Stinson v. Cleveland Clinic Foundation , 37 Ohio App. 3d 146 ( 1987 )

I must respectfully dissent from the majority opinion due to the fact the majority's interpretation of Bowins v. EuclidGeneral Hosp. (1984), 20 Ohio App.3d 29, 20 OBR 31,484 N.E.2d 203, is misplaced. Specifically, the majority identifies the law in Bowins applicable to the case sub judice, but then proceeds to ignore the quotation to create a genuine issue of material fact as to "whether hospital security exercised reasonable care in not inspecting this particular sidewalk under the circumstances of this case."

In Bowins, supra, this court held as follows:

"* * * Only when ice and snow, which the owner or occupierknows or should know, have created a condition substantially more dangerous to an invitee than he could reasonably anticipate will the owner's failure to remove the ice and snow constitute negligence. * * * Even then, if the owner or occupier and theinvitee are equally aware of the dangerous condition and theinvitee voluntarily exposes himself to the hazard, the owner oroccupier will not be liable. * * * An invitee is required toexercise some degree of care for his own safety. * * *" (Citations omitted and emphasis added.) Id. at 31, 20 OBR at 32-33, 484 N.E.2d at 205.

The majority claims a triable issue of fact exists as to whether appellee knew or should have known about the condition of the sidewalk. In this regard the court asserts there exists an issue of material fact relative to whether the security personnel should have inspected the sidewalk and alerted the maintenance department as to the condition of the sidewalk, assuming, of course, a hazard existed on the sidewalk so as to necessitate contacting the maintenance department.

In reversing the trial court's grant of summary judgment in favor of appellee, the majority places a higher duty of care upon the hospital than that which is owed to Mrs. Stinson as an invitee of the hospital. Specifically, an invitee is owed a duty of ordinary care, i.e., the owner must use ordinary care in maintaining his premises free from dangers which are not discoverable by an ordinary person using reasonable care. Davis v. Charles Shutrump Sons Co. (1942), 140 Ohio St. 89, 23 O.O. 299, 42 N.E.2d 663. In requiring the security personnel to personally inspect the sidewalk and constantly alert the maintenance department as to its ever-changing and plainly discernible condition, the majority places an unduly high standard of care upon the security personnel, not the reasonable ordinary degree of care owed an invitee. As the record reveals, sidewalk inspection is an incidental duty placed upon the security personnel. Their primary duty is to provide for the security of the hospital, its staff and invitees. In this regard appellee's security department is similar to a police department in that the police provide for the security of a municipality's citizenry and do not distract themselves with sidewalk inspection. The majority's analysis, however, militates against effective performance of this primary duty by requiring security personnel to constantly inspect the sidewalks in order to alleviate liability in these types of slip and fall cases.

In the event the security personnel are imbued with the higher degree of care advocated by appellants and accepted by the majority, Mrs. Stinson's voluntary exposure to the sidewalk condition precludes any liability on behalf of the hospital. In this regard Bowins, supra, states as follows:

"* * * Even then, if the owner or occupier and the invitee are equally aware of the dangerous condition and the invitee voluntarily exposes himself to the hazard, the owner or occupier will not be liable. * * * An invitee is required to exercise some degree of care for his own safety. * * *" (Citation omitted.)Id. at 31, 20 OBR at 33, 484 N.E.2d at 205.

As an initial matter, both Mrs. Stinson and the security personnel were equally aware of the falling temperature. The record reveals Mrs. Stinson described the temperature as "cold." Moreover, the record reveals Mrs. Stinson voluntarily exposed herself to the hazard which caused her injury. In this regard Mrs. Stinson testified in deposition that there was an ice patch of approximately two feet by five feet in the middle of the sidewalk. The remainder of the sidewalk and surrounding area was dry, i.e., free of ice. Mrs. Stinson voluntarily chose to walk upon this "postage stamp" area of ice rather than simply walk to the side and avoid the hazard. The area was open to view. The sidewalk condition was clearly discernible and the area was well lit. Mrs. Stinson's awareness of the decreasing temperature, coupled with her voluntary entrance on the ice when the immediate surrounding area was dry and safe to traverse, precludes the hospital, as a matter of law, from being found negligent.

For the foregoing reasons, I would affirm the trial court's grant of summary judgment.