The Flury and McKinley opinions involved the application of the so-called "one step in the dark" rule. In both cases, the evidence was uncontroverted that the plaintiffs had, without knowledge or sensory investigation as to what the darkness might conceal, stepped from a lighted area into total darkness at their peril. In both cases, the court held that, in the absence of any duty on the part of the defendants to make the premises safe, such steps into total darkness raised an inference of negligence which was not refuted by other evidence.
The Jeswald case involved accumulations of ice and snow on an unlighted parking lot, as well as darkness. The court held that, since the hidden defect in the parking lot surface was minor and the defendant was under no legal duty to light the lot or remove natural accumulations of ice and snow, the plaintiff's own lack of ordinary care was the proximate cause of her injury. In paragraph three of the syllabus, the court stated:
"`Darkness' is always a warning of danger, and for one's own protection it may not be disregarded."
In those three cases, the evidence introduced raised the inference of the plaintiffs' lack of ordinary care.
Plotkin v. Meeks (1936), 131 Ohio St. 493, however, states that the rule announced in the McKinley case is limited in its application and operation to the facts there presented.
The court distinguished McKinley, in which the plaintiff had stepped into the hallway in total darkness, whereas, in Plotkin, evidence of some degree of light in the opening to the stairway where the injury occurred was presented, tending to refute the inference of plaintiff's contributory negligence.
Similarly, the court, in Painesville, supra ( 118 Ohio St. 167), held that the inconsistent testimony of a plaintiff as to whether her accident was caused in the process of opening the door of a darkened stairway, or as a result thereof, raised doubts as to which of her inconsistent answers was "more probably true" and that this conclusion was solely within the province of the trier of the facts.
Likewise, numerous cases from this and other jurisdictions hold that it is not contributory negligence to fail to look for dangers where there is no reason for a person of ordinary prudence and care to apprehend or anticipate any. Northwest Airlines v. Glenn L. Martin Co. (1955), 224 F.2d 120; Cleveland, C. C. Rd. Co. v. Crawford, supra ( 24 Ohio St. 631); and Fogle v. Shaffer (1958), 167 Ohio St. 353.
The Court of Appeals for Geauga County stated, in Chardon Lakes Inn Co. v. MacBride (1937), 56 Ohio App. 40, at page 46:
"It can not be said that a person is guilty of negligence as a matter of law under all circumstances when such person enters a dark place where his sense of sight alone does not enable him to see what is before him. The use made of senses with which we are endowed, other than the sense of sight, may be such as to create a factual question as to whether the person entering a dark place has acted in a reasonably prudent manner and as ordinarily prudent persons usually act under like circumstances."
A number of jurisdictions have held that the question of whether a plaintiff who is injured while proceeding in a dark parking lot is guilty of contributory negligence is one for the jury and depends upon the circumstances of each case, including the nature and degree of darkness existing, the nature and appearance of the premises, and the availability of an alternate route. See 22 A.L.R. 3d 286, 301, 305. See, also, 14 A.L.R. 2d 780, 801; 23 A.L.R. 3d 441, 467; and 38 A.L.R. 3d 10, 96.
In the present case, there was conflicting testimony as to light conditions in the parking lot, especially in the area of the window well.
The appellant, herself, testified on direct examination:
"Q. Now, what was the condition of the light in the parking lot area?
"A. It was partially light, partially light and shadows around.
"Q. Could you see the hole?
"A. No sir.
"Q. Before you fell into it?
"A. No, I couldn't see the hole."
On cross-examination, she testified:
"Q. Now, when you came out of the building, I gather that it was quite dark outside, the sun having set sometime before you left the building, is that correct?
"A. That's right.
"Q. So that if there was any light in the area it would have been from either street lights or lights on the building or both, is that correct?
"A. It was partially lit.
"Q. Do you know where that light was coming from?
"A. I don't remember.
"Q. All right. Now with regard to the actual area in which you fell, can you recall whether it was lighted?
"A. It was —
"Q. Or was it dark?
"A. It was partially dark.
"Q. Was it dark enough that you couldn't see the hole in which you fell before you fell into it?
"A. That's right."
On direct examination, the night custodian, Clarence Bryant, testified:
"Q. You may state to the jury, Mr. Bryant, whether — what the light conditions were at the window well, whether it was dark or whether it was light.
"A. It would naturally be dark because the car shadowed and her shadow and walking away from the light, I would say it would be dark."
This testimony lacks the certainty required to satisfy the step into "total darkness" rule set forth in the McKinley decision. There is a conflict between the appellant's testimony and the custodian's as to the light conditions. Appellant's testimony, itself, demonstrates some uncertainty. Further testimony lends itself to an inference that the appellant may have been deceived and lulled into a false sense of safety by the appearances of the parking lot, and by the failure of her companions to warn her of the existence of the window wells.
Viewing the evidence most favorably toward appellants for the purpose of appellee's motion for a directed verdict, we find that sufficient doubt existed with respect to the witnesses' testimony and the effect of the conditions and circumstances associated with appellant's injury so as to lend an inference that appellant exercised ordinary care in the instant case. This inference is all that is necessary under the Plotkin and Painesville cases, supra, to bring this case within the province of the jury for an ultimate resolution as to the weight to be given the conflicting evidence. It was, therefore, error for the Court of Appeals to reverse the judgment of the Court of Common Pleas and enter final judgment for the defendant.
Upon the basis of this court's decisions in Taylor v. Cincinnati, supra ( 143 Ohio St. 426), Plotkin v. Meeks, supra ( 131 Ohio St. 493), and Painesville Utopia Theatre Co. v. Lautermilch, supra ( 118 Ohio St. 167), the judgment of the Court of Appeals is reversed and the judgments of the Court of Common Pleas are reinstated.
Judgment reversed.
O'NEILL, C.J., HERBERT, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.