Sidle v. Humphrey

Taft, C. J.

Both sides apparently concede that Mark was a business invitee of the defendant’s tenants. The only cause of Mark’s fall alleged in the pleadings or indicated by the evidence was the natural accumulation of ice and snow on the steps and on the porch at the top of those steps.

Paragraph two of the syllabus in Debie v. Cochran Pharmacy-Berwick, Inc. (1967), 11 Ohio St. 2d 38, 227 N. E. 2d 603, reads:

“The mere fact standing alone that the owner or occupier has failed to remove the natural accumulations of snow and ice from private walks on his business premises for an unreasonable time does not give rise to an action by a business invitee who claims damages for injuries occasioned by a fall thereon.”

The Debie case was followed in Allison v. Wnek (1967), 12 Ohio App. 2d 97. Prior to our holding in the Debie case, there had been similar holdings by our Courts of Appeals. Steinbeck v. John Hauck Brewing Co. (Hamilton County 1916), 7 Ohio App. 18; Turoff v. Richman (Cuyahoga Coun*48ty 1944), 76 Ohio App. 83, 61 N. E. 2d 486; Wise v. A. & P. Tea Co. (Franklin County 1953), 94 Ohio App. 320, 115 N. E. 2d 33; Martinelli v. Cua (Franklin County 1962), 115 Ohio App. 151, 184 N. E. 2d 514; Levine v. Hart Motors, Inc. (Columbiana County 1955), 75 Ohio Law Abs. 265, 143 N. E. 2d 602; Herbst v. Y. W. C. A. (Stark County 1936), 57 Ohio App. 87, 11 N. E. 2d 876.

See also Chase v. Cleveland (1886), 44 Ohio St. 505, 9 N. E. 225; Norwalk v. Tuttle (1906), 73 Ohio St. 242, 76 N. E. 617, and McCave v. Canton (1942), 140 Ohio St. 150, 42 N. E. 2d 762, relating to the duty of a municipality to remove ice and snow from its streets and sidewalks.

The contrary holding in Rainey v. Harshbarger (Hancock County 1963), 7 Ohio App. 2d 260, 220 N. E. 2d 359, was the basis for certification to this court in the Debie case.

The rule stated in paragraph two of the syllabus of the Debie case necessarily follows from well-settled principles of law defining the obligations of an occupier of premises to a business invitee.

Thus in Prosser, Law of Torts (3 Ed. 1964), 403, it is stated:

“* * * In the usual case, there is no obligation to protect the invitee against dangers which are known to him, or which are so obvious and apparent to him that he may reasonably be expected to discover them. Against such conditions it may normally be expected that the visitor will protect himself.”

Also, in 2 Harper & James, Law of Torts (1956), 1491, it is stated:

“The knowledge of the condition removes the sting of unreasonableness from any danger that lies in it, and obviousness may be relied on to supply knowledge. Hence the obvious character of the condition is incompatible with negligence in maintaining it. If plaintiff happens to be hurt by the condition, he is barred from recovery by lack of defendant’s negligence towards him, no matter how careful plaintiff himself may have been.”

Section 343 of the Restatement of the Law of Torts (2d) reads, so far as pertinent:

*49“A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
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“(h) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
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The danger from ice and snow is an obvious danger and an occupier of premises should expect that an invitee on his premises will discover and realize that danger and protect himself against it.

As stated by Shauck, J., in Norwalk v. Tuttle, supra (73 Ohio St. 242), at page 245:

“In a climate where the winter brings frequently recurring storms of snow and rain and sudden and extreme changes in temperature, these dangerous conditions appear with a frequency and suddenness which defy prevention and, usually, correction. Ordinarily they disappear before correction would be practicable * * *. To hold that a liability results from these actions of the elements would be the affirmance of a duty which it would often be impossible, and ordinarily impracticable * * * to perform.”

There is language in the opinion of Oswald v. Jeraj (1946), 146 Ohio St. 676, 67 N. E. 2d 779, which might support the judgment of the Court of Appeals in the instant case. However, as stated by Brown, J., in Debie v. Cochran Pharmacy-Berwick, Inc., supra (11 Ohio St. 2d 38), in distinguishing the Oswald case, at page 41, “* * * This case is different from a landlord-tenant situation * * * where the action is by the tenant, and the landlord has undertaken to remove snow and ice within a reasonable time.” Each paragraph of the syllabus of the Oswald case is either limited to an action by the tenant against the landlord or to the duty owed by the landlord to the tenant. It is apparent that the duty of the landlord to the tenant as to removal of snow and ice was there based upon an implied agreement between them. Even if there is evidence which might support a finding of such an agreement in the instant case, there is nothing to indicate that such agreement *50was to be for the benefit of business invitees of the tenant, gee annotation 26 A. L. R. 2d 610.

There is no reason why the common-law duty, owed by a landlord to a business invitee of his tenant who is on a portion of the premises over which the landlord has retained control, should be any greater than the common-law duty that any other occupier of premises would owe to his business invitee. In our opinion it is not.

For the foregoing reasons, the judgment of the Court of Appeals is reversed and final judgment is rendered for defendant.

Judgment reversed.

Zimmerman, Matthias, 0’Neill and BeowN, JJ., concur. Schneider, J., concurs in paragraph four of the syllabus but dissents from the judgment.