Smith v. United Properties, Inc. ( 1965 )

HebbeRt, J.

Since these cases present the same question of law, they will be consolidated for the purposes of this opinion and will be referred to in the singular.

The question presented here may be stated in this language:

Does the rule of liability applicable to a municipality as provided in Section 723.01, Revised Code, apply also to the liability of an owner of a shopping center to its invitees?

The statutory law and the common law perform separate functions in the continuous development of our system of jurisprudence.

Section 723.01 of the Revised Code provides:

“Municipal corporations shall have special power to regulate the use of the streets. The legislative authority of such municipal corporation shall have the care, supervision, and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts within the municipal corporation, and shall cause them to be kept open, in repair, and free from nuisance.”

Section 723.01 of the Revised Code is a grant of special power to the legislative authority of a municipal corporation by the General Assembly to regulate the use of the streets of a municipality. The principles of the common law, on the other hand, have been created and developed by the judicial branch of government and have been woven into our system of jurisprudence in the courtrooms not only in our country but far back in English judicial history.

The function of the common-law is well described in 9 Ohio Jurisprudence 2d 556, Section 6, in this language:

‘ ‘ The beauty and beneficence of the common-law is its flexibility. It grows from day to day. The courts in applying common-law principles must expand these principles to meet new problems arising from the growth and development of society. The boast of our common-law system is that its flexibility permits its ready adaptability to the changing nature of human affairs, so that whenever, either by the growth or development of society or by the statutory change of the legal status of any individual, he is brought within the principles of the common-law, then it will afford him the same relief that it has theretofore afforded to others coming within the reason of its rules.”

Abrogation of the common law by implication is not permitted. 9 Ohio Jurisprudence 2d 558, Section 7, reads:

“An intention of the General Assembly to abrogate common-law rules must be manifested by express language-, there is no abrogation of the common law by mere implication.” (Emphasis added.) See, also, Blythe v. Vail (C. P.), 26 Ohio Law Abs., 516.

From the foregoing principles, it appears to be quite well established that the General Assembly has the power to abrogate or modify the principles of the common law and the exercise of that power must be manifested by express language.

The statute — Section 723.01, Revised Code — imposes a duty upon a municipality to provide that its streets and other facilities mentioned “be kept open, in repair, and free from nuisance.” The statute deals solely with a problem of a municipality. It makes no mention whatsoever as to obligations growing out of the relationship between a storekeeper or a shopping-center owner and invitees. It necessarily follows that the General Assembly did not intend to abrogate or modify any common-law principles with respect to these obligations.

It is conceded that the plaintiff in the instant case was a business invitee of the defendant, and that the defendant owed her the common-law duty to exercise ordinary care. Beaney v. Carlson (1963), 174 Ohio St. 409; Englehardt v. Philipps (1939), 136 Ohio St. 73; annotation, 95 A. L. R. 2d 1341. The common-law duty of ordinary care is that degree of care which an ordinarily reasonable and prudent person exercises, or is accustomed to exercise, under the same or similar circumstances. See 39 Ohio Jurisprudence 2d 505, Negligence, Section 17, and authorities cited in footnote 11.

Defendant relies upon the holdings in Kimball v. City of Cincinnati, 160 Ohio St. 370; O’Brien v. City of Toledo, 167 Ohio St. 35; Gallagher v. City of Toledo, 168 Ohio St. 508. Those three cases deal with a duty imposed upon a city by statute, not a duty imposed by the common law. The syllabus in Kimball is:

“A variation of from one-half to three-fourths of an inch in the height of adjacent sections of a sidewalk is a slight defect commonly found in sidewalks, and the municipality in which such sidewalk is located is not guilty of a violation of the duties imposed upon it by Section 3714, General Code, by reason of the existence of such defect.” (Emphasis added.) (Section 3714, General Code, is now Section 723.01, Bevised Code.)

In the statement of the case in Kimball, plaintiff, an elderly woman, “was walking along Bace Street in the downtown portion of Cincinnati looking into store windows as she passed. It was a bright clear day. She was alone and there were few persons on the sidewalk. She was carrying no packages except her purse.” (Emphasis added.)

In O’Brien, the plaintiff “was familiar” with the street, “having used it many times.” There was a crack in the cement sidewalk one and one-half to one and three-fourths inches wide. She claimed that she fell and was injured.

In Gallagher, “at the place of the accident the sidewalk was intersected by a driveway leading from a parking lot surfaced with loose gravel or stones. Particles of loose stone surface were carried onto the sidewalk by automobiles being driven from the parking lot.” The driveway “was made uneven, slippery and hazardous for pedestrian use by reason of the deposit and accumulation of said stones. * * * the accident occurred between 7:30 and 8 o ’clock on a clear morning with good visibility.” One slab of the sidewalk had dropped about one and one-half inches below the adjoining block. Plaintiff alleged that she stepped from the upper to the lower slab and “on the stones which threw her off balance, causing her to fall.”

In those three cases, all the evidence was before the trial courts as well as the appellate courts. In the instant case, the sustaining of the demurrer did not permit the consideration of any evidence.

It may be well to observe also that Section 723.01 of the Bevised Code, being in derogation of the common law, is strictly construed in favor of the city. Such a rule does not apply in the case at bar. We have no quarrel with the decisions in the above three cases. The questions in those cases grew from a duty imposed by statute upon a municipality. Here the court is required to construe the common law in the light of all surrounding circumstances.

In Griffin v. City of Cincinnati, 162 Ohio St. 232, a case involving municipal sidewalks, at page 235, is the following from the opinion:

“An abrupt raise in a sidewalk does not of itself constitute negligence on the part of the municipality. ” That is the holding in Kimball, O’Brien and Gallagher. The defect or abrupt raise in the sidewalk was the sole question in those cases. However, Griffin continues:

“All the attendant circumstances should be taken into consideration, and whether a sidewalk is reasonably safe or dangerous for travel does not depend alone upon the matter of elevation or depression. The locality, the amount of use and travel, the condition of the sidewalk as a whole, whether it is in a business or residence neighborhood, and whether it is in a solidly or sparsely built up section are all circumstances which must be taken into consideration in addition to an elevation or depression. * * *” (Emphasis added.)

Of course there are sparsely settled areas within a municipality and also long stretches of sidewalk where pedestrian traffic is light. In a shopping center the sidewalk, at certain times, is densely crowded with people bent on shopping. That condition would necessarily require of the defendant owner a greater degree of care to protect invitees because the danger to them by reason of a defective sidewalk in a crowded concourse would be increased.

The court below did not have the evidence upon which to apply the common-law rule of liability of a shopping center to an invitee. In a dense crowd, especially during evening shopping hours, it is practically impossible for a pedestrian to see the sidewalk in front of him. Furthermore an invitee may be carrying packages or parcels. There may be distractions in a show-window display to attract the attention of the invitee. These and all other facts and circumstances must be assessed to determine the danger in which the invitee may be placed, in order that the proper degree of care may be imposed upon the shopping center owner.

For the reasons herein set out, the judgments of the Court of Appeals are affirmed.

Judgments affirmed.

Corrigan, Schneider and Brown, JJ., concur. Taft, C. J., Matthias and O’Neill, JJ., dissent. CoRRigan, J., of the Eighth Appellate District, sitting for Zimmerman, J.