Lead Opinion
In considering the propriety of the trial court’s grant of summary judgment to H&R and Conrail, we are mindful that Civ. R. 56(C) requires that “summary judgment shall not be rendered unless it appears
One of the factors necessary to establish an actionable cause of negligence is a breach by defendant of a duty of care owed to plaintiff. Mitchell v. Cleveland Elec. Illum. Co. (1987),
I
A trespasser is one who, without express or implied authorization, invitation or inducement, enters private premises purely for his own purposes or convenience. See Allstate Fire Ins. Co. v. Singler (1968),
“Ordinarily, a landowner owes no duty to undiscovered trespassers other than to refrain from injuring such trespassers by willful or wanton conduct.” Elliott v. Nagy (1986),
A railroad has no statutory or common-law duty to fence its right-of-way against trespassers. Brooks v. Norfolk & Western Ry. Co., supra, at 38, 74 O.O. 2d at 55,
The trial court held that there was no evidence suggesting that Conrail breached its duty not to engage in willful or wanton misconduct. We agree with the court of appeals that appellants have presented no evidence to support a finding that this decision was in error. Appellants do not suggest that Conrail had the intent, purpose, or design to injure Michael; thus, Conrail’s conduct could not have been willful. There was also no evidence that the train was traveling at an improper speed or that Conrail otherwise engaged in wanton misconduct. The mere fact that the crew did not see Michael, who was apparently standing near, but not on, the track upon which the Conrail train was traveling, is not sufficient, standing alone, to constitute wanton misconduct.
II
Appellants assert that the attractive nuisance or dangerous active operations doctrines imposed a higher duty of care on Conrail. Ohio has not adopted the doctrine of attractive nuisance. See Elliott v. Nagy, supra, at 60, 22 OBR at 78,
Similarly, the dangerous instrumentality exception is not applicable. The dangerous instrumentality exception imposes upon the owner or occupier of a premises a higher duty of care to a child trespasser when such owner or occupier actively and negligently operates hazardous machinery or other apparatus, the dangerousness of which is not readily apparent to children. See Coy v. Columbus, Delaware & Marion Elec. Co. (1932),
Ill
The duties imposed on a landlord at common law derived from possession and control over that portion of the property containing the alleged hazard. See Grieser v. Huntington Natl. Bank (1964),
Appellants contend that H&R had a duty to fence the portion of its property that abutted the railroad right-of-way or to otherwise prevent tenants from using the paths through the underbrush adjacent to its property, and that, as a result of its failure to perform this alleged duty, the common areas of the premises were not kept in a safe condition in violation of R.C. 5321.04(A). The Shroades and Anderson decisions address a landlord’s liability for tenant’s injuries occurring on the rental premises and, thus, they differ from the cause at issue in which the injuries occurred off the landlord’s premises. We have generally refused to extend the requisite duty of care to protect against conditions existing beyond the territorial limits of the defendant’s property, see Mitchell v. Cleveland Elec. Illum. Co., supra, at paragraph one of the syllabus; Ruwe v. Bd. of Springfield Twp. Trustees (1987),
Courts in other jurisdictions have uniformly held that a landlord is not required to fence property simply because it abuts railroad tracks. In Jones v. United States (C.A. 4,1957),
Pennsylvania courts have refused to impose a duty on a landowner to fence property adjacent to railroad tracks to protect children who live or play on the land. The courts in Pennsylvania noted, as in Ohio, that a railroad has no duty to fence its right-of-way, and consequently “it would be incongruous to impose such a duty upon adjacent landowners when no such duty is imposed upon the owner of the land in which the dangerous condition exists.” Scarborough v. Lewis (Pa. Super. 1986),
In the cause at issue, as in the Jones, Cousins and Scarborough cases, there were no allegations of any dangerous conditions on the landowner’s property which proximately caused the child’s injuries. In Williamson v. Wilmington Housing Auth. (1965),
A moving freight train, like any other moving vehicle, is dangerous only if one gets in its path or attempts to board while it is moving. This danger is open, obvious, and common to all. See Jones v. United States (C.A. 4,1957),
Accordingly, the judgment of the court of appeals is hereby affirmed.
Judgment affirmed.
Notes
H&R’s relationship with Michael was solely that of landlord and tenant. There are no allegations that H&R was serving in loco parentis or in a similar capacity towards Michael.
Dissenting Opinion
dissenting. In my opinion, the instant cause presents genuine issues of material fact as to whether the landlord’s failure to protect the children of the apartment complex against the abutting railroad tracks was a breach of its duty of ordinary care. Therefore, I must dissent from the majority’s judgment precluding plaintiffs from having their day in court.
As noted by Judge Black’s dissenting opinion in the court of appeals below, two issues are in dispute and should be resolved by the trial court: (1) whether the landlord breached a duty of ordinary care to keep the outside common areas of the apartment complex in a reasonably safe condition, and (2) whether the breach was a proximate cause of the minor’s injuries. When one construes the evidence most strongly in plaintiffs’ favor, as required by Civ. R. 56(C), I believe that there is a legitimate dispute over whether the landlord’s purported breach of duty was a proximate cause of the minor’s injuries.
As the record indicates, the landlord instructed the children residing in the complex to play only in the back area of the property near the railroad tracks where the complex playground was situated. In my view, the landlord knew or should have known about the existence of the well-worn paths leading from the playground area to the railroad tracks; and, apparently, the landlord did nothing to prevent children living in the complex from wandering down those well-worn paths to the railroad tracks. Unlike the majority, I am unwilling to endorse a per se rule that a landlord is blameless, as a matter of law, for failing to protect tenants from dangers that exist outside the landlord’s property boundaries. As Judge Black stated in his well-reasoned opinion below:
“The fact that the danger lay off the landlords’ premises does not automatically relieve them of their duty of ordinary care. The extent of that duty is a matter of proximity and foreseeability. If the landlords had allowed a well to remain uncapped within the play area where one hundred children were present, there is no doubt this would be a breach of ordinary care. If that uncapped well were located just across the property line on an adjoining neighbor’s premises, at the bottom of a slippery slope that started in the play area, as in the Delaware case [Williamson v. Wilmington Housing Auth. (1965),58 Del. 252 ,208 A. 2d 304 ] involving the Williamson four-year-old, that failure to provide reasonable protection could be found to be a failure of ordinary care. Take the hazardous condition further away, perhaps ten city blocks, attenuating the immediacy of the danger, and the landlords could not reasonably be held to a duty to*251 provide protection against that remote hazard. It all depends on the facts and circumstances. See, generally, Annotation, Landlord’s Liability for Injury or Death Due to Defects in Outside Walks, Drives or Grounds Used in Common by Tenants (1976),68 A.L.R. 3d 382 .”
Unfortunately, the majority in the instant cause mechanically applies herein the same type of ill-conceived rule that was promulgated in Mitchell v. Cleveland Elec. Illum. Co. (1987),
In addition, I must dissent from this court’s refusal to adopt the “attractive nuisance” doctrine embodied in Section 339 of the Restatement of the Law 2d, Torts (1965) 197. For the reasons set forth in my dissenting opinion in Elliott v. Nagy (1986),
Therefore, I would reverse the judgment of the court of appeals and remand the cause for a trial on the merits.