Beckman v. Playhouse Square Found.

2014 Ohio 2651

Opinion

[Cite as Beckman v. Playhouse Square Found., 2014-Ohio-2651.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100627

DAVID BECKMAN PLAINTIFF-APPELLANT

vs.

PLAYHOUSE SQUARE FOUNDATION DEFENDANT-APPELLEE

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-12-795456

BEFORE: Celebrezze, P.J., S. Gallagher, J., and Stewart, J.

RELEASED AND JOURNALIZED: June 19, 2014 ATTORNEY FOR APPELLANT

Frank P. Giaimo Two Commerce Park Square 24400 Chagrin Boulevard Suite 300 Beachwood, Ohio 44122

ATTORNEY FOR APPELLEE

Robert P. Lynch Park Center Plaza II Suite 450 6150 Oak Tree Boulevard Independence, Ohio 44131 FRANK D. CELEBREZZE, JR., P.J.:

{¶1} Appellant, David Beckman, brings this appeal of the decision of the trial

court granting summary judgment in favor of appellee, the Playhouse Square Foundation,

ending Beckman’s negligence action. Beckman argues he did not assume the risk of

injury, and he disputes the open and obvious nature of that risk. After a thorough review

of the record and law, we affirm the decision of the trial court.

I. Factual and Procedural History

{¶2} As part of their orientation and training, volunteers for the theaters operated

by the Playhouse Square Foundation, called Red Coats, must participate in guest

evacuation training. In part, the training requires each Red Coat to review the evacuation

routes as well as view a demonstration of how to operate the Palace Theater’s

counterbalanced fire escape stairways. These consist of external metal stairways

attached to the building that end at the second story. A metal stairway that is suspended

off the street some ten feet bridges the gap to the sidewalk. To lower the stairway, a

person must step out onto the first few steps, using body weight to cause the stairway to

lower, often with a jarring clang on the sidewalk below. Volunteers are instructed to

hold onto the handrails and brace themselves for the impact. The volunteers are shown

how to operate the stairway by the person leading their training, and then volunteers may

elect to try it for themselves. {¶3} On April 2, 2011, the Playhouse Square Foundation was conducting training

for its volunteers. David Beckman, a veteran Red Coat, volunteered to operate the

mechanical staircase facing Chester Avenue on East 17th Street. Scott Wright, house

manager, was leading the instruction on that staircase that day. He demonstrated how the

staircase operated and, according to Beckman, instructed the volunteers to place both

hands on the railing on one side of the stairs. Beckman fell and sustained serious injury

when he was operating the stairway, he claims, as a result of these instructions.

{¶4} Jeffrey Grubb, another Red Coat who witnessed Beckman’s fall, heard the

instructions given by Wright. Grubb remembered the instructions differently: “Put our

hands on the inside of the rails, walk out to a point where it starts to come down, stop, and

lean back and flex your knees and let the stairs come all the way down.” Grubb

elaborated that volunteers were warned not to wrap their hands around the rails because

you could rap your knuckles on the other stairs as the stairway descended. He also noted

further instructions advising that if you could not reach both rails “you can put both hands

on one rail, preferably the one next to the building[,]” where there was not a risk that your

fingers would get pinched. The difference in the instructions is the positioning of the

hands of the person operating the stairway. Beckman remembered the instruction he

received: “I was told that on that particular fire escape that I would have to hang on with

both hands on the railing closest, close to the wall with my body in what I would call a

twisting precarious position. And then, you know, go down the stairs.” {¶5} Grubb stated he was the first volunteer to use the stairs that day. After

successfully activating the stairs and descending, Grubb watched other volunteers from

the street where he witnessed Beckman’s fall. Beckman stated he was the first volunteer

to go down the steps, although this contradicts Grubb’s account. The fire escape was

functioning appropriately when Grubb observed Beckman climb out onto the stairway

with both hands gripping the railing closest to the building where there is no danger of

pinched fingers. As the stairs started to come down, Grubb observed that Beckman was

leaning too far forward. When the stairs hit the sidewalk, Grubb saw Beckman lose his

balance and fall down the stairs.

{¶6} Wright also recalled Beckman’s descent. He described Beckman as

continuing to move after the stairs had begun to descend. He also remembered that

Beckman leaned forward instead of backward as the stairs began to drop. Wright saw that

Beckman was in trouble and ran to the descending staircase to try to grab it and slow it

down. Despite this, Beckman fell when the steps hit the sidewalk and tumbled the rest of

the way to the ground below.

{¶7} On November 13, 2012, Beckman filed a complaint against the Playhouse

Square Foundation for negligence and premises liability. An answer was filed and

depositions were taken. On August 12, 2013, the Playhouse Square Foundation filed a

motion for summary judgment. There, it argued that Beckman assumed the risk of

traversing the fire escape, that he knew the risks, and that any hazard was open and

obvious. Beckman opposed summary judgment on September 11, 2013. He argued that his fall resulted from the unsafe manner in which he was instructed to grip the hand

railing. On October 21, 2013, the trial court granted the Playhouse Square Foundation’s

motion for summary judgment. The trial court found:

There is no genuine issue of fact that plaintiff cannot establish that

defendant breached a duty owed to plaintiff. Plaintiff claims to have

received instructions to use an unsafe grip during a fire escape drill which

resulted in his fall. The evidence does not demonstrate how the

instructions were negligent or how the grip used was unsafe. The manager

who gave the instructions demonstrated use of the fire escape with the

allegedly unsafe grip without incident. Further, plaintiff had received

training and participated in fire escape drills for several years prior to his

fall. Plaintiff was aware or should have been aware that falling was a risk

involved in the fire escape drill. Defendant did not [owe] plaintiff a duty to

warn plaintiff of such a known risk. See Armstrong v. Best Buy Co., 990

Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088; see also Briere v.

Lathrop Co., 22 Ohio St.2d 166, 175, 258 N.E.2d 597 (1970). Therefore,

the court finds there is no genuine issue of fact that plaintiff cannot

establish a prima facie case of negligence against defendant. Defendant is

entitled to summary judgment.

{¶8} Beckman appeals from this decision assigning one error:

I. The trial court erred in grating the defendant’s motion for summary judgment. II. Law and Analysis

{¶9} This court reviews the grant of summary judgment de novo. Brown v. Scioto

Cty. Commrs., 87 Ohio App.3d 704, 622 N.E.2d 1153 (4th Dist.1993).

Civ.R. 56(C) specifically provides that before summary judgment may be granted, it must be determined that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

{¶10} It is well established that the party seeking summary judgment bears the

burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v.

Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Mitseff v. Wheeler, 38

Ohio St.3d 112, 115, 526 N.E.2d 798 (1988). In Dresher v. Burt, 75 Ohio St.3d 280, 662

N.E.2d 264 (1996), the Ohio Supreme Court modified and clarified the summary

judgment standard as applied in Wing v. Anchor Media, Ltd. of Texas, 59 Ohio St.3d 108,

570 N.E.2d 1095 (1991). Under Dresher, “the moving party bears the initial

responsibility of informing the trial court of the basis for the motion, and identifying those

portions of the record which demonstrate the absence of a genuine issue of fact on a

material element of the nonmoving party’s claim.” (Emphasis sic.) Id. at 296. The

nonmoving party has a reciprocal burden of specificity and cannot rest on mere

allegations or denials in the pleadings. Id. at 293. The nonmoving party must set forth “specific facts” by the means listed in Civ.R. 56(C) showing that a genuine issue for trial

exists. Id.

{¶11} A negligence action requires a plaintiff to demonstrate that “(1) the

defendant owed a duty of care to the plaintiff, (2) the defendant breached that duty, and

(3) the defendant’s breach proximately caused the plaintiff to be injured.” Lang v. Holly

Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d 120, ¶ 10, citing

Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, 857 N.E.2d 1195, ¶ 21, citing

Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984).

“When the alleged negligence occurs in the premises-liability context, the applicable duty

is determined by the relationship between the landowner and the plaintiff.” Gladon v.

Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315, 662 N.E.2d 287

(1996).

{¶12} Here, Beckman and other Red Coats are invitees. “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. Therefore, the duty owed is

that of ordinary care, which means that a landowner must exercise ordinary care and

maintain the premises in a safe condition. Lang at ¶ 10.

{¶13} The Ohio Supreme Court further elaborated that “[w]here a danger is open

and obvious, a landowner owes no duty of care to individuals lawfully on the premises.”

Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, at

the syllabus, citing Sidle v. Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589 (1968). “[T]he owner or occupier may reasonably expect that persons entering the premises will discover

those dangers and take appropriate measures to protect themselves.” Simmers v. Bentley

Constr. Co., 64 Ohio St.3d 642, 644, 597 N.E.2d 504 (1992). Therefore, when a plaintiff

is injured by an open and obvious danger, summary judgment is generally appropriate

because the duty of care necessary to establish negligence does not exist as a matter of

law. Armstrong at ¶ 15; Lang at ¶ 11.

{¶14} Here, the open-and-obvious doctrine is related to assumption of the risk.

“The open-and-obvious doctrine is based upon the invitee’s knowledge of the danger.

Sidle. ‘If an invitee knows of a dangerous condition, he will be held to have assumed the

risk of injury from that condition.’” Venable v. Greater Friendship Baptist Church, 7th

Dist. Mahoning No. 09 MA 79, 2010-Ohio-3159, ¶ 15, quoting Davenport v. M/I

Schottenstein Homes, Inc., 96 Ohio App.3d 237, 240, 644 N.E.2d 1074 (1st Dist.1993),

citing Cyr v. Bergstrom Paper Co., 3 Ohio App.3d 299, 444 N.E.2d 1349 (2d Dist.1982).

{¶15} In the present case, there is no evidence that the mechanical stairway was

malfunctioning. In his deposition, Beckman acknowledged that it was functioning as

others had in the past with which he had experience. This was his seventh or eighth time

going through the evacuation training. Beckman only takes issue with the instructions

given to him prior to his accident. He claims that he was instructed to use a

less-than-safe grip on the railing and that this caused his fall.

{¶16} Beckman stated that he followed the instructions given by Wright and acted

exactly as Wright had instructed and as Beckman had observed Wright act when Wright lowered the stairway. Beckman acknowledged in his deposition that the activity was

dangerous and that there was a risk he could fall. He ignored and assumed those risks

when he volunteered to participate in an activity he knew beforehand was dangerous.

{¶17} Beckman claims that he was not able to fully appreciate the risk involved

because he only was given instructions moments before he tried to operate the stairway.

Had he known that he would be placing himself in what he described as a precarious,

twisted position, he would not have volunteered. However, nothing stopped him from

declining to participate in the activity after receiving instructions. At that point, he did or

should have fully comprehended the risks involved and the inherently dangerous nature of

the activity. Everything he experienced when he walked out onto the stairway was

demonstrated to him beforehand by Wright according to Beckman’s own deposition

testimony.

{¶18} This case is distinguishable from other cases where courts have held that

assumption of the risk is not a valid defense in the employment context. Cremeans v.

Willmar Henderson Mfg. Co., 57 Ohio St.3d 145, 566 N.E.2d 1203 (1991). Even though

Red Coats are unpaid volunteers, the situation is so similar to the employment context

that case law in the area could apply. In Cremeans, the Ohio Supreme Court ruled that

assumption of the risk was not a valid defense in the employment context because “an

employee does not voluntarily or unreasonably assume the risk of injury which occurs in

the course of his or her employment when he or she must encounter that risk in the

normal performance of his or her required job duties and responsibilities.” Id. at 149. {¶19} The distinguishing factor in the present case is that Red Coats are not

required to participate in the activity that resulted in Beckman’s fall. Lowering the

stairway is voluntary.

{¶20} Grubb testified that during this portion of the evacuation training, Wright

“asked for volunteers, if they want to, you know, practice to see how it works.” (Grubb

Depo. 7.) Wright testified during his deposition that each volunteer must complete

evacuation training. The Red Coats are shown all evacuation routes. He stated,

“whoever is leading the tour demonstrates [operation of the fire escape stairway]. Then

we ask the volunteers if they would like to try it.” (Grubb Depo. 22.) When describing

the process, Wright stated, “I lower the escape first. Then I go up and I describe what to

do as you’re descending the escape, and then I ask for volunteers to go up. That’s how it

progresses.” (Wright Depo. 27.) Later, he provided, “[a]gain, we ask for volunteers.”

(Wright Depo. 28.)

{¶21} Appellant’s attorney made certain what was being asked: “Scott, forgive

me, but I’m slowing down a little bit and taking this very carefully. You indicated that

you asked for volunteers. A certain number of volunteers went up the escape to a

landing I take it.” (Wright Depo. 34.) When asked, “[d]id Playhouse Square require

each Red Coat to go down the fire escape * * * for the training?” Beckman testified that it

did, but admitted that one could opt out of going down the fire escape. (Beckman Depo.

80.) Therefore, going down the fire escape is not a condition of volunteering. {¶22} In Venable, 7th Dist. Mahoning No. 09 MA 79, 2010-Ohio-3159, the

Seventh District found that a roofer assumed the open and obvious risk of climbing a

ladder that had been constructed by church members. The Venable court affirmed the

application of the open-and-obvious doctrine and held there was no hidden condition not

perceived by the plaintiff: “The ladder and its dangers were not hidden from appellant.

He saw it, he held it, he considered its dangers and ignored them.” Id. at ¶ 20.

{¶23} The same is true here. Beckman saw the operation of the stairway in the

same manner that he stated he utilized. He was fully aware of the risks and assumed

them when he stepped out onto the stairway. Beckman argues that the instructions given

were negligent. He cites to nothing other than his own testimony, which indicates that

gripping railings on either side of the stairs is plainly superior to the instructions he was

given. Whether a certain positioning of the hands is better or worse when operating the

stairway is not the standard for a negligence claim. By Beckman’s own admission, the

stairway can be operated safely with either grip because he observed Wright use this grip

to operate the stairs without incident.

{¶24} Beckman likens this case to McGuire v. Univ. of Akron, Ct. of Cl. No.

2010-08900-AD, 2011-Ohio-2733. There, a dance student slipped and fell on a slippery

area of a dance floor after being instructed to practice there. The Ohio Court of Claims

determined that the dance student did not voluntarily assume the risk of injury inherent in

the activity based on attendant circumstances, or those circumstances that would divert

the attention of the injured person to such a degree that they would enhance the danger of a defect and contribute to the cause of the injury. Id. at ¶ 10, quoting Barrett v. Ent.

Rent-A-Car Co., 10th Dist. Franklin No. 03AP-1118, 2004-Ohio-4646. The slippery

spot on the floor, which was known to the teacher and the premises owner, constituted a

condition more dangerous than the surrounding floor. Further, the instructions given to

practice a complex dance routine in an area described as more slippery than the remainder

of the studio floor distracted the injured dancer from awareness of the slippery condition.

{¶25} The same cannot be said of the present case. There was no enhanced

dangerous or latent condition known to the Playhouse Square Foundation from which

appellant was distracted by the instructions given by Wright. Further, the instructions

were not negligent. Appellant was fully advised of the dangers and witnessed a

demonstration of the operation of the stairway. Therefore, the Playhouse Square

Foundation or its employees did not breach a duty owed to Beckman or prevent him from

fully appreciating the risks involved prior to engaging in a dangerous activity.

{¶26} Here, Beckman admitted he understood that operating the stairway was

inherently dangerous. He further did or should have fully understood the risks after

receiving instructions from Wright prior to operating the stairway. Beckman’s argument

that he did not fully appreciate the risk, and therefore liability should attach, is not

supported. See LaCourse v. Fleitz, 28 Ohio St.3d 209, 210, 503 N.E.2d 159 (1986)

(“Liability only attaches when an owner has ‘superior knowledge of the particular danger

which caused the injury’ as an ‘invitee may not reasonably be expected to protect himself

from a risk he cannot fully appreciate’”). III. Conclusion

{¶27} The dangers posed by lowering the stairway were made fully apparent to

Beckman by demonstration and instruction. Beckman’s argument that gripping the hand

railing only on one side of the stairway was less than safe is not supported in the record.

The voluntary operation of the stairway constituted an open and obvious danger to which

Beckman was fully informed.

{¶28} Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said 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.

FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

SEAN C. GALLAGHER, J., and MELODY J. STEWART, J., CONCUR