Lead Opinion
The issue before us is whether we should impose an affirmative duty on a property owner to protect third parties from the negligent acts of business invitees which occur outside the оwner’s property and are beyond the owner’s control. We decline to impose such a duty.
In Ohio it is well-established that liability in negligence will not lie in the absence of a speсial duty owed by the defendant. Strother v. Hutchinson (1981),
Both parties refer to Section 318 of the Restatement of the Law, Torts 2d, in regard to the duty of a possessor of land or chattels to control the conduct of a licensee which reads at page 126 as follows:
“(a) knows or has reason to know that he has the ability to control the third person, and
“(b) knows or should know of the necessity and opportunity for exercising such control.”
Neither party, however, refers to the following sections of the Restatement of the Law, Torts 2d:
“[Section 315] General Principle
“Therе is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
“(a) a special relation exists between the actоr and the third person which imposes a duty upon the actor to control the third person’s conduct, or
“(b) a special relation exists between the actor and the other which gives to the other a right to protection.” Id. at 122.
“[Section 314] Duty to Act for Protection of Others
“The fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.” Id. at 116.
Both Sections 314 and 315 articulate the general rules of the duties imposed on third parties. Thus, unless a special relationship between defendant-owner and plaintiff-third party is extant by statute or judicial determination, no duty may be imposed.
The first inquiry is whether a specific statutory duty exists. In a casе factually analogous to the instant case, the Court of Appeals of New York held that no duty existed between a parking garage operator and a third-party pedеstrian struck by a car operated by a patron exiting the garage. Pulka v. Edelman (1976),
“The statutes impose a duty on the driver because pedestrians are entitled to legal protection from the conduct of the driver. To this extent they may seek legal redress and are not without a remedy. Tо hold that pedestrians are similarly entitled to legal protection from the garage for the conduct of its patrons would be to create an unnecessary extension оf a duty beyond the limits required under the law of negligence as we know it.”
The concern of the New York court’s decision in Pulka (see, also, Margolin v. Friedman [1978],
“* * * Although it is rеasonable to require one person to be responsible for the negligent conduct of another in some instances, it is unreasonable to impose that duty where the reаlities of every day experience show us that, regardless of the measures taken, there is little expectation that the one made responsible could prevent the nеgligent conduct.”
For the reasons articulated above we decline to impose an affirmative duty on a property owner to protect third parties from the negligent acts of business invitees which occur outside the owner’s property and are beyond the owner’s control. Accordingly, we affirm the judgment of the court of appeals.
Judgment affirmed.
Notes
R.C. 4511.44:
“The oрerator of a vehicle * * * about to enter or cross a highway from any place other than another roadway shall yield the right of way to all traffic approaching on the roadway to be entered or crossed.”
Dissenting Opinion
dissenting. Existing law requires this court to conclude that plaintiff’s opening statement set forth facts and conditions sufficient to overcome defendants’ motion for a directed verdict.
Thе possessor’s duties arise from his superior knowledge of existing dangers or perils and his ability to control the premises and persons using them. Thus, in the present case, if it could be shown that the patron’s actions which caused the accident were reasonably foreseeable and controllable, liability could be imposed upon defendants.
In the instant cаse, the defendant-operator of the Burger King was advised following a traffic survey that the intersection on which its property fronted was one of the most dangerous in the county, hаving been the location of multiple prior accidents. Defendant was further advised that one of the prime causes of these accidents was that the arrow on the Burger King drivеway directed traffic leaving the property into the intersection at a point where drivers could not see the faces of the northbound traffic signals, which were green for nоrthbound traffic at times when the faces of the southbound traffic signals were red for southbound traffic. Defendant was asked to contribute $1,800 to pay for a face on the traffic signal сontrolling the exiting customers, but refused to do so. Moreover, defendants made no attempt to give any warning to its customers of this known dangerous condition.
Such facts, as related during рlaintiffs’ opening argument, coupled with the extreme caution which must be exercised in sustaining any motion for a directed verdict (see Brinkmoeller v. Wilson [1975],
Based on the facts and conditions set forth in plaintiffs’ opening statement, a reasonable mind could have concluded that an abnormally dangerous condition resulted from the location of the exit drive relative to the traffic signals with an unusual sequence which caused antiсipatable confusion. I would reverse the judgment of the court of appeals and remand the cause for trial.
The question of whether any one or all of the defendants lack control or possession of the premises was not previously raised and need not be considered at this stage of the proceedings.