Summary
In Schell v. United Parcel Serv., 61 Ohio Misc.2d 421, 579 N.E.2d 791 (Ohio Com.Pl. 1989), the Ohio court dealt with a nearly identical set of facts to the case at bar and granted summary judgment in favor of the defendant delivery company.
Summary of this case from Galullo v. Federal Express Corp.Opinion
No. 28912.
Decided November 28, 1989.
Gallagher, Milliken Stelzer and Ralph W. Gallagher, for plaintiffs.
Jones Bahret and Keith J. Watkins, for defendants.
Plaintiff wife charges defendants with negligence causing her bodily injury, resulting in loss of consortium to her husband, also a plaintiff herein. Defendants, United Parcel Service ("UPS") and its delivery driver Ross S. Boland, ask summary judgment dismissing the complaint with prejudice, contending that the undisputed facts show that reasonable minds must conclude that defendants were either free from negligence or, if chargeable with negligence, the negligence of plaintiff wife far exceeded defendants' negligence.
As counsel for all parties assert they have been unable to discover any action involving similar facts, this may be a case of first impression. On Wednesday, December 10, 1986, between 9:00 p.m. and 10:00 p.m. plaintiff, Patty I. Schell, a lady of fifty-four years, was with her husband, Richard L. Schell, at their home near Bryan, Ohio. It had become dark outside when plaintiff, who was wearing slippers and a robe, heard a knock on the door. She went to the bathroom door and told her husband who was in the bathtub, "There's someone at the door," and indicated that she would answer it. She turned on the porch light and looked out the small window of about six inches by six inches in the solid wood door. She could see no one outside. She opened the main door and looked out the self-closing, metal and glass storm door some few inches beyond. She was still unable to see any visitor. She proceeded to step out onto the porch and her foot struck a package lying in the space between the two doors. It was about ten inches by twelve inches by two inches and weighed about two or two and one-half pounds; it contained cheese. Plaintiff lost her balance and fell out the door and came to rest on the porch floor. Even though the room inside and the area outside were lighted and there was nothing to prevent plaintiff from seeing the package, she never saw it until after her fall because she was not then expecting it to be there. From her fall, plaintiff suffered bruises to her face, cheek, mouth and hand, the back of her right hand suffering a severe blow. When her body had come to rest from the fall, she was completely outside the house and unconscious; her unconscious state lasted sometime but did not exceed ten minutes. Later, she discovered her number eight tooth had been broken in half, and she began to have headaches which have become worse. She had, by September 1, 1988, received or was still receiving the attention of family practitioners of medicine, a dentist and a neurosurgeon for ailments she attributes to the aforementioned fall.
As background matter it is also conceded that plaintiff enjoyed generally good health prior to December 10, 1986 with good eyesight except she needed glasses for fine or close work, that she was the mother of two grown daughters, and when questioned in September 1988 was employed at a catalog order store of Sears, Roebuck Company and had been so employed for ten years. Her best recollection is that the delivered package of cheese was a gift from a hail insurance company.
On December 10, 1986, defendant Ross S. Boland, the delivery driver of defendant United Parcel Service, was forty years of age and had been so employed by UPS a little over twenty years. He delivered the package at issue sometime after 9:00 p.m. on that day and knocked on plaintiffs' door after he had located the package behind the storm door in front of the main entrance; thereafter, he departed and marked his delivery record "DR," meaning "driver released," in accord with company instructions and policy. For a bit over three years prior to February 10, 1989 defendant Boland had been delivering a package every one, two or three months to plaintiffs' home and continues to do so. He recalls that, in December 1986, after the delivery in question, he delivered two very large parcels to plaintiffs' home which were left on "a side porch or at a side door." On each of these latter occasions, Boland left a delivery notice, as nearly at eye level as possible, on the back of the door where he would have left the packages had they fit at that location, hidden from view and protected from the weather. Delivery notices are small pieces of canary yellow paper, three inches by five inches, marked "DELIVERY NOTICE" at each end, and containing this information:
The reverse side of the form reads as follows:
UPS, at its Defiance, Ohio center where Boland had worked for at least two years prior to December 1986, adopted and followed a delivery procedure called the "340 method" to which driver Boland was subject. The procedure was instituted at Defiance by the showing of an instructional film to the drivers of the center. There were classes for the drivers and supervisors.
When Boland was asked what "340 method" meant, he replied:
"Well, that has to do [a] lot with your delivery methods. It's, it's the, you stop your truck, you honk your horn, you go in the back of your truck, you get your package, you come out, you lock your front door, you, as you're walking up to the house, if feasible, you sheet the numbers down. Like, if walking conditions are good, you check out the area like I always look for cars and stuff like that so, you know, that's a clue if somebody's home. You go to the door, you knock, you ring the bell if they've got one, and then you announce `United Parcel Service delivery.' If no one answers, then you DR the package."
Before "340" was adopted, Boland was required to obtain a signature for all packages delivered, except for about ten percent of the packages which required no signature. Boland explained:
"A. Okay, if a box comes through and it's got a shipping number on it, which all boxes do, okay, under the shipper number, we used to have some that said `REL' and then a three digit number, which is a release package. It actually, release packages actually start the DR because they didn't need a sig — because the company is saying, `You deliver them, you just release them, you leave them and we'll be responsible,' because that, because UPS really wasn't responsible, so we did have those and they were called release packages and they were handled in the same way as a DR except when DR came into effect, you know, they outlined, `This is the way it's going to be done,' you know. With the release, it was more or less driver's discretion, so to speak, I guess.
"Q. Back before 340 came into effect?
"A. Right, um-huh."
Under the "340" procedure not many, but a few, signatures are required. Again, Boland explained:
"There's some shippers that require a signature and you, UPS has a sticker that they give them and that sticker has to be stuck on next to the shipping label and it says, `Signature required.' Very few of those we get."
Boland described how he generally performed his work in December 1986 in this manner:
"The first thing I do is knock on the door or ring the doorbell or both, if they have * * * doorbells. If the package will fit between like a storm and a regular door, I leave it there. The practice is to leave it out of sight and out of weather. If, if that's not available, I look for another spot. If I put it in any other spot, I leave a delivery notice stating where I left it. I don't get a signature, or, you know, I don't have them sign for it."
Before "340" was adopted and signatures generally were required, Boland noted: "We would leave them with a neighbor or whatever and let them sign for it so, actually, the number wouldn't be as large as you probably think but I would say eight to ten, on an average." He explained that this meant about eight or ten packages of a daily load of packages averaging about three hundred. Calculation shows this to be near three percent of all packages.
Obviously, the "340" procedure permits delivery without obtaining signatures from recipients unless a shipper requires it. Prior thereto, a signature was always obtained unless a shipper permitted UPS to dispense with it. Boland also concedes that the "340" method permits UPS to be more efficient and productive with this testimony:
"Q. Do you find that since you are no longer required to obtain signatures that you are more efficient in terms of delivering the packages?
"A. Oh, yes, you can do so many more stops * * *.
"Q. That's because you don't have to go look for someone else to leave indirect or take the package back and try to deliver it a second time?
"A. Right, and you don't have to wait, you know, I mean, you get the old grannies, `I'm coming,' you know, and you stand there for five minutes. It just made it more efficient for us."
Still the record is devoid of any suggestion that the "340" delivery method endangers a single person who was not endangered by the prior procedure. Plaintiff argues that because "340" has assisted UPS to be more efficient, plaintiff has become a victim of the new procedure and UPS should be found liable. For this court, this contention is a non sequitur. Our law does not deny reward to those people who increase productivity by more efficient operation that does not increase any known or present danger.
The court now considers Ohio's law of negligence by noting the jury instructions found in 1 Ohio Jury Instructions, as pertinent to this action:
" 7.10 Negligence and ordinary care
"1. NEGLIGENCE. What is negligence? Negligence is a failure to use ordinary care. Every person is required to use ordinary care to avoid injuring another person or another's property.
"2. ORDINARY CARE. Ordinary care is the care that a reasonably (cautious) (careful) (prudent) person would use under the same or similar circumstances.
"* * *
"3. STATUTORY. A person may be required by law to do something or not to do something [the law prohibits]. Failure to do what is required by law is negligence, as is doing something the law prohibits.
"* * *
"5. ADDITIONAL — GREATER DANGER. The amount of care increases in proportion to the danger that reasonably should be foreseen. Ordinary care is a relative term. The test, though, is still ordinary care under the circumstances."
" 7.12 Duty to look
"1. DUTY TO LOOK. The parties * * * are * * * required to use ordinary care to discover and to avoid danger.
"2. LOOK EFFECTIVELY. A person is negligent if he looks but does not see that which would have been seen by a reasonably (cautious) (careful) (prudent) person under the same or similar circumstances."
" 7.13 Foreseeability
"1. GENERAL. In determining whether ordinary care was used, you will consider whether the defendant * * * ought to have foreseen under the circumstances that the natural and probable result of an act or failure to act would cause some (injury) (damage).
"2. TEST. The test for foreseeability is not whether he (they) should have foreseen the (injury) (damage) (precisely) (exactly) as it happened to the specific (person) (property). The test is whether under all the circumstances a reasonably (cautious) (careful) (prudent) person would have anticipated that (injury) (damage) was likely to result to (someone) (some thing) from the act or failure to act.
"* * *
"3. CONCLUSION. If (defendant) (plaintiff) (either party), by the use of ordinary care, should have foreseen some (injury) (damage) and should not have acted, or if (he) (they) did act, should have taken precautions to avoid the result, then the performance of the act or the failure to take such precautions is negligence." (Emphasis added.)
Viewing now the Ohio law of negligence in the circumstances of this case, this court must conclude that defendants are entitled to summary judgment because plaintiffs have not shown facts from which reasonable minds might conclude that defendants failed to use ordinary care in delivering a gift package to plaintiffs' doorstep. There is not the slightest showing that Boland, in following his employer's instructions, did any act or failed to do any act that a reasonably careful person would have foreseen as likely to injure, or even endanger, anyone; nor is there any showing that defendants did anything in violation of any statute or rule. Consequently, reasonable minds must conclude that defendants are free from any negligence, i.e., any failure to use ordinary care to avoid injury to plaintiff wife, and cannot be charged with liability to plaintiffs.
Cause dismissed with prejudice.
J. GARETH HITCHCOCK, J., retired, of the Court of Common Pleas of Paulding County, sitting by assignment.