Summary
holding a hump in a parking lot covered with snow to constitute a natural accumulation because "[i]t was the kind of condition which comes within the classification of a `minor imperfection' — one reasonably to be anticipated on a traveled surface, and for the existence of which there is ordinarily no liability"
Summary of this case from Jeffries v. U.S.Opinion
No. 41355
Decided July 17, 1968.
Negligence — Operator of private motor vehicle parking area — Illumination at night — Removal of snow and ice — Minor imperfections in surface of area — Darkness a warning of danger — Assumption of risk — Contributory negligence.
1. One who maintains a private motor vehicle parking area, for the accommodation of those he serves in a professional or business way, is generally under no legal obligation to illuminate the same at night or to remove a natural accumulation of snow and ice therefrom.
2. Generally, no liability exists for minor imperfections in the surface of such a parking area — those slight irregularities reasonably to be anticipated in any traveled surface.
3. "Darkness" is always a warning of danger, and for one's own protection it may not be disregarded.
4. An invitee who, in darkness and with knowledge that a private motor vehicle parking area is covered with a natural accumulation of ice and snow, ventures onto such area and slips or trips and falls, either assumes the risk of such misfortune, or, if the one maintaining such area may be charged with any negligence in its maintenance, the one who falls, in the circumstances described, is also chargeable with negligence which is a direct contributing cause of the fall.
APPEAL from the Court of Appeals for Mahoning County.
Frances Jeswald instituted this action in the Court of Common Pleas of Mahoning County against H. Bryan Hutt, Wilfred B. Dodgson and Kenneth J. Hovanic, medical doctors engaged as partners in the practice of pediatrics, to recover damages for personal injuries she claims to have suffered when she slipped or tripped and fell in a paved motor vehicle parking area covered with a natural accumulation of frozen slush, which area was maintained by defendants at the rear of the office building they occupied in the city of Youngstown.
Such claimed injuries occurred in the early evening of January 7, 1963, and are alleged to have been proximately and directly caused by the negligence of the defendants in the following respects: Failure to provide lighting facilities, failure to clean the parking area of the accumulated ice and snow, and by allowing a "hump" to be and remain in such parking area. Plaintiff alleges that by the combination of such derelictions she was caused to fall.
After express admissions and denials as to certain allegations of the petition, the answer closes with a general denial.
Plaintiff recovered a verdict and judgment for $10,000, but defendants' motion for judgment notwithstanding the verdict was sustained. Plaintiff appealed such adverse judgment to the Court of Appeals on questions of law, where, by a divided vote of the judges, the judgment below was reversed and final judgment was rendered for the plaintiff.
Allowance of the motion to require the Court of Appeals to certify the record brings the cause here for decision on the merits.
Mr. Bernard J. Wilkes and Mr. Daniel L. Rossi, for appellee.
Messrs. Manchester, Bennett, Powers Ullman and Mr. John H. Ranz, for appellants.
The evidence shows that in the late afternoon of January 7, 1963, plaintiff, a widow in her fifties, her daughter-in-law and the latter's six-month-old daughter paid a professional visit to one of the defendants, Dr. Hovanic, for treatment of the infant. They left the doctor's office by the rear door of the building at about 6 p.m. It was then dark, and the parking area where they had left their automobile was covered with frozen slush — the freezing having occurred during the time they were in the doctor's office. Plaintiff was immediately aware of the darkness and that an extremely slippery condition existed. She testified that "it was real slippery, no lights, pitch dark, you couldn't see your hand in front of you." With the infant in her arms and her daughter-in-law walking beside her, plaintiff slipped or tripped and fell as she neared the automobile.
On direct examination, plaintiff testified:
"* * * and all at once I hit something and I went down * * *. When I tried to get up, I couldn't, and I touched the hump, or whatever was there."
According to two photographs introduced in evidence as exhibits and testimony relating to the subject, the so-called "hump" consisted of a low crown or ridge extending across the joinder of an older and newer part of the parking lot, at the termination of a slight upgrade. It was the kind of condition which comes within the classification of a "minor imperfection" — one reasonably to be anticipated on a traveled surface, and for the existence of which there is ordinarily no liability. Helms v. James Dickey Post No. 23, American Legion, Inc., 5 Ohio St.2d 60, 213 N.E.2d 734. Attention is also directed to the Ohio cases collected and commented upon by Taft, C.J., in his dissenting opinion in Smith v. United Properties, Inc., 2 Ohio St.2d 310, 209 N.E.2d 142.
It was elicited from plaintiff upon cross-examination that she did not notice or discover any underfoot unevenness until after she fell.
The dissenting judge in the Court of Appeals remarked in his opinion:
"A review of the testimony and defendants' exhibits No. 1 and No. 2 [the photographs] convinces me that the defendants were not negligent in the claimed respects. The testimony as to the `lump' in the parking lot does not establish that such `lump' (or `hump,' as it is so referred to by counsel) was a factor relating to the fall, resultant injuries and damages. No other factors are present to remove this case from the ordinary fall down on a natural accumulation of ice and snow. * * *"
In the case of Sidle v. Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589, this court held in the second and third paragraphs of the syllabus:
"2. The dangers from natural accumulations of ice and snow are ordinarily so obvious and apparent that an occupier of premises may reasonably expect that a business invitee on his premises will discover those dangers and protect himself against them. ( Debie v. Cochran Pharmacy-Berwick, Inc., 11 Ohio St.2d 38, approved and followed.)
"3. Ordinarily, an owner and occupier has no duty to his business invitee to remove natural accumulations of snow and ice from private walks and steps on his premises. (Paragraph two of the syllabus in Debie v. Cochran Pharmacy-Berwick, Inc., 11 Ohio St.2d 38, approved and followed.)"
Defendants were not guardians of plaintiff's person or insurers of her safety, and they were under no legal obligation to light the parking area or to remove the natural accumulation of ice and snow therefrom. McKinley v. Niederst, 118 Ohio St. 334, 160 N.E. 850, and Debie v. Cochran Pharmacy-Berwick, Inc., supra ( 11 Ohio St.2d 38, 227 N.E.2d 603).
It was squarely held in the case of Warren v. Squire Road Cabin, Inc., 347 Mass. 764, 196 N.E.2d 927, that the owner of an eating establishment had no duty to provide illumination in the parking area he maintained for his business invitees. The court there said that "the condition of darkness was obvious to the plaintiff."
"Darkness" is always a warning of danger, and for one's own protection it may not be disregarded. Its disregard may preclude the recovery of damages for personal injuries. Central Publishing House of Reformed Church v. Flury, 25 Ohio App. 214, affirmed, 118 Ohio St. 154, 160 N.E. 679.
Defendants did not create the sudden and natural accumulation of frozen slush in the parking area, nor were they obliged to remove it. Moreover, defendants did not otherwise create or permit a hazard on their premises which would subject them to liability.
Here, plaintiff realized that it was dark and that an exceedingly slippery condition existed, and, when she ventured across the parking lot with the infant in her arms and with full knowledge of those conditions, she assumed the risk of a fall. If, on any hypothesis, defendants can be charged with negligence — the breach or violation of any legal duty they owed plaintiff — plaintiff herself, in the described circumstances, was chargeable with negligence which was a direct contributing cause of her misfortune. See Johnson v. Citizens National Bank of Norwalk, 152 Ohio St. 477, 90 N.E.2d 145, 34 A.L.R. 2d 1361, and the cases cited and discussed therein. Compare Fogle v. Shaffer, 167 Ohio St. 353, 148 N.E.2d 687.
Although plaintiff presents a situation which evokes sympathy, from a legal standpoint the trial court correctly rendered judgment for the defendants, and the Court of Appeals erred in reversing that judgment. Therefore, the judgment of the Court of Appeals is reversed, and the judgment of the Court of Common Pleas in favor of the defendants is affirmed.
Judgment reversed.
TAFT, C.J., MATTHIAS, O'NEILL and BROWN, JJ., concur.
HERBERT and SCHNEIDER, JJ., dissent.