Summary
holding a tour of an historic home, which included an educational movie and a stop at the gift shop, was not a recreational use, even though the home was located on a farm
Summary of this case from Sallee v. StewartOpinion
No. 89-06054.
Decided April 5, 1990.
Jerome Silver, for plaintiffs.
Anthony J. Celebrezze, Jr., Attorney General, and Mary J. Stepanic, for defendant.
On August 28, 1988, plaintiffs Ellamay Ruth and Raymond Hontert and their neighbors, Mr. and Mrs. William Fuerst, traveled together to Malabar Farm State Park ("Malabar") in Mansfield, Ohio. Malabar is a fully operational farm which is open to the public for touring, camping, picnicking and other recreational activities. In addition to maintaining Malabar's grounds for outdoor activities, defendant owns and maintains a house located in the park. The prior owner of the house was Louis Bromfield, the famous author. The structure, now known as the "Big House," is open and available for public tours.
On said date, plaintiffs and the others decided to explore the Big House. They paid a fee to view the inside of the structure. Both couples were given a forty-minute guided tour with approximately twenty other persons. They viewed a substantial number of rooms and had to negotiate a number of steps throughout the house. After viewing the beauty of the house and learning about its history, the tour guide escorted the group to the rear of the structure where the defendant operates a souvenir shop. Shortly thereafter, the members of the tour were invited to view a movie in the basement of the house. No fee was charged for viewing the movie. The show was open not only to persons who participated in the tour, but to any visitor at the park. Immediately after viewing the movie, the group exited the basement via a stairway which led to the library.
The library adjoins the main entrance hall which is in a lower level of the house. The rooms are separated by a set of double doors which open towards the library. When exiting the library, one must negotiate a level change requiring two steps down prior to walking through the doorway. The evidence reveals that there were a number of people walking in front of plaintiff Ellamay Ruth Hontert as she traversed the library floor. Persons ahead of her negotiated the steps without incident. Plaintiff, however, failed to observe the steps. As she stepped forward, she apparently missed the first step and fell to the floor, thereby suffering injuries. The question is whether this area constituted a known hazard and whether defendant had the obligation to take safety precautions.
On March 20, 1989, plaintiffs, Raymond and Ellamay Ruth Hontert, filed a complaint in this court against the defendant, the Ohio Department of Natural Resources, concerning the incident.
Ellamay Ruth Hontert ("plaintiff") alleges she suffered injuries due to defendant's negligence when she fell at said premises. Raymond Hontert's claim pertains to the loss of services and consortium of his wife during the period of her injury.
On January 22, 1990, this action came before this court for trial on the sole issue of liability. The court has duly considered the evidence and arguments of counsel and renders the following decision.
The first issue to be resolved in this matter pertains to plaintiff's status at the time of her fall. Plaintiff asserts that she was a business invitee, while defendant contends she was merely a recreational user. R.C. 1533.18(B) defines "recreational user" as follows:
"* * * [A] person to whom permission has been granted, without the payment of a fee or consideration to the owner, lessee, or occupant of premises, other than a fee or consideration paid to the state or any agency thereof, to enter upon premises to hunt, fish, trap, camp, hike, swim, or engage in other recreational pursuits."
It is clear that the recreational user statutes apply to premises owned by the state of Ohio that are made available for recreational purposes. McCord v. Division of Parks Recreation (1978), 54 Ohio St.2d 72, 8 O.O.3d 77, 375 N.E.2d 50; and Moss v. Dept. of Natural Resources (1980), 62 Ohio St.2d 138, 16 O.O.3d 161, 404 N.E.2d 742. As to the question of liability to a recreational user, R.C. 1533.181 enunciates the following:
"(A) No owner, lessee, or occupant of premises:
"(1) Owes any duty to a recreational user to keep the premises safe for entry or use;
"(2) Extends any assurance to a recreational user, through the act of giving permission, that the premises are safe for entry or use;
"(3) Assumes responsibility for or incurs liability for any injury to person or property caused by any act of a recreational user."
In view of the above statutes, it is evident that the state of Ohio owes no duty to a recreational user of its land. Sorrell v. Ohio Dept. of Natural Resources (1988), 40 Ohio St.3d 141, 532 N.E.2d 722.
The issue of whether a person is considered a recreational user was examined in Miller v. Dayton (1989), 42 Ohio St.3d 113, 537 N.E.2d 1294, paragraph one of the syllabus, wherein the Supreme Court of Ohio held that "the analysis should focus on the character of the property upon which the injury occurs and the type of activities for which the property is held open to the public. * * *" (Emphasis added.) The court stated the following to provide additional guidance:
"In Light [ v. Ohio University (1986), 28 Ohio St.3d 66, 28 OBR 165, 502 N.E.2d 611] we held that the use of a gymnasium did not make a person a `recreational user.' This conclusion was supported by the fact that `R.C. 1533.18(B) is included in Title 15 of the Revised Code, having to do with conservation of natural resources and is part of R.C. Chapter 1533, dealing with fishing and hunting.' Light, supra [ 28 Ohio St.3d] at 68, 28 OBR at 167, 502 N.E.2d at 613. The gymnasium was not the type of `premises' covered by the recreational-user statute. Rather, it was a completely enclosed, man-made facility.
"However, the presence of man-made improvements on a property does not remove the property from statutory protection. `Premises,' as defined in R.C. 1533.18(A), `means all * * * lands, ways, waters, and any buildings and structures thereon * * *.' (Emphasis added.) To qualify for recreational-user immunity, property need not be completely natural, but its essential character should fit within the intent of the statute."
See, also, Thomas v. Coleco Industries, Inc. (N.D.Ohio 1987), 673 F. Supp. 1432, where the court held that the absolute immunity from liability for recreational user's injuries under R.C. 1533.181 is limited in its application to premises that are essentially rural or semi-rural land, water or marsh.
Defendant contends that when the tour of the Big House was completed in the gift shop, the plaintiff's status then altered. Defendant asserts that when plaintiff proceeded to the basement of the house to view a movie, her status transformed from an invitee to that of a recreational user. A person did not have to participate in the tour to view the movie since it was free to any visitor at Malabar.
Upon review of the facts and law, the court finds that the situation presented sub judice is analogous to the circumstances in Light v. Ohio University (1986), 28 Ohio St.3d 66, 28 OBR 165, 502 N.E.2d 611. In Light, as well as in the case at bar, the subject property was a building. The Light court found that a gymnasium was not the type of a building contemplated by the legislature as pertaining to natural resources. In the case sub judice, the court is of the opinion that the Big House is not within the ambit of natural resources since it is not the type of premises contemplated within R.C. 1533.18(A). The character of the Big House is basically historical, albeit, the land surrounding it is obviously recreational in nature. The activities conducted within the house consist of a tour, a movie and the sale of gifts pertaining to the property. Such activities do not constitute "other recreational pursuits" as reflected in the recreational user statute (R.C. 1533.18[B]). Therefore, the court finds that plaintiff was not a recreational user and that the defendant is not immune from liability under the circumstances.
The court must now examine plaintiff's allegations of negligence. The plaintiff has the burden of proof to show by a preponderance of the evidence that defendant was negligent under the circumstances. It is axiomatic in Ohio that the three elements of negligence are: (1) a duty of care owing to the plaintiff; (2) a breach of that duty by a negligent act or omission; and (3) an injury proximately resulting from such breach. Di Gildo v. Caponi (1969), 18 Ohio St.2d 125, 47 O.O.2d 282, 247 N.E.2d 732; 70 Ohio Jurisprudence 3d (1986) 46, Negligence, Section 9. Under the circumstances presented, the court is of the opinion that plaintiff's legal status was that of an invitee. Business invitees are those persons who come upon the premises of another, by invitation, express or implied, for some purpose which is beneficial to the owner. Scheibel v. Lipton (1951), 156 Ohio St. 308, 46 O.O. 177, 102 N.E.2d 453.
The court believes that the two activities, i.e., the tour of the house and the viewing of the movie, were essentially intertwined benefits to the defendant. The movie enhanced the understanding of the property's historical value. Although no fee was paid to see the movie, it was shown in a structure where a fee was required to tour the premises. In light of the fact that the movie was shown immediately subsequent to the tour, there was an appearance that both activities were linked. Plaintiff had such an impression.
As an invitee, defendant owed plaintiff the following duty:
"It is the duty of the owner or occupier of premises to exercise ordinary or reasonable care for the safety of invitees, so that the premises are in a reasonably safe condition for use in a manner consistent with the purpose of the invitation. If he directly or by implication invites others to go on the premises, it is his duty to have them reasonably safe, and to warn of latent or concealed perils of which he knows or has reason to know, and if he creates the condition, he is charged with knowledge thereof. He must use ordinary care in keeping his premises free from dangers which are not discernible by a prudent person who uses ordinary care, and is liable if an invitee is injured as the result of a defect which exists through his negligence." (Footnotes omitted; emphasis added.) 76 Ohio Jurisprudence 3d (1987) 18-20, Premises Liability, Section 7; Presley v. Norwood (1973), 36 Ohio St.2d 29, 65 O.O.2d 129, 303 N.E.2d 81; see, also, Light, supra.
However, it is also well-established that, balanced against this duty, the owner of premises is not to be held as an insurer against all forms of risk. S.S. Kresge Co. v. Fader (1927), 116 Ohio St. 718, 5 Ohio Law Abs. 379, 158 N.E. 174. Further, the Supreme Court of Ohio held in paragraph one of its syllabus in Sidle v. Humphrey (1968), 13 Ohio St.2d 45, 42 O.O.2d 96, 233 N.E.2d 589, the following:
"An occupier of premises is under no duty to protect a business invitee against dangers which are known to such invitee or are so obvious and apparent to such invitee that he may reasonably be expected to discover them and protect himself against them." (Emphasis added.)
In Hartman v. Di Lello (1959), 109 Ohio App. 387, 80 Ohio Law Abs. 481, 157 N.E.2d 127, plaintiff brought an action against a tavern owner due to a fall he suffered when walking through the barroom towards a telephone booth located in the tavern. He knew that there was a trap door in the floor which led to the basement. Also, the trap door was open and obvious. However, he failed to exercise proper caution, did not concentrate on the floor, and thus fell down the stairway to the basement. The Court of Appeals for Cuyahoga County found that plaintiff's lack of due care barred his claim. The court stated as follows:
"Mr. Hartman was required to exercise some degree of care for his own safety, commensurate with the risk which he should have seen existed. If he had looked where he was going, he never would have suffered an injury. If he had used any degree of care for his own safety, he would not have been hurt." Id. at 390-391, 80 Ohio Law Abs. at 484, 157 N.E.2d at 130.
Plaintiff contends that the step was unsafe because the wood floor blended together with the wood step and floor below, which made it difficult to discern the change. The middle step is approximately six-feet wide and seven and one-quarter inches in height. A sign reading "watch your step" was attached to the front of the step, and only persons entering the room could view it. Plaintiff testified that she was disoriented when exiting the basement and did not recall being through the library prior to her fall. Plaintiff stated that due to the number of people in front of her, the area around the step was blocked from her view and that there was no verbal or visual warning to aid her in avoiding the mishap.
The evidence demonstrates that the lighting was good in that area of the house since all the lights were on during the time of plaintiff's presence. The tour group had proceeded through this area during the tour and plaintiff had prior exposure to the area, including the steps. It should be noted that the tour guide warned the group that there were particular areas with steps. This warning was given to enable them to exercise due care. Testimony revealed that there were no other prior incidents of this nature at Malabar.
As previously mentioned, plaintiff was toward the rear of the group as they proceeded through the library. If she had been looking ahead it would have been apparent that the persons in front of her were stepping down to the main entrance level, by noticing their body movements and height variations. As previously stated, there are doors on both sides of the step on the main entrance level which is lower than the library floor. The door handles are visibly closer in proximity to the library floor and thus demonstrate that there is a level variation between the rooms.
Plaintiff also asserts that the home did not meet the standards of the Ohio Basic Building Code (OBBC) which mandates the use of stairway guards and handrails. See OBBC, Sections 816.5 and 816.6.2. The court has reviewed the provisions cited by plaintiff. The court, however, agrees with defendant that such regulations pertain to all buildings except buildings that were existing at the time the code became effective, so long as such buildings did not constitute a serious hazard. See Ohio Adm. Code 4101:2-1-09. OBBC, Sections 816.5 and 816.6.2 became effective on January 1, 1989. Since the Big House was constructed numerous years prior to the effective date, the cited code sections are inapplicable to this case. In addition, plaintiff did not offer evidence to demonstrate that the house constituted a "serious hazard" to safety or health. Assuming, arguendo, that the OBBC sections applied to this action, the court finds that plaintiff failed to show by a preponderance of the evidence that there were violations thereof.
The conduct in question must be viewed in light of all the surrounding circumstances, as shown by the evidence of this case. The question is whether the evidence shows that defendant negligently failed to exercise ordinary care to have its premises in a reasonably safe condition. The question must be answered in the negative. Upon review of the evidence, the court finds that plaintiff's injuries were, as in Hartman, supra, the result of plaintiff's preoccupation with the house's beauty. She failed to observe an open and obvious change in the floor's elevation. The evidence indicates that plaintiff's inattentiveness was the proximate cause of her injuries. She was required to demonstrate due care for her own safety and failed to do so.
"The ordinary care which one must exercise for his own safety and protection is that degree of care which an ordinary reasonable and prudent person would exercise, or is accustomed to exercise, for his own safety and protection, under the same or similar circumstances. The law does not require extreme care. Such care, and such care only, as ordinarily prudent persons could reasonably be expected to exercise under the circumstances, is the full measure required. The exercise of ordinary care to avoid an injury is all that the law requires, and no one can be held to be negligent who exercises such care. * * *" (Footnotes omitted.) 70 Ohio Jurisprudence 3d (1986) 154-155, Negligence, Section 69. The court concludes that plaintiff did not act in a careful manner, as a reasonable person under like circumstances would have done, and has not shown that defendant's actions, or lack thereof, was a proximate cause of the incident.
The court acknowledges that, under the circumstances, a handrail would have aided plaintiff on the day in question and thus the court finds that defendant's omission partially contributed to plaintiff's fall. In compliance with R.C. 2315.19, the court finds that the percentage of negligence that directly and proximately caused the accident, attributable to each party in relation to one hundred percent, is as follows: Plaintiff is found to be ninety percent negligent and the defendant is found to be ten percent negligent.
The burden fell upon plaintiff to establish that defendant's actionable negligence was greater than her own and proximately caused her injury. In view of the above, the court concludes that plaintiff failed to carry this burden by a preponderance of the evidence, and it follows that defendant is entitled to judgment. Accordingly, judgment is also rendered for defendant as to plaintiff Raymond Hontert's claim for loss of services and consortium.
Judgment for defendant.
RUSSELL LEACH, J., retired, of the Franklin County Municipal Court, sitting by assignment.