COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72034 ELLEN COLLETTE KINGSTON : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION AUSTIN DEVELOPMENT COMPANY, ET : AL. : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION FEBRUARY 5, 1998 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE CUYAHOGA COUNTY COMMON PLEAS COURT CASE CV-274556 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: ------------------------ APPEARANCES: For Plaintiff-Appellee: PAUL M. KAUFMAN (#0000690) 801 Terminal Tower 50 Public Square Cleveland, Ohio 44113 For Defendant-Appellant: RICHARD R. KUEPPER (#0012379 Skylight Office Tower 1660 West Second St., #480 Cleveland, Ohio 44113 SPELLACY, J.: Defendant-appellant, Austin Development Company ( appellant ), appeals from the jury verdict entered against it in the amount of -2- $45,000.00 in favor of plaintiff-appellee, Ellen Collette Kingston ( appellee ). Appellant assigns the following four errors for our review: I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR DIRECTED VERDICT. II. THE TRIAL COURT ERRED IN ITS CHARGE TO THE JURY THAT THE AUSTIN COMPANY OWED PLAINTIFF, A LICENSEE, A DUTY OF ORDINARY CARE. III. THE TRIAL COURT ERRED IN INCLUDING IN ITS CHARGE TO THE JURY ORDINANCE 1369.07 OF THE CITY OF CLEVELAND HEIGHTS REGARDING THE CITY'S REQUIREMENTS FOR SIDEWALK MAINTENANCE. IV. THE JURY VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND/OR WAS THE RESULT OF PASSION OR PREJUDICE. Finding appellant's appeal to have merit, the judgment of the trial court is reversed and the cause is remanded. I. On August 1, 1994, appellee filed a cause of action sounding in negligence against appellant and the City of Cleveland Heights. On February 28, 1995, both the City of Cleveland Heights and appellant filed separate motions for summary judgment. Both motions for summary judgment were granted by the trial court on April 5, 1995. Appellee appealed the decision of the trial court, and on December 7, 1995, this court affirmed the judgment of the trial court with regard to the City of Cleveland Heights, but reversed the decision of the trial court with regard to appellant and remanded the case for trial. See Kingston v. Austin Development Co. et al. (December 7, 1995), Cuyahoga App. No. 68903, -3- unreported. On January 13, 1997, a jury trial was conducted and a verdict was rendered in favor of appellee in the amount of $45,000.00. The instant appeal follows. II. On August 31, 1992, appellee fell and sustained injuries due to a crack in an access sidewalk located in Cleveland Heights, Ohio, and owned by appellant. The portion of the access sidewalk appellee used was from her bus stop on Mayfield Road to her place of employment, Dillards Department Store, located at Severance Circle. Appellee had been employed by Dillards Department Store and used this access sidewalk for approximately twenty-two years. At trial, appellee testified that at approximately 12:00 p.m. on August 31, 1992, as she was walking to work, the toe of her left foot got caught in the broken sidewalk causing her to fall down. Appellee further stated that August 31st was a sunny day, she was not in a hurry, she was looking straight ahead when she fell, she was not carrying anything large in her hands, and that she did not notice any defects in the sidewalk. As a result of her fall, appellee sustained serious injuries to her hand and wrist and suffered a bruised face and torso. III. Finding appellant's third assignment of error to be dispositive of the entire case, we will address this assignment of error first. In its third assignment of error, appellant contends that the trial court erred in including in its charge to the jury -4- the City of Cleveland Height's Municipal Ordinance 1369.07 regarding the requirement of sidewalk maintenance. For the following reasons we agree. It is the generally accepted principle in Ohio that [a]n owner of property abutting a public sidewalk is not, generally, liable for injuries sustained by a pedestrian thereon. Crowe v. Hoffman(1983), 13 Ohio App.3d 254, 255 citing Eichorn v. Lustig's Inc. (1954), 161 Ohio St. 11. To this general rule, there are three exceptions. First, when a pedestrian sustains injuries under such circumstances, the abutting property owner will be liable if a statute or ordinance imposes upon him a specific duty to keep the sidewalk adjoining his property in good repair. Hoffman, supra citing Dennison v. Buckeye Parking Corp. (1953), 94 Ohio App. 379; see also Gall, et al. v. Systems Parking, Inc. (October 27, 1994), Cuyahoga App. No. 66159, unreported. Second, the property owner will be liable if by affirmative acts he created or negligently maintained the defective or dangerous condition causing the injury. Eichorn, supra. Third, the property owner will incur liability if he negligently permitted the defective or dangerous condition to exist for some private use or benefit. Eichorn, supra. Where a municipality enacts an ordinance imposing liability on a property owner for damages sustained by third parties for an owner's failure to comply with the ordinance, and where that municipality fails to provide the owner with notice of its violation, the ordinance may not be relied upon to impose liability on the owner. Hughes v. Kozak (February 22, 1996), Cuyahoga App. -5- No. 69007, unreported, citing Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367. Furthermore, [t]o interpret the ordinance to require that the City specifically authorize a third party suit or civil liability is misreading the ordinance. Walker v. City of Parma (May 30, 1991), Cuyahoga App. No. 60540, unreported. Instructions to a jury should be a plain, distinct and unambiguous statement of the law as applicable to the case made before the jury by the proof adduced. Marshall v. Gibson (1985), 19 Ohio St.3d 10, 12. However, a charge must not only be correct but should also be adapted to the case and so explicit as not to be misunderstood or misconstrued by the jury. Id., citing Aetna Ins. Co. v. Reed (1878), 33 Ohio St. 283, 295. In general, any error in a charge to the jury in a civil case is not grounds for reversal unless the instruction is calculated to mislead the jury to the prejudice of the party seeking the reversal. Laverick v. Children's Hosp. Med. Ctr., Inc. (1988), 43 Ohio App.3d 201. In considering whether the particular portions of the trial court's instructions were improper, the instructions must be viewed in their entirety. Edmunds Management Co. v. Century Surety Co. (June 12, 1997), Cuyahoga App. No. 70441, unreported, citing Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207, 210. This court will not reverse unless an instruction is so prejudicial that it may induce an erroneous verdict. See Youssef v. Parr, Inc. (1990), 69 Ohio App.3d 679, 691. See also Wilson v. Dixon (March 29, 1990), Cuyahoga App. No. 56788, unreported. In the present case, the trial court instructed the jury as -6- follows: Now, what is negligence? Negligence is a failure to use ordinary care. Every person is required to use ordinary care to avoid injuring another or another's property. Ordinary care is that degree of care that a reasonably cautious, careful and prudent person would use under the same or similar circumstances. In deciding whether ordinary care was used, you will consider whether either party ought to have foreseen, under the circumstances, that the natural and probable result of an act or failure to act would cause some injury or damage. The test for foreseeability is not whether either party should have foreseen the injury exactly as it happened. The test is whether, under all of the circumstances, a reasonably cautious, careful, and prudent person would have anticipated that some injury or physical harm was likely to result from someone to someone from the act or failure to act. * * * The following ordinance from the City of Cleveland Heights was in effect on the date in question. It is Section 1369.07. Exterior and Interior Property Areas: No owner, agent or occupant of any premises shall maintain or shall permit to be maintained at or on the exterior property areas of such premises any condition which deteriorates or debases the appearance of the neighborhood; or reduces property values in the neighborhood; or creates a fire, or safety or health hazard; or which is a public nuisance; included, but not limited to the following: * * * (2) Improperly installed or maintained public sidewalks, walks, driveways and driveway aprons which are in defective condition in any of the following listed particulars: -7- A: Any block having multiple cracks or any single crack larger than 1/4 inch wide. B: Adjoining sections of block, or portion thereof, whose edges differ vertically by 3/4 inch or more, or blocks having disintegrated or deteriorated areas. In the present case, we agree with appellant that the trial court should not have instructed the jury regarding the City of Cleveland Height's Municipal Ordinance 1369.07. Initially, we note appellee did not raise the ordinance exception in her pleadings. Furthermore, appellant did not receive notice from the City of Cleveland Heights that it had violated the ordinance. Thus, the trial court's instruction to the jury regarding the City of Cleveland Height's Municipal Ordinance 1369.07 was erroneous. Because we have determined the trial court's instruction on the City Ordinance to be erroneous, the instructions, read in their entirety, were ambiguous and may have caused the jury to be misled in its attempt to determine appellant's liability with regard to the appellee. In order to prevent a manifest miscarriage of justice, we conclude that appellant's third assignment of error has merit and the case is remanded for a new trial. See Cleveland Elec. Illum. Co. v. Astorhurst (1985), 18 Ohio St.3d 268. On remand, the trial court must be mindful that the doctrine of the law of the case applies. The doctrine provides that the law set forth in any appeal of a case remains the law on remand so long as the evidence remains unchanged. Cipriani v. Stephanoff, et al. (January 11, 1990), Cuyahoga App. No. 56250, unreported. However, the trial court must also acknowledge that [w]hen new -8- evidence is developed on remand, the law of the case doctrine no longer conclusively binds the trial court. Id. The trial court is not bound by the reference to her status as an invitee and is free to determine appellee's status in light of the evidence presented at re-trial. Accordingly, the trial court may instruct the jury on issues of law which may not have been within the trial court's purview prior to hearing all of the evidence established at trial. Based on the foregoing, appellant's first, second and fourth assignments of error are moot. Judgment reversed and cause remanded. It is ordered that appellant recover of appellee her costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES M. PORTER, P.J. and TERRENCE O'DONNELL, J. CONCUR. LEO M. SPELLACY Judge N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(B). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72034 ELLEN COLLETTE KINGSTON ) ) Plaintiff-appellee ) ) D I S S E N T I N G -vs- ) ) O P I N I O N AUSTIN DEVELOPMENT COMPANY, ET AL ) ) -10- Defendant-appellant ) DATE: FEBRUARY 5, 1998 JAMES M. PORTER, P.J., DISSENTING: With all due respect, I am compelled to disagree with the disposition of this appeal by my colleagues. It is my firm conviction that plaintiff was a licensee not an invitee; there was no evidence that defendant Austin willfully or wantonly injured her; and that a directed verdict should have been granted. I would sustain appellant's Assignment of Error I. I realize that these conclusions may appear to run afoul of the doctrine of the Law of the Case because of our previous decision in Kingston v. Austin Dev. Co. (Dec. 7, 1995), Cuyahoga App. No. 68903, unreported. (Kingston I). I submit, however, on close analysis that (1) the Law of the Case did not bind the trial court because, as the majority states, when new evidence is developed on remand, the law of the case doctrine no longer conclusively binds the trial court. (Maj. Opn. at 9); (2) the statement by this Court in Kingston I was obiter dictum not binding as the Law of the Case; and (3) even if the Law of the Case was applicable, we should not compound what I consider to be an inadvertent error by ignoring the means at our disposal to avoid injustice. It should be recalled that this Court's decision in Kingston I was on a summary judgment record not a full-blown trial record. The Law of the Case was not applicable on the trial below because, although the sidewalk on which plaintiff fell was owned by Austin, -1- the trial court did have a full record and other evidence on remand that conclusively established that plaintiff was a licensee not an invitee. While a landowner owes an invitee a duty of ordinary care, [c]onversely, 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. *** Furthermore, a [railroad] owes no duty to anticipate or prevent the presence of licensees or trespassers. Gladon v. Regional Transit Auth. (1996), 75 Ohio St.3d 313, 317. 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. Id. at 315. The evidence below established that plaintiff was using the offending sidewalk to go to her place of work at Dillard's at Severance Center as she had for the last twenty years. There was no evidence that Austin knew of her presence, derived any benefit from her use of the sidewalk or in any way acted in a willfully, wanton or reckless way toward her. She was a licensee and a directed verdict should have been granted, free and clear of the Law of the Case doctrine. There is no question in Kingston I that this Court, inadvertently, I believe, suggested that plaintiff Kingston was an invitee, to whom defendant Austin owed a duty of ordinary care, rather than a mere licensee, toward whom Austin only owed a duty to avoid willful or wanton injury. The pertinent text of this Court's opinion in Kingston I, supra, stated as follows at 5: -2- Pursuant to Czaga's affidavit, we find Austin the owner of the access sidewalk where Kingston sustained her injuries. Baldauf v. Kent State Univ. (1989), 49 Ohio App.3d 46, 47-48, stated: [It is a well] established rule that the possessor of premises owes a duty to an invitee to exercise ordinary or reasonable care for his or her safety and protection. This duty includes maintaining the premises in a reasonably safe condition and warning an invitee of latent or concealed defects of which the possessor has or should have knowledge. Therefore, we find Austin owed Kingston a duty to maintain the sidewalk with ordinary or reasonable care. It must be noted that this Court's statement was obiter dictum in that it was not necessary to its decision or addressed to the assignment of error under consideration. The rule [Law of the Case] does not apply to decisions which the court had no jurisdiction to make on the former review nor to obiter statements contained in the opinion of the reviewing court rendered on the prior appeal. 5 O.Jur.3d Appellate Review S651 at 314; Royal Indemnity v. Goodman (1929), 32 Ohio App. 316, 331. It merely assumed, without deciding that plaintiff was an invitee rather than a licensee. Thus, inadvertently the Court concluded that because Austin was the owner of the premises, plaintiff was an invitee, a legal non-sequitur. This Court remanded the matter to the trial court for trial to determine if the crack in the sidewalk was substantial or not in width to get around the two inch rule. That was the grounds for reversal not the status of the plaintiff as licensee or invitee. -3- Finally, even if it is conceded that the Law of the Case doctrine was properly applied by the trial court, I would nonetheless exercise our rare prerogative to reexamine the issue as the only means of avoiding an unjust result. Where a court of appeals errs in the first review of a case, it is not precluded in the furtherance of substantial justice between the parties to make a proper determination on a second review. State v. Tanner (1993), 90 Ohio App.3d 761, 767. The obligation we face is more fully stated by this Court in Gen. Acc. Ins. Co. v. Ins. Co. of N. Am. (1993), 90 Ohio App.3d 490, 493: The doctrine of the law of the case provides that a decision of a reviewing court remains the law for that case as to all relevant legal questions in subsequent proceedings both at trial and appellate levels unless that rule of practice achieves an unjust result. Weir v. Kebe (1985), 29 Ohio App.3d 53, 29 OBR 62, 503 N.E.2d 177. The rule ensures consistency in the results of the case, avoids excessive litigation, and preserves the structure of superior and inferior courts as designed by the Ohio Constitution. Nolan v. Nolan (1984), 11 Ohio St.3d 1, 3 11 OBR 1, 2, 462 N.E.2d 410, 412. An appellate court may choose to reexamine the law of the case it has itself previously created, if that is the only means to avoid injustice. However, such reexaminations must not be undertaken lightly by an appellate court, nor encouraged as a common course of conduct for unsuccessful litigants. Weaver v. Motorists Mut. Ins. Co. (1990), 68 Ohio App.3d 547, 549, N.E.2d 101, 102. The plaintiff in this case was a licensee, as a matter of law, and not an invitee because Austin derived no benefit from her use of the sidewalk. However, since this Court in reversing the trial -4- court's granting of summary judgment suggested that the plaintiff was an invitee, the trial court felt duty-bound by the Law of the Case. Therefore, the jury was instructed on the wrong duty owed and, in fact, imposed upon the defendant a higher duty than it actually owed the plaintiff. I find that the application of the Law of the Case in these circumstances created an unjust result. Since there .