Mikula v. Tailors

Leach, J., dissenting.

As an academic proposition of law, I would agree with paragraph five of the syllabus, which essentially is a rephrasing of paragraph one of the syllabus of Debie v. Cochran Pharmacy-Berwick, Inc. (1967), 11 Ohio St. 2d 38 . I also agree that where it is shown that the property owner has “superior knowledge” of the condition causing the injury, he cannot avoid liability merely because a “natural accumulation of ice and snow” adds to the existing danger. I further agree that a “deep hole” in a parking lot, even though partially or even completely filled by a “natural accumulation of ice and snow,” may continue to present “a condition more dangerous than that normally associated with ice and snow.”

Had the jury in this case been instructed within the framework of this principle of law, I would agree that a verdict in favor of plaintiff would rest upon a legally tenable foundation. The jury was not so instructed. Instead, it was instructed that it could return a verdict in favor of *60 plaintiff upon a finding that defendant was “negligent in the maintenance of this parking area in any one or more of the respects claimed by plaintiff in her petition”; that she need not prove “each of the allegations of negligence set forth in her petition,” but that “it is sufficient for * * * [plaintiff] to recover if you find * * * that * * * [she] was directly and proximately caused injury as the result of any one or more of the allegations of negligence in her petition.”

There were two “allegations of negligence” in plaintiff’s petition. The first made no reference whatsoever to the existence of any hole or holes, but instead was based entirely upon the legal theory that any “improper accumulation” (leaving entirely to the jury the question of whether any particular accumulation was “improper”) of snow and ice which is permitted to exist and remain “for a considerable time after notice” is negligence, supporting a recovery of damages.

By these instructions, the jury, in effect, was told that even if it concluded that there were no holes in the area (such claim being the basis of the second “allegation of negligence”) it nevertheless could return its verdict in favor of plaintiff if it found the accumulation “improper” and to have remained for a “considerable time” after notice. Thus, the jury was permitted to return a verdict in favor of plaintiff based on a theory of law rejected by this court in Debie v. Cochran Pharmacy-Berwick, Inc., supra ( 11 Ohio St. 2d 38 ); Sidle v. Humphrey (1968), 13 Ohio St. 2d 45 ; and Jeswald v. Hutt (1968), 15 Ohio St. 2d 224 . We cannot assume that it did not do so merely because there was another possible basis upon which it could base a verdict.

It might be observed that the trial of this cause took place prior to the decisions of this court in Debie, Sidle and Jeswald . The position of counsel for plaintiff was, and to a degree still is, that where the landlord in his lease agreement with his tenants assumes the duty of maintenance, including removal of ice and snow, a business invitee of a *61 tenant may maintain an action based solely upon failure to so remove such ice and snow. It is claimed that this position is supported by the holding of this court in Oswald v. Jeraj (1946), 146 Ohio St. 676 . There, it was held that a tenant could recover from the landlord damages for her own personal injury due to a slip on ice where the landlord had assumed the duty of maintenance and snow removal. However, as observed in Debie , and as specifically held in Sidle , such retention of control and assumption of duties by the landlord does not create a cause of action in favor of a business invitee of a tenant against the landlord. In my opinion, the jury instruction here authorized the jury to return a verdict based upon such non-existing “cause of action.”

The majority opinion, seemingly acknowledging that the action of the trial court in this respect was erroneous, defines it as an “error of omission.” I do not agree. The specific statement of the court in my opinion was an error of commission.

In my opinion, therefore, the third reason set forth by the Court of Appeals for reversing and remanding is correct, and I would affirm on such basis and remand the cause for new trial.

I agree that the first reason given by the Court of Appeals for its judgment of reversal was erroneous. My reasoning, however, is different from that stated in the majority opinion. Upon the basis that the testimony was not concerned with a “material fact” or that a “conscious falsity” was not established, the majority reaches the conclusion that the contradictions and alleged contradictions in plaintiff’s testimony were “not of a character to require the giving” of such instruction.

By implication, therefore, the majority would seem to accept the proposition that where the court determines, as a matter of fact, that the testimony on a “material issue” is “willfully false and given with an intention to deceive” a court is then required to instruct the jury in accordance with such a request.

*62 In my opinion, instructions of this nature should never be required, even where the contradictions involve “material facts” and “willful falsity.” Such instructions do not involve any “rule of law.” Mead v. McGraw (1869), 19 Ohio St. 55 . In my view, they serve only to place the court in psychological support of the argument to the jury by counsel attacking or discounting the credibility of the witness upon such basis.

I recognize that instructions of this nature have historical roots in the common law—at common law a judge was permitted to “comment upon the evidence”—and thus in effect aid or guide (but not command) the jury in its factual conclusions, as well as its application of the facts to the law. In states, such as Ohio, where such “comment upon the evidence” is not permitted, this type of charge nevertheless is sometimes given and left-handedly “approved” on appeal upon the basis that the giving thereof was not “prejudicial.” Such thereafter is submitted to a trial judge as a special instruction under the once prevalent, but now discarded, doctrine that if an instruction could properly be given, a refusal to so charge constituted prejudicial error. Smith v. Flesher (1967), 12 Ohio St. 2d 107 . In my opinion, exactly that happened here. The Court of Appeals, apparently concluding that the requested charge could have been given, then concluded that it should have been given and that it was prejudicial error not to give it.

I would make clear that instructions of this nature, although they sometimes may be given without necessarily resulting in prejudice, should not be given, and are never required to be given.

O’Neill, C. J., concurs in the foregoing dissenting opinion.