773 N.E.2d 1053 | Ohio Ct. App. | 2002
{¶ 2} On September 12, 1995, at approximately 10:00 p.m., Nancy Mowery ("Appellant") sustained injury on property owned by Marjorie Shoaf, dba Salem Heritage Enterprises and dba Salem Towers, Inc. ("Appellee"). Appellee owns an apartment complex located at 1080 North Lincoln Street in Salem, Ohio. Appellant had been visiting briefly with William Porteous, a friend who lived in one of the buildings at the complex. Afterward, Appellant exited via the rear of the building and headed toward her car. As Appellant started across a driveway that serviced the rear of the building, the heel of her right shoe caught in a storm drain causing her to fall.
{¶ 3} Appellant had visited the apartment complex to check on Mr. Porteous, who was ill. Appellant and Porteous, both of whom were well into their seventies at the time of the incident, had been seeing each other. When Appellant learned that he was not well, she asked her friend, Louise Gleason, to drive her there so Appellant could bring Porteous some flowers. When the women arrived, Appellant went inside while Ms. Gleason parked the vehicle in a lot behind the building and waited for her to return.
{¶ 4} Appellant visited with Porteous briefly and then headed back toward the car. As she left the building, she immediately noted that it was very dark outside and that the area around the building's exterior was not well lit. Appellant began crossing the driveway on her way to the parking lot when the heel of her shoe slipped into a sewer grate and broke off, causing her to fall forward. In the fall, Appellant injured her arms, right knee and right ankle. Appellant subsequently underwent surgery to repair damage sustained to her ankle.
{¶ 5} On August 22, 1997, Appellant filed a complaint in the Court of Common Pleas alleging that Appellee was negligent in failing to maintain its premises in a reasonably safe condition. Appellant also claimed that Appellee negligently permitted an unreasonably dangerous condition to exist upon the premises, that Appellee failed to warn Appellant of the unreasonably dangerous condition, and that as a direct and proximate consequence of Appellee's negligence, Appellant sustained substantial personal injury.
{¶ 6} Eventually, Appellee sought and received leave to file a motion for summary judgment. With the motion, Appellee submitted transcripts from the depositions of Appellee, her husband, tenant William Porteous, on-site manager *405 James Miller, and Appellant. Appellant responded to Appellee's motion, and also submitted her affidavit and that of Louise Gleason. On July 17, 2001, the trial court granted Appellee's motion for summary judgment and dismissed Appellant's complaint.
{¶ 7} In reaching its' decision, the trial court first reasoned that Appellant was a licensee at the time she fell at Appellee's apartment complex because, "she entered the premises by permission or acquiescence for her own pleasure or benefit and not by invitation." (Judgment Entry July 17, 2001, p. 4). The trial court resolved that under the circumstances, Appellee's only duty was to, "refrain from wantonly or willfully causing injury." Id. The trial court acknowledged that under R.C. §
{¶ 8} The trial court also determined as follows:
{¶ 9} "The defendant was not an insurer of [Appellant's] safety and the record does not demonstrate that the grate upon which [she] fell in a common area of the apartment complex was either defective in design or condition such that it was unsafe. The fall occasioned by [Appellant] was neither caused by nor becomes the responsibility of the defendant. Therefore, the Court finds no genuine issue of material fact and further finds that reasonable minds can come to but one conclusion. That conclusion is adverse to [Appellant]." Id.
{¶ 10} Appellant filed a notice of appeal from the trial court's judgment entry on August 10, 2001.
{¶ 11} Appellant raises the following three assignments of error:
{¶ 12} "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN RULING THAT A PERSON LAWFULLY IN A `COMMON AREA' OF LEASED PREMISES DOES NOT HAVE BENEFIT OF THE RULE THAT A LANDLORD OWES THE SAME DUTIES TO A PERSON LAWFULLY ON LEASED PREMISES THAT HE OWES TO A TENANT.
{¶ 13} "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN RULING THAT THE DUTY OWED BY APPELLEE TO APPELLANT WAS DETERMINED BY THE RELATIONSHIP OF THE PARTIES; THAT IS, WHETHER APPELLANT WAS ON THE PREMISES OWNED BY APPELLEE AS AN INVITEE, LICENSEE OR SOCIAL GUEST.
{¶ 14} "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN RULING THAT APPELLANT ENJOYED THE STATUS OF A LICENSEE TO WHOM APPELLEE OWED ONLY A DUTY TO REFRAIN FROM WANTONLY OR WILLFULLY CAUSING INJURY."
{¶ 15} Although Appellant purports to divide this appeal into three assignments of error, what she has actually done is restate the same issue three times *406 in three barely distinguishable ways. Thus, we will combine these into one discussion for the purpose of this decision.
{¶ 16} According to Appellant, summary judgment was improper in this case because Appellee owed her a duty to maintain the apartment complex in a safe and sanitary condition. Appellant maintains that since the area where the sewer grate over which she tripped was poorly lit, she was unable to see and avoid the danger it presented.
{¶ 17} Summary judgment under Civ.R. 56(C) is properly granted where the moving party demonstrates the following:
{¶ 18} "`(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds could come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.'" Welco Industries, Inc. v.Applied Cos. (1993),
{¶ 19} In the event the moving party meets this initial burden, the opposing party bears a reciprocal burden in responding to the motion. Mitseff v. Wheeler (1988),
{¶ 20} Because it is a fairly drastic means of terminating litigation, a court must grant summary judgment with caution, resolving all doubts against the moving party. Osborne v. Lyles (1992),
{¶ 21} Appellant's complaint was based on a negligence claim. To prevail on such a claim, a plaintiff must establish the existence of a duty, breach of that duty and injury which was proximately caused by the breach. Menifee v. Ohio Welding Products, Inc. (1984),
{¶ 22} Appellant takes the position that this case turns on the scope of Appellee's duty to her while she was on Appellee's property. According to Appellant, as landlord of the apartment complex where she was a social guest, Appellee owed her the same duty it owed the tenant she was visiting.
{¶ 23} The trial court granted summary judgment against Appellant based on its conclusion that she was a licensee at the time she was injured on Appellee's property. Given that status, the court resolved, Appellee had no obligation to insure Appellant's safety. (Judgment Entry, July 17, 2001, p. 4). In addition, the court found that there was no evidence that the sewer grate upon which Appellant fell was either defective in design or presented a condition that rendered it unsafe. (Judgment Entry, July 17, 2001, p. 4).
{¶ 24} Contrary to the trial court's determination, this case does not turn on Appellant's common law status at the time she was injured at Appellee's apartment complex. Under R.C. §
{¶ 25} Nevertheless, the trial court's erroneous reliance on Appellant's designation as a licensee was harmless in this matter because it reached the correct result, albeit for the wrong reasons. As earlier discussed, landlords do owe a duty to maintain common areas in a safe condition for tenants and social visitors alike. But merely acknowledging the existence of such a duty in no way leads to a conclusion that this duty was breached. Appellant appears to assume that since there was a duty, an issue of fact necessarily exists with respect to whether it was breached. This assumption is flawed. Even when reviewing the record in a light most favorable to Appellant, this Court cannot say that the existence of a perfectly normal storm drain on a poorly illuminated driveway *408 created such a foreseeable danger to tenants and invitees that it gives rise to negligence on Appellee's part.
{¶ 26} Traditionally, the nature and extent of the legal duty a landlord owed to other persons depended on that person's status on the landlord's property. Light v. Ohio University (1986),
{¶ 27} A landowner owes no duty to licensees or trespassers except to avoid willful and wanton conduct that is likely to injure them.Combs v. Baker, 12th Dist. No. CA2001-01-020, 2001 Ohio 8650. For an invitee, on the other hand, the landowner must exercise ordinary care to protect him by maintaining the premises in a safe condition. This duty applies to everything that threatens the invitee with an unreasonable risk of harm, including latent dangers that are reasonably ascertainable. The landowner must not only use care to warn of latent dangers of which he is aware, but must also inspect the premises for possible unknown dangerous conditions and protect the invitee from foreseeable dangers. Hann v. Roush, 4th Dist. No. 00CA55, 2001 Ohio 2614.
{¶ 28} These traditional common law distinctions, however, have little significance subsequent to the Ohio Supreme Court's decision inShump v. First Continental Bank (1994),
{¶ 29} The incident in question here occurred on the driveway outside of the rear entrance and exit of one of the buildings at Appellee's apartment complex. R.C. §
{¶ 30} To survive summary judgment, Appellant needed to prove not only the existence of a duty, but the existence of a factual dispute with respect to whether the condition of Appellee's driveway rendered that particular common area unsafe or unsanitary in violation of R.C. §
{¶ 31} An injury is not actionable unless it can be foreseen or reasonably anticipated as the probable result of an act of negligence.Strother v. Hutchinson (1981),
{¶ 32} Admittedly, the record reflects significant dispute surrounding whether or not the apartment complex's exterior was properly illuminated on the night of the incident. Appellant recalls that there were no lights around the building. (Appellant's Depo., Sept. 14, 2000, p. 37; Affidavit of Plaintiff, July 3, 2001, para. 3). William Porteous, who lived at the complex, characterized the exterior lighting as adequate. (William Porteous' Depo., March 12, 2000, p. 21). James Miller, who was in charge of the lighting, testified that all the exterior lights were working that night. (James Miller's Depo., March 12, 2000, pp. 6, 8, 11).
{¶ 33} Since this matter is before this Court on appeal from a decision to grant summary judgment, the record is properly reviewed in a light most favorable to Appellant. Thus, we will assume that the complex's exterior was poorly lit, as Appellant claims. Accordingly, the question is whether Appellant's injury on the sewer grate was foreseeable given poor outside lighting. In *410 Jeswald v. Hutt (1968),
{¶ 34} Appellant complains that reliance on Jeswald is inappropriate in the instant case because Jeswald only addressed the duties a landlord owes to invitees in a business, not residential, context. (Appellant's Brf. pp. 11-12). The Supreme Court, however, has held that this is a distinction without a difference. See LaCourse v.Fleitz (1986),
{¶ 35} The Court explained in LaCourse its reasoning as follows:
{¶ 36} "It may be argued that a landlord accepts the benefits of paying tenants and should therefore be charged with the responsibility of taking reasonable steps to ensure their safety. It could be said that a landlord is in the better position to take action to clear accumulated snow and ice, since he owns the property and has the easiest access to all common areas. However, these arguments are no less applicable to business owners. They invite business visitors to enter the premises in hopes of receiving a benefit from them. They are in the best position to keep their property free of accumulated snow and ice. We have declined to elevate these arguments over the more compelling reasoning that the business owner is justified in assuming that his visitors are perceptive enough to observe the conditions and prudent enough to proceed with caution. Moreover, the accumulation of ice and snow is not chargeable to the owner, who did not create it. This natural and unconcealed condition is distinguishable from other conditions, such as a loose stair railing or open elevator shaft, which are often not obvious to the user." Id.
{¶ 37} The key then, according to the Ohio Supreme Court, is not which party is in a better position to address the purportedly dangerous condition, but whether the dangerous condition was more apparent to the landlord than the invitee. The Court concluded that since the danger of slipping on ice and snow is every bit as obvious to the invitee as it was to the landlord, R.C. §
{¶ 38} In light of the Jeswald and LaCourse decisions, we can only hold that there is a similar bar on any duty one otherwise might expect a landlord to have *411 with respect to the condition of darkness. Even more than accumulations of ice and snow, darkness is a completely predictable event that is not of the landlord's making. In Bionci v. Boardman Local Schools, 7th Dist. Nos. 00 CA 6, 00 CA 83, 2001 Ohio 3197, this Court held that in light ofJeswald, supra, the trial court committed reversible error when it refused to instruct the jury that, "[d]arkness is always a warning of danger, and for one's own protection, it may not be disregarded;" and that, "[a] landowner who maintains a parking area for the accommodation of invitees is under no legal duty to illuminate the area at night." Id.
{¶ 39} This Court has also held that inadequate lighting on its own is not a basis for liability because, "[d]arkness is always a warning of danger, and for one's own protection may not be disregarded." Nemitv. St. Elizabeth Hosp. Medical Center, 7th Dist. No. 99 CA 202, 2001 Ohio 3315; citing, Jeswald,
{¶ 40} Similarly, in Schneider v. Associated Estates Realty, (March 4, 1999), 8th Dist. No. 73981, another reviewing court held that a landlord has no common law duty to illuminate a parking lot. InSchneider, the plaintiff filed suit against his landlord alleging that he sustained injury when he tripped over a recessed drainage grate as he cut across a grassy common area to get to the parking lot and his car. As in the instant case, the incident in Schneider occurred during the evening in an area of the premises that was apparently poorly illuminated. The plaintiff claimed that partly because of the poor illumination, the grate on which he tripped was not visible. In affirming the trial court's decision to grant summary judgment in favor of the landlord, the court remarked as follows:
{¶ 41} "As to darkness being a factor in a trip-and-fall situation on the premises of a building owner, it must be remembered that darkness itself constitutes a sign of danger and the person who disregards a dark condition does so at his or her own peril." Id. at p. 3, citing Jeswald, at paragraph three of the syllabus, and Brandimarte v. Packard (May 18, 1995), 8th Dist. No. 67872.
{¶ 42} It was after 10:00 p.m. when Appellant arrived at the Salem Heritage apartment complex. (Appellant's Depo., Dec. 14, 2000, p. 23). Appellant testified that it was dark outside. (Appellant's Depo., Dec. 14, 2000, p. 24). Appellant characterized the conditions outside her friend's building that night as "pitch-dark." (Appellant's Depo., Dec. 14, 2000, p. 23). Such a situation presents an obvious danger from which Appellant should have taken steps to protect herself. *412 Instead, she made the trip in and out of the car wearing narrow high-heeled shoes. She stumbled forward when one of her heels caught in a driveway sewer grate. (Appellant's Depo., Dec. 14, 2000, pp. 29-30).The following colloquy from Appellant's deposition is instructive:
{¶ 43} "Q. * * * [Y]ou got out and walked across the grassy area in the dark?
{¶ 44} "A. Yes.
{¶ 45} "Q. And walked across that driveway in the dark?
{¶ 46} "A. Yes.
{¶ 47} "Q. Even though you knew it was dangerous?
{¶ 48} "A. Yes, I didn't think I was going to fall.
{¶ 49} "Q. Well, you knew it was dangerous, that's what you told me, isn't that what you just said?
{¶ 50} "A. I did say it, but —
{¶ 51} "Q. Well, isn't it true — you're just telling me the truth, aren't you?
{¶ 52} "A. I don't know how to explain that. But at the time I wasn't thinking I'm going to fall.
{¶ 53} "Q. I know you weren't thinking you were going to fall. You just told me you knew there was no lights in that building, it was dangerous?
{¶ 54} "A. That part is true, yes.
{¶ 55} "Q. And you knew it that night, didn't you?
{¶ 56} "A. I guess I did.
{¶ 57} "Q. All right. And you got out of the car and you walked in that area even though it was dark and even though it was dangerous; that's true also isn't it?
{¶ 58} "A. That is true." (Appellant's Depo., Dec. 14, 2000, p. 52).
{¶ 59} As this passage illustrates, the danger here was evident to Appellant even before she entered the building. Accordingly, her, "* * * knowledge of the condition removes the sting of unreasonableness from any danger that lies in it, and obviousness may be relied on to supply knowledge." Wicichowski v. Gladieux V. Enterprises, Inc. (1988),
{¶ 60} Accordingly, notwithstanding the fact that the trial court granted summary judgment based on the erroneous conclusion that Appellant was a *413 licensee on Appellee's property, the decision to grant summary judgment in this case was proper. After reviewing the record de novo, this Court is forced to conclude that there is no genuine issue of material fact that the danger presented in this case was any more foreseeable to Appellee than it was to Appellant. Based on the record and given the obvious danger that darkness presents, there is nothing on which to hold Appellee liable to Appellant for the injury she sustained when she fell on Appellee's property.
{¶ 61} Since we must overrule Appellant's three assignments of error, this Court affirms the judgment entered by the Columbiana County Court of Common Pleas.
Donofrio, J., and DeGenaro, J., concur.
