Gelbman v. Second National Bank , 9 Ohio St. 3d 77 ( 1984 )

Per Curiam.

The issue before us is whether we should impose an affirmative duty on a property owner to protect third parties from the negligent acts of business invitees which occur outside the owner’s property and are beyond the owner’s control. We decline to impose such a duty.

In Ohio it is well-established that liability in negligence will not lie in the absence of a special duty owed by the defendant. Strother v. Hutchinson (1981), 67 Ohio St. 2d 282, 285 [21 O.O.3d 177]; Feldman v. Howard (1967), 10 Ohio St. 2d 189, 193 [39 O.O.2d 228]; Kauffman v. First-Central Trust Co. (1949), 151 Ohio St. 298, 306 [39 O.O. 137]; Baier v. Cleveland Ry. Co. (1937), 132 Ohio St. 388, 391 [8 O.O. 208]. Accordingly, it is incumbent upon the plaintiffs herein to demonstrate the existence of a special duty on the part of defendants before a cause of action can be made.

Both parties refer to Section 318 of the Restatement of the Law, Torts 2d, in regard to the duty of a possessor of land or chattels to control the conduct of a licensee which reads at page 126 as follows:

“If the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk or bodily harm to them, if the actor

“(a) knows or has reason to know that he has the ability to control the third person, and

“(b) knows or should know of the necessity and opportunity for exercising such control.”

Neither party, however, refers to the following sections of the Restatement of the Law, Torts 2d:

“[Section 315] General Principle

“There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless

“(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or

“(b) a special relation exists between the actor and the other which gives to the other a right to protection.” Id. at 122.

“[Section 314] Duty to Act for Protection of Others

“The fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.” Id. at 116.

Both Sections 314 and 315 articulate the general rules of the duties imposed on third parties. Thus, unless a special relationship between defendant-owner and plaintiff-third party is extant by statute or judicial determination, no duty may be imposed.

The first inquiry is whether a specific statutory duty exists. In a case factually analogous to the instant case, the Court of Appeals of New York held that no duty existed between a parking garage operator and a third-party pedestrian struck by a car operated by a patron exiting the garage. Pulka v. Edelman (1976), 40 N.Y.2d 781, 390 N.Y.Supp. 2d 393. Judge Cooke, writing for the majority, stated at page 783, that “the fundamental issue is whether the defendant garage owed a duty to plaintiff.” Although it was undisputed that the driver of the car owed a duty to the plaintiff by virtue of New York’s driving statute, Section 1173 of the Vehicle and Traffic Law (L. 1959, ch. 775, now L. 1970, ch. 603), no such statute was in effect to create a duty between the pedestrian and the garage operator. The court at page 785 declared:

“The statutes impose a duty on the driver because pedestrians are entitled to legal protection from the conduct of the driver. To this extent they may seek legal redress and are not without a remedy. To hold that pedestrians are similarly entitled to legal protection from the garage for the conduct of its patrons would be to create an unnecessary extension of a duty beyond the limits required under the law of negligence as we know it.”

Similarly, in the case sub judice, R.C. 4511.44¹ establishes a duty for drivers, entering traffic from a driveway, to stop and yield to oncoming traffic. Thus, a duty certainly existed on the part of the driver as against the plaintiff Gelbman. The driver, however, is not before us as defendant, and no such statutory duty is imposed on the owner of the Burger King property under the present set of circumstances.

The concern of the New York court’s decision in Pulka (see, also, Margolin v. Friedman [1978], 43 N.Y. 2d 982, 375 N.E. 2d 734) is similar to our concern today — whether defendants had a duty to control the negligent actions of the driver who actually struck the plaintiff. See, generally, Harper & Kime, The Duty to Control the Conduct of Another (1934), 43 Yale L.J. 886; Restatement of the Law, Torts 2d, Section 315; Prosser, Law of Torts (4 Ed. 1971) 348-350. In those instances where a duty to control arises as to property owners, it appears that duty has been extended “* * * quite generally to include an obligation on the part of any occupier of premises to exercise reasonable care to control the conduct of any one upon them, for the protection of those outside.” Prosser, swpra, at 350. Appellants herein have not, however, been able to find any authority for extending a duty to control third parties to a property owner for the acts of unrelated individuals, such as business invitees, who have left the owner’s premises, have negligently entered a public thoroughfare outside the purview of the owner’s control, and thereby negligently injure a third party. As Judge Cooke pointed out in Pulka, supra, at page 785:

“* * * Although it is reasonable to require one person to be responsible for the negligent conduct of another in some instances, it is unreasonable to impose that duty where the realities of every day experience show us that, regardless of the measures taken, there is little expectation that the one made responsible could prevent the negligent conduct.”

For the reasons articulated above we decline to impose an affirmative duty on a property owner to protect third parties from the negligent acts of business invitees which occur outside the owner’s property and are beyond the owner’s control. Accordingly, we affirm the judgment of the court of appeals.

Judgment affirmed.

Celebrezze, C.J., W. Brown, Locher and Holmes, JJ., concur. Sweeney, C. Brown and J. P. Celebrezze, JJ., dissent.

1 R.C. 4511.44:

“The operator of a vehicle * * * about to enter or cross a highway from any place other than another roadway shall yield the right of way to all traffic approaching on the roadway to be entered or crossed.”