Gladon v. Greater Cleveland Regional Transit Authority

662 N.E.2d 287, 75 Ohio St. 3d 312

• Court: Ohio Supreme Court
• Decided: March 6, 1996
• Docket: No. 94-1063
• Status: Published

Opinions

Cook, J.

Because we find another issue dispositive of this appeal, we fail to reach the substantial constitutional question regarding R.C. 2744.05(C) that we otherwise would have reached.¹ We determine that the trial court erred in instructing the jury about plaintiffs legal status and RTA’s corresponding duty. The trial court instructed the jury “as a matter of law that * * * the plaintiff was an invitee,” and that as a result RTA was “required to use ordinary care to discover and to avoid danger.” The trial court did not give the instruction that prior to discovering Gladon, RTA was obliged to refrain from willful and wanton conduct which was likely to injure Gladon. Given the evidence presented in the trial of this case, the erroneous instruction was prejudicial. Accordingly, we reverse the judgment of the trial court and remand the cause for a new trial.

I

DUTY CLASSIFICATIONS

Ohio adheres to the common-law classifications of invitee, licensee, and trespasser in cases of premises liability. Shump v. First Continental-Robinwood Assoc. (1994), 71 Ohio St.3d 414, 417, 644 N.E.2d 291, 294; Boydston v. Norfolk S. Corp. (1991), 73 Ohio App.3d 727, 733, 598 N.E.2d 171, 175. Although there was a movement in many jurisdictions in the 1970s to abolish these traditional duty classification schemes, it quite abruptly lost its steam late in that decade. Prosser & Keaton, Law of Torts (5 Ed.1984) 433, Section 62. Prosser hypothesizes that the retreat may reflect a “fundamental dissatisfaction with certain developments in accident law that accelerated during the 1960s — the reduction of whole systems of legal principles to a single, perhaps simplistic, standard of reasonable care, the sometimes blind subordination of other legitimate social objectives to the goals of accident prevention and compensation, and the commensurate shifting of the decisional balance of power to the jury from the judge. At least it appears that the courts are gaining a renewed appreciation for the considerations behind the traditional duty limitations toward trespassing adults, and that they are acquiring more generally a healthy skepticism toward invitations to jettison years of developed jurisprudence in favor of a beguiling legal panacea.” Id. at 433^34.

In Ohio, the status of the person who enters upon the land of another (i. e., trespasser, licensee, or invitee) continues to define the scope of the legal duty that the landowner owes the entrant. Shump, 71 Ohio St.3d at 417, 644 N.E.2d at 294. Invitees are persons who rightfully come upon the premises of another by invitation, express or implied, for some purpose which is beneficial to the owner. Light v. Ohio Univ. (1986), 28 Ohio St.3d 66, 68, 28 OBR 165, 167, 502 N.E.2d 611, 613; Scheibel v. Lipton (1951), 156 Ohio St; 308, 46 O.O. 177, 102 N.E.2d 453, paragraph one of the syllabus.

The status of an invitee is not absolute but is limited by the landowner’s invitation. “ * * * [T]he visitor has the status of an invitee only while he is on the part of the land to which his invitation extends — or in other words, the part of the land upon which the possessor gives him reason to believe that his presence is desired for the purpose for which he has come.

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“If the invitee goes outside of the area of his invitation, he becomes a trespasser or a licensee, depending upon whether he goes there without the consent of the possessor, or with such consent.” 2 Restatement of the Law 2d, Torts (1965) 181-182, Section 332, Comment l.

In the present case, Gladon was an invitee when he purchased an RTA ticket, rode the rapid transit train and waited at RTA’s platform. However, RTA’s invitation to Gladon to use its premises did not extend to the area on or near the tracks. In fact, Gladon acknowledged that RTA did not permit the public in the area on or near the tracks.

Although the result seems harsh, the common law on this subject is well grounded and we are not inclined to reject it. Accordingly, we hold that where an entrant upon another’s land exceeds the scope of the landowner’s invitation, the entrant will lose the status of an invitee, and become either a licensee or trespasser. See Clary v. McDonald (1963), 120 Ohio App. 8, 11, 28 O.O.2d 169, 171, 200 N.E.2d 805, 808; Sweet v. Clare-Mar Camp, Inc. (1987), 38 Ohio App.3d 6, 9, 526 N.E.2d 74, 78. See, also, Restatement of Torts 2d, supra, Section 332, Comment l.

Gladon contends that he retained his invitee status because there was no evidence that he “intentionally or purposely entered upon the track area.” According to the Restatement, “so far as the liability of the possessor of the land to the intruder is concerned, however, the possessor’s duty, and liability, will be the same regardless of the manner of entry, so long as the entry itself is not privileged.” Restatement of Torts 2d, 171-172, supra, Section 329, Comment c.

In determining whether the person is a trespasser within the meaning of this section, the question whether his entry has been intentional, negligent or purely accidental is not material, except as it may bear on the existence of a privilege. Id. at 171. Without the consent or privilege to enter the area of the tracks, the law views such entry from the aspect of the landowner whose duties to the entrant flow from the parameters of his permission to be there. As a result, “the determining fact is the presence or absence of a privilege to enter or to remain on the land, and the status of an accidental trespasser is still that of a trespasser.” Id. at 172.

The illustration employed by the Restatement to explain the duties owed to a trespasser is remarkably similar to Gladon’s situation. “Without any negligence on his part A, standing on the platform of a subway station of the X Company, slips and falls onto the tracks. While there he is run over by the train of X Company, and injured. A is a trespasser, and the liability to him is determined by the rules stated in sections 333 and 336, notwithstanding the accidental character of his intrusion.” Id. at 171, Illustration l.²

Furthermore, whether Gladon was privileged to enter the tracks is immaterial. A person privileged to enter the land is owed the same duties as a licensee. Restatement of Torts 2d, supra, at Section 345. Because the duties owed to a licensee and trespasser are the same, whether Gladon was privileged to enter the land does not change the standard of care RTA owed to him. Soles v. Ohio Edison Co. (1945), 144 Ohio St. 373, 29 O.O. 559, 59 N.E.2d 138, paragraph one of the syllabus.

Even though his entry may have been unintentional and against Gladon’s wishes, once on the tracks, Gladon exceeded the scope of his invitation and lost his status as an invitee. Because Gladon then became either a licensee or a trespasser for purposes of determining the duty RTA owed to him, the trial court erred in instructing the jury that he was an invitee as a matter of law.

We now turn to the duty owed to Gladon by RTA as a result of Gladon’s change in status from invitee to either licensee or trespasser. A landowner owes a duty to an invitee to exercise ordinary care for the invitee’s safety and protection. Light, 28 Ohio St.3d at 68, 28 OBR at 167, 502 N.E.2d at 613. Conversely, a landowner owes no duty to a licensee or trespasser except to refrain from willful, wanton or reckless conduct which is likely to injure him. Soles, 144 Ohio St. 373, 29 O.O. 559, 59 N.E.2d 138, at paragraph one of the syllabus. See, also, Provencher v. Ohio Dept. of Transp. (1990), 49 Ohio St.3d 265, 266, 551 N.E.2d 1257, 1258; McKinney v. Hartz & Restle Realtors, Inc. (1987), 31 Ohio St.3d 244, 246, 31 OBR 449, 450-151, 510 N.E.2d 386, 388; Brooks v. Norfolk & W. Ry. Co. (1976), 45 Ohio St.2d 34, 74 O.O.2d 53, 340 N.E.2d 392, paragraph one of the syllabus (“Where the status of a plaintiff is that of a trespasser on a railroad right-of-way at the time certain injuries were sustained by him, recovery can only be had against the railroad if the record demonstrates wanton misconduct on its part in connection with the accident.”). Furthermore, a railroad owes no duty to anticipate or prevent the presence of licensees or trespassers. McKinney, 31 Ohio St.3d at 246-247, 31 OBR at 451, 510 N.E.2d at 389; Brooks, 45 Ohio St.2d at 38, 74 O.O.2d at 55, 340 N.E.2d at 394; Cleveland, Akron & Columbus Ry. Co. v. Workman (1902), 66 Ohio St. 509, 540, 64 N.E. 582, 587 (A railroad owed a licensee no duty of “active vigilance to especially look out for and protect him.”); see Mima v. Akron (1986), 31 Ohio App.3d 124, 126, 31 OBR 211, 213, 508 N.E.2d 974, 976.

When a trespasser or licensee is discovered in a position of peril, a landowner is required to use ordinary care to avoid injuring him. Cole v. New York Cent RR. Co. (1948), 150 Ohio St. 175, 185, 37 O.O. 459, 463, 80 N.E.2d 854, 860; Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Potter (1925), 113 Ohio St. 591, 600-601, 150 N.E. 44, 47. The duty to exercise ordinary care arises after the landowner “knows, or from facts within his knowledge should know or believe,” that a trespasser or licensee is on the land. Restatement of Torts 2d, supra, at Section 336, Comment d.

Having instructed the jury as a matter of law that Gladon was an invitee, the trial court assigned RTA a duty of ordinary care “to discover and to avoid danger.” These instructions erred in two respects. First, the instructions imposed upon RTA a duty to use ordinary care to discover Gladon’s presence. To the contrary, RTA was under no duty to anticipate trespassers and could only be liable for injuries resulting from willful or wanton conduct. Second, the instructions imposed upon RTA a duty to use ordinary care to avoid injuring Gladon prior to the operator’s discovery of him. Rather, RTA’s duty to use ordinary care to avoid injuring Gladon did not arise until RTA knew or should have known that Gladon was on the tracks. Whether the operator knew or should have known a person was on the tracks upon observing the tennis shoe remains a question for the jury.

Given that the instructions were erroneous and prejudicial, we reverse the judgment of the court of appeals and remand this cause for a new trial.

II

MOTIONS FOR DIRECTED VERDICT/JNOV

Having determined that the duty of care owed to Gladon changed with his status, we now examine the issue of whether the trial court should have granted RTA a directed verdict or judgment notwithstanding the verdict. RTA contends the evidence produced at trial failed to prove that its operator breached the duty of care owed to Gladon.

“The test to be applied by a trial court in ruling on a motion for judgment notwithstanding the verdict is the same test to be applied on a motion for a directed verdict. The evidence adduced at trial and the facts established by admissions in the pleadings and in the record must be construed most strongly in favor of the party against whom the motion is made, and, where there is substantial evidence to support his side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied. Neither the weight of the evidence nor the credibility of the witnesses is for the court’s determination in ruling upon either of the above motions.” Posin v. A.B.C. Motor Court Hotel, Inc. (1976), 45 Ohio St.2d 271, 275, 74 O.O.2d 427, 430, 344 N.E.2d 334, 338, citing McNees v. Cincinnati Street Ry. Co. (1949), 152 Ohio St. 269, 40 O.O. 318, 89 N.E.2d 138; Ayers v. Woodard (1957), 166 Ohio St. 138, 1 O.O.2d 377, 140 N.E.2d 401; Civ.R. 50(A) and (B).

A

Application of the Willful and Wanton Standard

RTA owed Gladon no duty except to avoid injuring him by willful or wanton conduct prior to discovering Gladon on the tracks. See McKinney, 31 Ohio St.3d at 246, 31 OBR at 450-451, 510 N.E.2d at 388. Willful conduct “ ‘involves an intent, purpose or design to injure.’ ’’ Id. at 246, 31 OBR at 451, 510 N.E.2d at 388-389, quoting Denzer v. Terpstra (1934), 129 Ohio St. 1, 1 O.O. 303, 193 N.E. 647, paragraph two of the syllabus. Wanton conduct involves the failure to exercise “ ‘any care whatsoever toward those to whom he owes a duty of care, and his failure occurs under the circumstances in which there is great probability that harm will result.’ ” Id. at 246, 31 OBR at 451, 510 N.E.2d at 389, quoting Hawkins v. Ivy (1977), 50 Ohio St.2d 114, 4 O.O.3d 243, 363 N.E.2d 367, syllabus.

At trial, Gladon produced evidence that the tracks were wet when the operator traveled east toward the West 65th Street platform. The testimony of the operator, indicates that she had the train in braking mode as she traveled through a dark area near the platform with her high beams on at an estimated 20 m.p.h. Generally, the speed limit in that area is 25 m.p.h., but when a train is going to pass rather than stop at a platform, the permitted speed is 5 m.p.h.

Gladon also presented RTA regulations which require operators to operate the trains on sight, within the range of vision, at all times, and to anticipate changes in the range of vision. According to the RTA operator, operators “constantly run” their trains under “line of sight,” or at a speed which will permit stopping within one-half of the range of vision or within one-half of the distance to an opposing object. Gladon offered evidence that when tracks are wet, an operator must adjust the train’s speed in light of the weather conditions on the track.

In McKinney v. Hartz & Restle Realtors, Inc., we determined that a railroad company was entitled to a directed verdict in the absence of any evidence of speeding or other wanton misconduct. 31 Ohio St.3d at 247, 31 OBR at 451, 510 N.E.2d at 389. Our precedent has impliedly held that speeding may be evidence of wanton misconduct. Id.; see, generally, Brooks, 45 Ohio St.2d at 37, 74 O.O.2d at 55, 340 N.E.2d at 394.

Viewing these facts in the light most favorable to Gladon, we find that in this trial reasonable minds could have reached different conclusions regarding whether the speed of the train at the time the operator approached the West 65th platform meets the wanton standard in light of the operator’s duty to adjust the train’s speed to her range of vision and to the known track conditions. Therefore, the trial court did not err in overruling RTA’s motions for a directed verdict or judgment notwithstanding the verdict.

B

Application of the Ordinary Care Standard

RTA owed Gladon a duty to use reasonable care to avoid injuring Gladon after the operator discovered Gladon on the tracks. Cole, 150 Ohio St. at 185, 37 O.O. at 463, 80 N.E.2d at 860. Here, again, the RTA contends that Gladon failed to produce evidence of a breach of that duty.

Viewing these facts presented in this trial in the light most favorable to Gladon, reasonable minds could have reached different conclusions as to whether the operator exercised ordinary care. First, the point at which this duty arose remains a question for the jury. Reasonable minds could have reached different conclusions regarding whether the operator should have known a person was on the tracks when she saw the tennis shoes. Second, when the operator did realize a person was on the tracks, she was not sure whether she pulled the cinestar all the way back to the maximum braking mode before she hit the “mushroom” when she observed Gladon’s legs on the tracks. Furthermore, the operator testified that she was not sure whether she hit the “mushroom” before or after the train struck Gladon.

While we find that the trial court properly overruled the motions for directed verdict and for judgment notwithstanding the verdict, we reverse the judgment of the court of appeals and remand this cause for a new trial based on the erroneous jury instructions.

Judgment reversed and cause remanded.

Moyer, C.J., and Wright, J., concur. Wright, J., concurs separately. Nader, J., concurs in judgment only. Douglas, Resnick and Pfeifer, JJ., dissent. Robert A. Nader, J., of the Eleventh Appellate District, sitting for F.E. Sweeney, J.

1 . Although the parties and amici extensively briefed the issues surrounding the constitutionality of R.C. 2744.05(C) at the request of this court, our decision to remand this cause for a new trial precludes a determination of that issue. At the new trial, the jury may not find that the RTA breached its duty to Gladon or the jury may award Gladon less than $250,000 for pain and suffering. Consequently, any opinion we would render on the issue of the constitutionality of a cap on an award for pain and suffering before a jury verdict has been rendered would be advisory in nature. It is well settled that this court will not indulge in advisory opinions. Egan v. Natl. Distillers & Chem. Corp. (1986), 25 Ohio St.3d 176, 25 OBR 243, 495 N.E.2d 904, syllabus.

2 . Section 333 states generally that “a possessor of land is not liable to trespassers for physical harm caused by his failure to exercise reasonable care (a) to put the land in a condition reasonably safe for their reception, or (b) to carry on his activities so as not to endanger them.” Restatement of the Law 2d, Torts (1965) 183, Section 333. Section 336 generally prescribes the duty of ordinary care from a possessor of land who knows or has reason to know of the presence of another who is trespassing on the land. Restatement of the Law 2d, swpra, at Section 336. Again, the example cited by the Restatement for this duty is identical to the situation when the train driver saw Gladon and his shoe on the tracks. “The engineer of the X & Y Railroad Company sees lying upon the track a pile of clothing such as would give a reasonable man cause to suspect that it might contain a human being. Under these circumstances the engineer is not entitled to assume that it is not a human being but is required to keep the engine under control until he is certain that it is not.” Id. at 191-192, Comment b, Illustration 1.