Opinion
No. 89-01664.
Decided April 25, 1990.
Albert A. Yannon, for plaintiff.
Anthony J. Celebrezze, Jr., Attorney General, and Timothy J. Bojanowski, for defendant.
This action arose as a result of an incident that occurred on June 25, 1988, at the Ohio State University ("OSU") campus. Plaintiff, Dr. Stephan J. Doelker, was on the university's grounds to attend a sporting event known as the "Special Olympics," which is held for the benefit of the mentally retarded. Plaintiff is a dentist and a consultant for OSU in dentistry for the mentally retarded pursuant to a personal services contract with OSU. He was not, however, an employee of the university at the time of the incident.
On the above date, plaintiff was attempting to visit a group of mentally retarded persons temporarily residing at OSU's Bradley Hall, a dormitory facility. Plaintiff entered Bradley Hall through the building's first set of double doors, which are toward the outside of the building and provide entrance into a glass vestibule containing additional steps and a second doorway. He then exited the building for a short period of time to obtain information. He returned to the entrance of Bradley Hall, and, phone number in hand, began looking for a telephone. He proceeded through the first doorway into the vestibule; at which point, he noticed a telephone on the lobby wall to his right. However, he failed to enter the building's lobby through the second doorway and instead walked into the large pane of glass immediately to the right of the door. The glass shattered on impact and plaintiff suffered injuries.
On January 11, 1989, plaintiff filed this action against the defendant. Initially, plaintiff based his allegations on common-law principles of negligence and statutory violations of the Ohio Building Code. Plaintiff asserted that "he was not warned of the hazardous entranceway and was conducting himself as a reasonably prudent person upon entering the entranceway at Bradley Hall." (Plaintiff's amended complaint, paragraph nine.)
Plaintiff's action came to trial on March 21, 1990, concerning the sole issue of liability. At the commencement of trial, plaintiff's counsel stated that discovery proceedings in this case provided sufficient evidence to show that defendant did not violate any statutory building provisions relating to the subject glass and, therefore, that such allegations were no longer in dispute. The court and parties agreed to strike plaintiff's allegation in this regard and to proceed on the basis of common-law negligence. The court has duly considered the evidence and arguments of counsel and renders the following decision.
In essence, plaintiff contends that the glass pane was not obvious to a reasonably prudent person and the area comprising the vestibule, i.e., the glass inner doors and side glass panels, "[combined] with the arrangement of furniture and lights inside the doorway created an `illusion of space.'" (Plaintiff's amended complaint, paragraph eight.)
The plaintiff has the burden of proof to show by a preponderance of the evidence that the defendant was negligent under the circumstances. It is axiomatic in Ohio that the three elements of negligence are: (1) a duty of care owing to the plaintiff; (2) a breach of that duty by a negligent act or omission; and (3) an injury proximately resulting from such breach. Di Gildo v. Caponi (1969), 18 Ohio St.2d 125, 47 O.O.2d 282, 247 N.E.2d 732; 70 Ohio Jurisprudence 3d (1986) 46, Negligence, Section 9. In order to define what duty the defendant owed to plaintiff there first must be an inquiry as to plaintiff's legal status.
Plaintiff contends that his legal status at the time of the incident was that of an invitee or social guest. 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. The Ohio Supreme Court has refused to categorize social guests as invitees or licensees and, thus, the classification is distinct. 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 to 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.
Defendant, however, contends that plaintiff's status was that of a licensee. 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 in part.) Light v. Ohio University (1986), 28 Ohio St.3d 66, 68, 28 OBR 165, 167, 502 N.E.2d 611, 613.
Upon consideration of the above legal principles, the court is of the opinion that plaintiff's status at the time of the incident was that of a licensee. Plaintiff entered and remained on OSU's campus for his own pleasure and convenience. He had no expressed invitation and was not there for business purposes. He was not present on the campus to perform services, but rather to visit his friends. Also, defendant derived no benefit from plaintiff's presence on the premises.
The duty owed to a licensee is as follows:
"A licensee who enters upon the property of another takes his license subject to its attendant perils and risks. The licensor is not liable to the licensee for ordinary negligence, and owes him no duty except to refrain from wantonly, willfully, or intentionally injuring him, to avoid exposing him to known hazards or hidden dangers, to refrain from any affirmative act of negligence, and to warn him of any danger. Therefore, the duties owed to a licensee are much the same as those owed to a trespasser. * * *" (Citations omitted and emphasis added.) 76 Ohio Jurisprudence 3d (1987) 21-22, Premises Liability, Section 9. See, also, Euclid-105th Properties Co. v. Beckman (App. 1931), 36 Ohio Law Abs. 164, 42 N.E.2d 789, and Scheurer v. Trustees of the Open Bible Church (1963), 175 Ohio St. 163, 23 O.O.2d 453, 192 N.E.2d 38.
Therefore, the question narrows to whether the defendant acted in a manner which would be considered wanton or willful. Upon review of the evidence, the court finds that the question must be answered in the negative.
The evidence demonstrates that beyond the main door at Bradley Hall there existed a second doorway, which was enclosed by a glass vestibule. Both doors were open at the time of the occurrence. The inner door had aluminum supports surrounding it. The glass panes of the vestibule were set upon a wood base or sill that was approximately fourteen and one-half inches in height. There were curtains hanging from the ceiling on both sides of the inside door that, when drawn, partially covered the door's side panes of glass and the pane of glass perpendicular thereto. On the date of the events at issue, the curtains were not positioned in front of these panes of glass.
Plaintiff testified that it was a bright, sunny day, and, that when he entered Bradley Hall, his eyes did not immediately adjust to the darker setting. Such circumstances created the illusion of space. The evidence demonstrates that the aluminum supports surrounding the glass, in conjunction with the wooden base, were open and obvious and provided notice to persons walking through the vestibule that it was enclosed with large glass panes. In addition, the doors were open showing that an entranceway existed. As previously mentioned, plaintiff had successfully walked through the set of doors a few minutes prior to the accident and thus had the opportunity to view the accident area from both directions, i.e., entering and exiting. Testimony revealed that the subject glass did not violate building codes when Bradley Hall was constructed in 1954. Also, there had been no previous accidents involving similar circumstances. Accordingly, the court finds, by a preponderance of the evidence, that defendant did not act in a wanton and willful manner.
The court further finds that plaintiff failed to exercise due care for his own well-being. Plaintiff had the responsibility of evaluating the situation in a reasonable manner and acting in a way which avoided 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. * * *" (Citations omitted.) 70 Ohio Jurisprudence 3d (1986) 169, Negligence, Section 78.
The court is of the opinion that plaintiff's inattentiveness to the surrounding circumstances and failure to protect himself from an obvious danger were the proximate causes of his accident.
Assuming, arguendo, that this court had determined that plaintiff was an invitee or a social guest, the court further finds that any breach by defendant was less of a causative factor than was plaintiff's own negligence. The following analysis, therefore, concerns such an alternative view of plaintiff's legal status whereby defendant would have owed a duty of ordinary care.
The court realizes that defendant was under no obligation to bring the glass into compliance with the new building codes. However, the court believes that defendant could have utilized additional safety measures. The cost of installing new glass panes prior to the accident would not have been excessive. At the least, decals or other markings could have been placed on the glass surface.
Under the comparative negligence statute, R.C. 2315.19, the inattentiveness of plaintiff must be weighed against any negligence of the defendant. 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." (Citations omitted.) 70 Ohio Jurisprudence 3d, supra, at 144-145, Section 65.
In view of the above, assuming defendant owed a duty of ordinary care, the court finds that the percentage of negligence that directly and proximately caused the accident, attributable to each party in relation to one hundred percent, is as follows: Plaintiff is found to be ninety percent negligent and defendant is found to be ten percent negligent. Therefore, defendant would not be found liable under these circumstances.
The burden fell upon plaintiff to establish that defendant's actionable negligence was greater than his own and that defendant's negligence proximately caused his injury. In view of the above, the court concludes that plaintiff failed to carry this burden by a preponderance of the evidence, and it follows that defendant is entitled to judgment.
Judgment for defendant.
RUSSELL LEACH, J., retired, of the Franklin County Municipal Court, sitting by assignment.