Moran v. Wehrung ( 1951 )

OPINION

By DOYLE, J:

On the evening of May 17, 1947, John Moran, the plaintiff below, appellant herein, following an evening of night club entertainment, sought conveyance to or near his residence. A newly-made acquaintance offered the accommodation to carry him in his automobile in the direction of his home. As the two commenced to leave the club premises, Moran turned into the men’s room and the companion continued on, but stated that he would meet him across the street on the ramp leading to a parking area, where he presumably had left his car. Shortly thereafter, Moran departed from the club premises, proceeded across the street and up a ramp leading to a parking floor to look for his recent acquaintance (two structures having ramps for parking purposes were situated “across the street” approximately ninety feet apart). After several minutes of unsuccessful search on the ramp and parking area, rain commenced to fall, and Moran, while seeking shelter, fell from the outer extremity of the building to the ground twelve feet below and suffered serious inj uries.

It appears that, as Moran stood on the parking space floor, he observed to the east the wall of a building which he thought was flush with the floor upon which he was standing. His conjecture was wrong, because the outer eastern extremity of the parking floor ended five or six feet from the wall of the building toward which he looked. Along this outer side of the parking floor timbers were anchored, which served to prevent automobiles from moving over the edge.

As heretofore stated, Moran sought shelter from the rain, after failing to find his companion or his car, and not being conscious of the space between the buildings ran toward the building wall to the east, tripped over one of the timbers heretofore mentioned and was thrown through twelve feet of space to the ground below.

Suit for damages for personal injuries was commenced against the proprietor of the parking area, with the following allegations of negligence.

(1) In failing to provide a suitable fence, railing, guard rail or parapet around said roof so as to protect patrons or frequenters thereof from the hazard of falling therefrom.

(2) In failing to provide suitable lights or illumination, so as to reveal the presence and position of the edge of said roof;

(3) In placing certain large timbers at and around the edge of said roof, in such a position that persons walking thereon in the night season were likely to trip, stumble and fall.

(4) In placing said timbers in such an irregular fashion as to likely mislead persons walking thereon in the night season as to cause them to stumble and fall.

(5) In failing to give to the plaintiff warning of the hazards and dangers hereinbefore set forth.

(6) In failing to inspect the condition of said timbers and to cause them to be relined after they had been shoved around in irregular fashion by automobiles parked thereon.

(7) In failing to promulgate and enforce reasonable rules for giving warning to persons having occasion to be on the roof in said night season.

(8) In failing to provide for the plaintiff, as a frequenter of said premises, a place which was reasonably “safe” within the terms and provisions of §§871-13, 871-15 and 871-16 GC.

Issues were joined by the answer of the defendants; trial was held and a judgment was entered for the defendant upon a general verdict of the jury. From this judgment in the Court of Common Pleas of Cuyahoga County appeal was perfected to this court on questions of law.

The so-called “frequenter” statutes, §§871-13, 871-15 and 871-16 GC, are claimed by the appellant to apply to the facts in this case and error is claimed through the refusal of the court to make such application.

In this connection it must be observed that the injured litigant was not an employee or a workman of any kind on the parking area premises in a capacity connected or associated with work or labor. He was there solely in his own interest, for his own convenience, and entirely disassociated from work or employment.

Sec. 871-13 (parag. 11) GC provides in part:

“The term ‘safe’ and ‘safety’ as applied to any employment or a place of employment, shall mean such freedom from danger to the life, health, safety or welfare of employees or frequenters as the nature of the employment will reasonably permit * *

Secs. 871-15 and 871-16 GC impose definite standards of conduct upon the proprietor or owner of a place of employment to make his place of employment as free from danger for employees or frequenters as the nature of the employment will reasonably permit.

These sections of the Code are in pari materia and impose specific standards of care upon “employers” to protect workmen from harm and impose specific duties upon such “employers” to provide safe places for them to work.

In addition to the duty of an employer to workmen under the statutes, it is claimed that the same duty is owed to persons other than workmen who are classified as “frequenters” under §871-13, paragraph 5, GC. This provision of the Code appears as follows:

“The term ‘frequenter’ shall mean and include every person, other than an employee, who may go in or be in a place of employment under circumstances which render him other than a trespasser.”

It is obvious that the language standing alone could apply to any person who is not a trespasser, but when consideration is given to the evil which the entire legislation is designed to remedy, such object designed to be reached by the statutes must limit and control the literal import of the terms and phrases employed. The entire legislation is calculated to safeguard workmen and other persons connected in some way with the transaction of work or business with ■ the employer or in his place of employment and was never intended to place additional duties upon business proprietors or employers for the benefit of gratuitous licensees on such proprietor’s premises solely for purposes of their own. The statutes apply only to workmen, invitee or business visitors, as defined in Sec. 332, Restatement of the Law (Torts, Negligence 897).

If the statutes were held to benefit gratuitous licensees then a much greater burden would be placed upon employers of workmen in the conduct of their business than is placed upon other proprietors and owners of property.

It will be again observed that it is not shown by the record that the claimed prospective host of the injured person had used the parking facilities and consequently had asked him to come on these premises. This circumstance would make him at the most a gratuitous or bare licensee.

It is our conclusion that the statutes mentioned which appear under the title “Industrial Commission” are not applicable to the facts before us.

As stated, it appear from the evidence that reasonable minds could conclude only that the injured claimant was, at the time of the injury, at most a bare licensee on the premises of the defendant.

If it may be said that the fortuitous circumstances creating a prospective relationship of guest and host brought into existence for the prospective guest rights greater than those of a bare licensee when on the premises upon which the host’s car was parked, it must be noted that, in the case before us, there is no evidence that the prospective host had parked his car in the defendant’s premises. For aught that appears, it could have been parked in another nearby area “across the street” from the night club.

2. The Supreme Court of Ohio in Sharp Realty Co. et al v. Forsha, Jr., a minor, 122 Oh St 368, announced, per curiam:

“Until the case of Hannan, Admr. v. Ehrlich * * * (102 Oh St 176) is reversed or modified, we are required to follow the rule therein announced.”

The rule “therein announced” has not to date been reversed or modified and the requirement which the Supreme Court placed upon itself is likewise a requirement of this court. The rule is:

“A licensee takes his license subject to its attendant perils and risks and the licensor owes him no duty except to refrain from wantonly or wilfully injuring him and to exercise ordinary care after discovering him to be in peril; he should not be exposed to hidden dangers, pitfalls or obstructions.”

3. The writer of this opinion, in' Elliman v. Gombar, 86 Oh Ap 352, discussed the applicability of the rule of Hannan Admr. v. Ehrlich, to the. facts there presented. That discussion is equally applicable to the facts in the instant case and are incorporated herein by reference.

4. It is the conclusion of the majority of this court that the only duty owed the appellant by the proprietors of the parking business, was to not intentionally, wilfully, wantonly or through active negligence, create pitfalls or hidden dangers, or cause such conditions to arise. We find that this duty was not violated. The trial court should, as a matter of law, have arrested the case from the jury and entered a judgment for the defendant. Under these circumstances errors of which complaint is made need not be considered.

The judgment is affirmed. Exc. Order see journal.

SKEEL, PJ, concurs. HURD, J, dissents.