questioning whether fare-paying customer of subway system, who was assaulted and thrown onto tracks by third parties upon exiting train, was still an invitee when left lying on tracks and struck by train
How later courts described this case
- questioning whether fare-paying customer of subway system, who was assaulted and thrown onto tracks by third parties upon exiting train, was still an invitee when left lying on tracks and struck by train
- questioning whether fare-paying customer of subway system, who was assaulted and thrown by third 13 parties upon exiting train, was still invitee when left lying on tracks and struck by train
- questioning whether fare-paying customer of subway system, who was assaulted and thrown by third parties upon exiting train, was still invitee when left lying on tracks and struck by train
- ticketed passenger lost invitee status when he left the train platform and went onto the tracks
Written by the judges who cited it.
The opinion
Nader, J.,
concurring in judgment only. I agree that Ohio maintains its traditional duty classifications in cases of premises liability and that one’s status is determined at entry in accordance with the landowner’s invitation.
Gladon quite clearly entered appellant’s property as an invitee. The cases cited affirm that one can change that status by exceeding the terms of the admission. All these cases, however, show intentional divergence; and while the theories propounded by Prosser and the Restatement of Torts 2d support each other, neither authority convinces me nor compels the conclusion that Gladon’s apparently involuntary and unexplained presence upon appellant’s tracks automatically transmuted his status to that of a trespasser.
The evidence, in this case, is not so determinative of status by location or purpose as to support a finding of invitee or trespasser, as a matter of law, and the trial court erred in not submitting that issue to the jury, as presented. While appreciating the practical concern in limiting a landowner’s duty to trespassers, it is similarly difficult for me to accept the forfeiture of that duty, by an invitee, for an involuntary action.
I believe the trial court should have accommodated this peculiar situation by crafting an appropriate instruction permitting the jury to consider the status-duty enigma fairly, upon the facts presented.
A less forceful approach to conform irregular facts to a standard charge may not have been in error, or may have been harmless error, so this matter could *323 have proceeded on its most contentious issue, the constitutionality of R.C. 2744.05(C).