Simmers v. Bentley Construction Co.

Herbert R. Brown, J. The issue before us is whether the trial court properly granted summary judgment to Bentley. Bentley is an independent contractor who concedes for purposes of this appeal that it created a dangerous condition on the railroad bridge. Accordingly we must decide whether Bentley’s liability is determined by the rules governing landowner liability or by the ordinary rules of negligence. For the reasons that follow we find that the rules of negligence apply and that summary judgment was improper. The trial court and the court of appeals determined that CSX, the owner of the bridge, owed no duty to Stephen Simmers because the hole was an open and obvious danger. Bentley argues that this determination became the law of the case. Therefore, Bentley claims, it had no duty to warn of the danger and cannot be held liable for Stephen Simmers’s injuries. We disagree. The rule relieving a defendant from liability for harm resulting from “open and obvious” hazards is a legal doctrine that has developed in suits against property owners by a person injured when he comes on the property. The “open and obvious” doctrine states that an owner or occupier of property owes no duty to warn invitees entering the property of open and obvious dangers on the property. Sidle v. Humphrey (1968), 13 Ohio St.2d 45, 42 O.O.2d 96, 233 N.E.2d 589, at paragraph one of the syllabus; Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203, 18 OBR 267, 480 N.E.2d 474. The rationale behind the doctrine is that the open and obvious nature of the hazard itself serves as a warning. Thus, the owner or occupier may reasonably expect that persons entering the premises will discover those dangers and take appropriate measures to protect themselves. Sidle, supra.2 — 645 — Historically, a landowner’s liability in tort is incident to the occupation or control of the land, which involves the owner’s right and power to admit and exclude people from the premises. Wills v. Frank Hoover Supply (1986), 26 Ohio St.3d 186, 188, 26 OBR 160, 162, 497 N.E.2d 1118, 1120; Mitchell v. Cleveland Elec. Illum. Co. (1987), 30 Ohio St.3d 92, 94, 30 OBR 295, 297, 507 N.E.2d 352, 354. The “open and obvious” doctrine, therefore, governs a landowner’s duty to persons entering the property — property over which the landowner has the right and power to admit or exclude persons as invitees, licensees, or trespassers. Bentley was an independent contractor performing services for the owner of the bridge. While Bentley may have had the right to be on, and in the vicinity of, the bridge, it had no property interest in the premises. In fact, it was stipulated that “Bentley Construction Company did not contract to, nor was it responsible, to remove tracks or ties from the bridge in Lexington, Ohio which is the location of this incident.” We are not persuaded to extend the “open and obvious” doctrine to persons who conduct activity with the consent of the landowner but who themselves have no property interest in the premises. Accordingly, we hold that an independent contractor who creates a dangerous condition on real property is not relieved of liability under the doctrine which exonerates an owner or occupier of land from the duty to warn those entering the property concerning open and obvious dangers on the property. Since Bentley had no property interest in the premises, we must look to the law of negligence to determine Bentley’s duty of care, and then consider the significance of the factual finding that the hole was open and obvious. Under the law of negligence, a defendant’s duty to a plaintiff depends upon the relationship between the parties and the foreseeability of injury to someone in the plaintiff’s position. Huston v. Konieczny (1990), 52 Ohio St.3d 214, 217, 556 N.E.2d 505, 508; Commerce & Industry Ins. Co. v. Toledo (1989), 45 Ohio St3d 96, 98, 543 N.E.2d 1188, 1192; Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142-143, 539 N.E.2d 614, 616-617; Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77, 15 OBR 179, 180, 472 N.E.2d 707, 710. Injury is foreseeable if a defendant knew or should have known that its act was likely to result in harm to someone. Huston, supra; Commerce & Industry, supra. For this appeal, Bentley concedes that it created the hole and that the hole was a dangerous condition. Bentley’s owner also admits knowing that the public, including children, frequently used the bridge. Therefore, it was foreseeable that someone using the bridge was likely to be injured by falling — 646 — through the hole. Under the facts stipulated to us, Bentley owed a duty of care to users of the bridge. Once the existence of a duty is found, a plaintiff must show that the defendant breached its duty of care and that the breach proximately caused the plaintiff’s injury. Mussivand v. David (1989), 45 Ohio St.3d 314, 318, 544 N.E.2d 265, 270; Di Gildo v. Caponi (1969), 18 Ohio St.2d 125, 47 O.O.2d 282, 247 N.E.2d 732. Bentley made no attempt to repair or barricade the hole. Accordingly, there are factual questions which are not properly resolved by summary judgment. One such question is whether a breach of duty resulted from the failure to guard or otherwise protect the hole. See Prentiss v. Kirtz (1977), 54 Ohio App.2d 56, 8 O.O.3d 59, 374 N.E.2d 429. A second is whether the condition of the hole was itself sufficiently discernible to constitute an adequate warning of the danger. See Blair v. Goff-Kirby Co. (1976), 49 Ohio St.2d 5, 3 O.O.3d 4, 358 N.E.2d 634, at syllabus; Paulin v. John R. Jurgensen Co. (1982), 7 Ohio App.3d 273, 7 OBR 354, 455 N.E.2d 524. Even if the hole might have been sufficiently “open and obvious” to relieve a landowner of liability, that determination does not resolve either of the fact questions which must be addressed under the general law of negligence. In the law of negligence, an “open and obvious” danger can also place affirmative defenses at issue. These would be (1) contributory negligence, and (2) assumption of the risk. Rothfuss v. Hamilton Masonic Temple Co. (1973), 34 Ohio St.2d 176, 63 O.O.2d 270, 297 N.E.2d 105; Briere v. Lathrop Co. (1970), 22 Ohio St.2d 166, 51 O.O.2d 232, 258 N.E.2d 597. In essence, Bentley argues that Stephen was negligent in failing to protect himself from an open and obvious danger and that his negligence proximately caused his own injuries. A plaintiff’s contributory negligence, however, does not automatically bar recovery for damages directly and proximately caused by the defendant’s negligence. R.C. 2315.19(A)(2). Issues of comparative negligence are for the jury to resolve unless the evidence is so compelling that reasonable minds can reach but one conclusion. Hitchens v. Hahn (1985), 17 Ohio St.3d 212, 213-214, 17 OBR 447, 448, 478 N.E.2d 797, 799; Shinaver v. Szymanski (1984), 14 Ohio St.3d 51, 14 OBR 446, 471 N.E.2d 477. Under the comparative negligence statute, the factfinder apportions the percentage of each party’s negligence that proximately caused the plaintiff’s damages. R.C. 2315.19(B). A plaintiff may recover where his contributory negligence is equal to or less than the combined negligence of all the defendants. R.C. 2315.19(A)(2). On the record before us, reasonable minds can reach different conclusions as to (1) whether Bentley breached its duty, (2) whether Stephen was contribu — 647 — torily negligent or assumed the risk, (3) the extent to which the negligence of Bentley or Stephen (if such negligence be found) was the proximate cause of the injuries, and (4) what percentage (if applicable) of the damages should be attributed to the respective parties. Therefore, we affirm the court of appeals and hold that summary judgment in favor of Bentley was improper because genuine issues of material fact exist regarding the duty issue and the proximate cause of Stephen Simmers’s injuries. Judgment affirmed. Sweeney, Douglas and Resnick, JJ., concur. Moyer, C.J., Holmes and Wright, JJ., concur in part and dissent in part. Footnotes [2] Although the “open and obvious” doctrine is syllabus law in Ohio, Sidle, supra, its application has not been uniform. See Ohliger v. Toledo (1900), 20 Ohio C.C. 142; Richmond v. Ohio State Univ. (1989), 56 Ohio Misc.2d 16, 564 N.E.2d 1145. Further, since Ohio enacted the comparative negligence statute, R.C. 2315.19, courts must carefully distinguish between a defendant’s duty of care and a plaintiff’s contributory negligence. See Parsons v. Lawson Co. (1989), 57 Ohio App.3d 49, 51, 566 N.E.2d 698, 700. However, this case does not put at issue the “open and obvious” doctrine as applied to owners and occupiers of land.