Helms v. James Dickey Post No. 23, American Legion, Inc.

Herbert, J.,

dissenting. There appears to be some confusion in the majority opinion, at least to me, which should be clarified. In June of 1965, this court decided in one opinion the cases of Smith, Admr., v. United Properties, Inc., and Schilliger v. Graceland Shoppers Mart, Inc., 2 Ohio St. 2d 310 , wherein it was held, in substance, that an owner of a shopping center owes the common-law duty of care to a business invitee. The third paragraph of the syllabus reads:

“All the attendant circumstances must be considered in *64 order to determine whether a sidewalk in a shopping center is reasonably safe for the use of invitees and such determination does not depend solely upon the matter of variation in the height of adjacent blocks [of concrete] in such sidewalk.” (Emphasis added.)

In the case at bar, the majority (four to three), in the syllabus, among other statements, says that the Smith and Schilliger cases, supra, are overruled, except the syllabus thereof. ■

The trial court sustained a demurrer to the petition, in the case at bar, solely upon the existence of an irregular shaped hole about one and one-quarter inches in diameter and one-half inch deep in which Mrs. Helms’ shoe heel caught, and she fell. Other allegations in the petition were ignored. The majority here affirms the judgment of the trial court.

The trial court relied solely upon the rule of law relative to sidewalks of a municipality over which the General Assembly gave control in Section 723.01 of the Revised Code. The only cases cited in the trial court, and, apparently, the only authority relied upon by it were Kimball v. City of Cincinnati, 160 Ohio St. 370 , Buckley v. City of Portsmouth, 168 Ohio St. 513 , Amos v. City of Cleveland Heights, 169 Ohio St. 367 , and Kindle v. City of Akron, 169 Ohio St. 373 . Those cases were decided solely and only upon projections rising above the street level from one and one-half to two inches and did not involve the duty of care owed by the owner of a private building to his invitees. In the Buckley case, it was a manhole that projected two inches above the adjacent sidewalk. In the remainder of the cases, there was a variation in height between adjacent blocks of concrete up to two inches.

In the case at bar, the trial court did not submit to a jury questions of fact arising from all the circumstances and conditions surrounding the accident and fall of Mrs. Helms but sustained the demurrer solely upon the ground of the existence of a hole in the concrete step.

The majority affirms the judgment of the trial court but at the same time approves the syllabus in the Smith and Schilliger cases, which specifically requires that “all the attendant circumstances must be considered * * * and such determination does *65 not depend solely upon the matter of variation in the height of adjacent blocks in snch sidewalk.”

The majority opinion “agrees” with the dissenting opinion in the Smith and Schilliger cases. In that opinion, the following rule is set ont at page 316:

“In order to recover from the occupier of premises for personal injuries sustained in a fall claimed to have been caused by the condition of those premises, a business invitee must allege and prove that the fall was proximately caused by some unreasonably dangerous condition of the premises.” (Emphasis added.)

However, that rule is limited by a quotation from the authority from which it originates. The following quotation from 2 Harper and James on Torts 1489 et seq., Section 27.13, is found in the same opinion:

“ l* * * The ordinary person can use or encounter all of these things [dangers] safely if he is fully atoare of their presence at the time. And if they have no unusual features and are in a place where he would naturally look for them, he may be expected to take care of himself if they are plainly visible.’ ” (Emphasis added.)

It seems to follow that an unreasonably dangerous condition must first be “plainly visible” to the invitees.

In the same opinion it is said:

“The question as to whether the condition of the premises complained of is an unreasonably dangerous condition is usually a question of fact for determination by the fury or other trier of the facts.” (Emphasis added.)

The cases here under consideration were not unusual in any respect and, under the rule approved by the present majority, should have been submitted to a jury.

The majority opinion refers to defects in sidewalks as being “trivial departures from perfection.” The great number of people on crowded sidewalks in huge shopping centers who have tripped and fallen over defects in sidewalks where the height of one block of concrete is two inches above the adjoining block and the great number of persons certain to be injured in the future will not look upon such dangerous conditions as being either “trivial” or “minor.”

*66 If the third paragraph of the syllabus in the Smith and Schilliger cases, approved by every member of this court, is applied conscientiously by trial courts, and the trial courts submit to a jury for its consideration not only the defect but also the circumstances and conditions there existing, then the confusion that has been manifest in these sidewalk cases may be largely eliminated. If each case is determined upon its own merits and not upon a judicial fiction, realism and not theory will control.

In Kintz v. Harriger, 99 Ohio St. 240 , at page 245, Judge Wanamaker, speaking for the court, said:

“This primary and precious right solemnly proclaimed in holy writ, in the lives and literature of our own people, in our constitutions and bills of rights, is too sacred a thing to be denied or destroyed by a mere ‘thus saith the court.’ ”

At page 247, in the opinion, Judge Wanamaker continues:

“Manifestly, when the Constitution of the state declares and defines certain public policies, such public policies must be paramount, though a score of statutes conflict and a multitude of judicial decisions be to the contrary.”

And again, at page 247, it is said that “no court, however sacred or powerful, has the right to declare any public policy that clearly contravenes or nullifies the rights declared in the Constitution.”

We need go no further to find confusion, than in the case at bar, and the Smith and Schilliger cases. In the case at bar the trial court sustained a demurrer to the petition, thereby eliminating any consideration of the surrounding conditions and circumstances. The Court of Appeals reversed the judgment of the trial court. The Supreme Court, by a majority of four to three, reverses the judgment of the Court of Appeals.

In the Smith and Schilliger cases, two persons were seriously injured, and the death of one, Nancy Smith, was hastened by her injuries resulting from a defective sidewalk in front of the stores in shopping centers.

The trial court sustained a demurrer, being another instance where the consideration of surrounding circumstances and conditions was avoided. The Court of Appeals (three judges) reversed the judgment of the trial court. Last June, *67 this court by a vote of four to three affirmed the judgment of the Court of Appeals.

In the decision here, a majority of four to three reverses the judgment of the Court of Appeals, overrules its own judgment of last June but approves the syllabus.

This growth of confusion has been accompanied by a steady erosion of the functions of the jury system. The doors of our courts have been closed to ever increasing numbers of worthy citizens having meritorious causes of action.

Section 16, Article I of the Ohio Constitution, provides that “all courts shall be open, and every person, for an injury done him in his * * # person * * #, shall have remedy by due course of law * *

Arbitrary judicial pronouncements that declare substantial questions of fact to be questions of law are a growing menace to those institutions of freedom so eloquently described by the late Judge Wanamaker.

The judgment of the Court of Appeals should be affirmed.