Dudziak-Martinez v. Beaver Park

1 Ohio App. Unrep. 357

• Court: Ohio Court of Appeals
• Decided: February 14, 1990
• Docket: Case No. 89CA004545
• Status: Published

Opinions

CACIOPPO, P. J.

David Martinez, Jr., was killed when a train struck the van in which he was a passenger. Douglas Barretto, the van operator, and Richard Barretto were injured as a result of the collision.

Each of the aforementioned parties filed a separate cause of action. The trial court considered the cases. Several claims and named defendants, including the railroad company, were dismissed. The remaining defendants filed a motion for summary judgment, which the trial court granted.

In the journal entry, the trial court stated that no genuine issue as to any material fact remained, and the defendants were entitled to judgment as a matter of law. Authority cited was three recent Supreme Court of Ohio decisions. The trial court also stated that case was closed as all other claims had been voluntarily dismissed.

Each of the three injured parties appeals. This court consolidates those appeals. Each appeal assigned as error that the trial court erred in granting the motion for summary judgment.

The parties allege certain facts which are not in dispute. In 1881, a property was deeded to a railroad company for the purpose of constructing and operating a railway. Language in the conveyance instrument required the railroad to construct farm crossings as a means of ingress and egress to land located between the railroad property and Lake Erie. Appellees (Beaver Park) are or were successors in ownership to some of this "land locked" property. Beaver Park commercially developed this property. Business invitees to the commercial activities for which Beaver Park was the proprietor were required to cross the railroad property at a private grade crossing which the railroad originally installed as one of the farm crossings. The van-train collision, which is the incident giving rise to this appeal, occurred at this private crossing.

Appellants assert that Beaver Park failed to use ordinary care to keep business premises reasonably safe for invitees and failed to warn of dangers that dangers that Beaver Park knew were present. To support this assertion, appellants argue that Beaver Park owes a duty to business invitees to make safe, the ingress and egress to Beaver Park properly. Appellants further argue that because this legal duty was identified, breach of that duty is an issue for the trier of fact, and summary judgment is not proper. If this court is to hold as appellants argue, premises liability in Ohio must extend beyond the current basis for liability, possession or control, to a basis analogous to strict liability, liability without a showing of fault.

A business proprietor "owes business invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition so that its customers are not unnecessarily and unreasonably exposed to danger." Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St. 3d 203. "Whether the duty of ordinary care, which the occupier of premises owes to one of his business invitees, requires such occupier to prevent, remove, or warn against a particular hazard, will necessarily depend on factors such as the potential hazard involved, the opportunity which such an invitee apparently would or would not have to avoid that potential hazard by the exercise of ordinary care, and the practicability of preventing, removing, or warning against such dangers." Anaple v. Standard Oil Co. (1955), 162 Ohio St. 537, 541-542. "The duty to keep premises safe for invitees extends to all of the operations of the premises which are included within the invitation and which it is necessary or convenient for the invitee to visit or use in the course of business for which the invitation was extended or at which his presence should therefore reasonably be anticipated or to which he is allowed to go. " Cochran v. Dowd Oldsmobile, Inc. (1962), 91 Ohio Law Abs. 247, 254. "* * * [A]n owner and occupier of land breaches his duty to invitees who are injured by the negligent acts of third persons, where such owner and occupier fails to exercise reasonable care to discover that such negligent acts of third persons are being done or are likely to be done and fails to give a warning adequate to enable such invitees to avoid harm, or fails to act to protect such invitees against such negligent acts of third parties." Holdshoe v. Whinery (1968), 14 Ohio, St. 2d 134, paragraph four of the syllabus; but, see, Scott v. Allied Stores of Ohio, Inc. (1953), 96 Ohio App. 532 (The proprietor is not liable for negligent acts of third persons not under the proprietor's control, which the proprietor could not reasonably have anticipated and guarded against.) However, "[a]n 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. Sidle v. Humphrey (1968), 13 Ohio St. 2d 45, paragraph one of the syllabus. See, also, Paschal v. Rite Aid Pharmacy, Inc., supra; Tyrrell v. Investment Assoc., Inc. (1984), 16 Ohio App. 3d 47; Forester v. R.L.M.., Inc. (1978), 60 Ohio App. 2d 342; Stradtner v. Cincinnati Reds, Inc. (1972), 39 Ohio App. 2d 199; and Potts v. Smith Construction Co. (1970), 23 App. 2d 144.

Under the circumstances of the case sub judice, Beaver Park's business invitees are not placed in danger because those invitees are required to cross the railroad property. The danger arises only when a business invitee, and a train rightfully using the railroad property, simultaneously cross. Beaver Park cannot stop the railroad from rightfully using railroad property nor anticipate any negligent act attributable to the railroad. Beaver Park cannot make the grade crossing safe for business invitees who choose to cross when the railroad is rightfully using their property.

Appellants introducedbefore the trial court, evidence that a vehicle and a train simultaneously crossing posed a dangerous condition at the grade crossing. Included in this evidence were newspaper articles which dubbed the crossing, "killer crossing". The van operator testified at deposition that the crossing's reputation was generally know. The operator also testified concerning the injured parties' personal knowledge of the crossing, and the resulting precautions.

In argument before this court, appellants continue to assert the "killer crossing" facts. Appellants inform the court that the record is replete with evidence of prior fatalities occurring at this crossing. Appellants argue that because Beaver Park was aware of the danger, Beaver Park installed flashing lights which warned of the crossing. That argument actually does not support appellants' cause.

Construing the evidence most strongly in favor of the appellants, we cannot say that the trial court erred in granting summary judgment. The evidence establishes that the railroad crossing was so obvious to these appellants that they should reasonably be expected to discover the danger and protect themselves from colliding with a train.

The consolidated assignments of error are overruled.

The judgment is affirmed.

The Court finds that there were reasonable grounds for these appeals.

We order that a special mandate issue out of this court, directing the County of Lorain Common Pleas Court to carry this judgment into execution.

Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App. R. 22(E).