Trowbridge v. Franciscan Univ. of Steubenville

2013 Ohio 5770

• Court: Ohio Court of Appeals
• Decided: December 23, 2013
• Docket: 12 JE 33
• Status: Published

Opinion

[Cite as Trowbridge v. Franciscan Univ. of Steubenville, 2013-Ohio-5770.] STATE OF OHIO, JEFFERSON COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT

THURMAN E. TROWBRIDGE, et al. ) CASE NO. 12 JE 33 ) PLAINTIFFS-APPELLANTS ) ) VS. ) OPINION ) FRANCISCAN UNIVERSITY OF ) STEUBENVILLE, et al. ) ) DEFENDANTS-APPELLEES )

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas of Jefferson County, Ohio Case No. 11 CV 213

JUDGMENT: Reversed and Remanded.

APPEARANCES: For Plaintiff-Appellant, Atty. John R. Liber, II Thurman E. Trowbridge: Thrasher, Dinsmore & Dolan 1400 W. 6th Street, Suite 400 Cleveland, Ohio 44113

For Plaintiff-Appellant, Atty. Edward Saadi Ohio Bureau of Workers Compensation: Edward T. Saadi, LLC 970 Windham Ct., Suite 7 Boardman, Ohio 44512

For Defendants-Appellees: Atty. Matthew P. Mullen Franciscan University of Steubenville, Atty. John P. Maxwell Jeffrey Gilky, Griffin Brown and Krugliak Wilkins Griffiths Gina Motto: & Dougherty Co., L.P.A. 158 North Broadway New Philadelphia, Ohio 44663

JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: December 23, 2013 [Cite as Trowbridge v. Franciscan Univ. of Steubenville, 2013-Ohio-5770.] WAITE, J.

{¶1} This appeal arises from a decision to grant summary judgment entered

in the Jefferson County Court of Common Pleas involving a slip and fall complaint

filed against Appellee Franciscan University of Steubenville (“the University”).

Appellant Thurman Trowbridge filed the negligence complaint after he slipped on a

mopped floor in Egan Hall while working his shift as a security guard at the

University. The University filed a motion for summary judgment asserting various

defenses to negligence. The trial court granted the University's motion on the

grounds that the danger was obvious to Appellant because he knew the floor might

be wet, and because he assumed the risk of slipping and falling when he knew the

floor was wet. Appellant now appeals the trial court’s summary judgment decision.

{¶2} The University argues that Appellant had actual knowledge of a

dangerous condition, making it open and obvious. Appellant contends that the

dangerous condition was not open and obvious because it was unclear whether the

floor was actually wet or was just glossy from being waxed. Appellant is correct. The

open and obvious doctrine is an objective test and does not rely on the plaintiff's

actual subjective knowledge of the condition. The record contains evidence that the

dangerous condition of the floor would not have been open and obvious under an

objective reasonable person standard, and therefore, summary judgment cannot be

granted on that theory. Appellant also argues that even if implied assumption of the

risk applies in this case, there is still a jury question as to the comparative fault of the

University, and thus, he may be able to recover some damages. Appellant is correct

again. Implied assumption of the risk is usually left for the trier of fact to decide, and -2-

there are genuine issues of material fact in dispute about the comparative negligence

of the parties in this case. The judgment of the trial court is reversed, and the case is

remanded for further proceedings.

Background

{¶3} On February 4, 2011, while on duty as an independent contractor

security guard at the University, Appellant entered into Egan Hall. He proceeded up

the west stairwell, down the hallway to the east stairwell and descended the east

stairs. As he stepped off the last step and onto the middle floor landing, he slipped

on the floor. He fell and hit the back of his head on the bottom stair, fracturing two

vertebrae and incurring severe permanent and debilitating injuries. Appellant was

taken to the hospital for treatment. He claims to have seen no posted signs

indicating that any of the floors were wet. He claims that he was not positive the

floors were actually wet until after he fell and his hand contacted the wet floor.

{¶4} The floor on which Appellant had slipped had been recently mopped by

student-custodian Griffin Brown. Upon hearing Appellant fall, Brown went to assist

him. The record contains a factual dispute as to whether or not Brown had placed

“wet floor” signs in the area and as to how much water was on the floor.

{¶5} On December 23, 2011, Appellant filed suit against the University for

negligence. On October 17, 2012, the University filed a motion for summary

judgment. In this motion, the University alleged that the dangerous condition of the

floor was open and obvious, that adequate warnings were provided, and that

Appellant had assumed the risk that the floor was wet and he voluntarily chose to

proceed. -3-

{¶6} The trial court held:

Two factual issues can be disposed of, for the purposes of this Motion

only because they are in conflict. First, several witnesses claim that

adequate “wet floor” signs were posted in the area while other

witnesses say they were not. Second, several witnesses testify that the

wet floor was obvious to all while other witnesses said they were not.

Under Civil Rule 56 both of those issues must be resolved, for the

purposes of this Motion alone, in favor of the non-moving party who in

this case is the Plaintiff. Therefore, for the purposes of this Motion

alone the Court will proceed on a basis of no signage and a wet floor

that was not obvious to all.

(12/6/12 J.E.)

{¶7} The trial court ultimately decided that summary judgment was proper

because Appellant testified that he “mopped a lot of floors in the service and knows

what a mopped floor looks like” and that he was able to see the shine on the floor

and knew that the floor was either wet or highly waxed. (12/6/12 J.E.) The trial judge

decided that Appellant knew the likelihood of the dangerous condition and stepped

on the floor despite the danger, and for that reason, entered summary judgment for

the University. This timely appeal followed.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED TO APPELLANT’S PREJUDICE BY

GRANTING APPELLEES’ MOTION FOR SUMMARY JUDGMENT, -4-

BECAUSE GENUINE ISSUES OF MATERIAL FACT ARE IN DISPUTE

AND APPELLEES ARE NOT ENTITLED TO JUDGMENT AS A

MATTER OF LAW.

{¶8} Since this appeal comes from a Civ.R. 56(B) motion for summary

judgment, this Court must review the decision de novo, using the same standards as

the trial court as set forth in Civ.R. 56(C). Brown v. Scioto Bd. of Commrs., 87 Ohio

App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993). Before summary judgment can

be granted the court must determine 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 the evidence most favorably toward the party against whom

the motion for summary judgment is made, that conclusion is adverse to the

nonmoving party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d

267 (1977).

{¶9} Appellant claimed that the University was negligent in causing the

dangerous condition and by not posting signs warning of the wet floor on the stairway

landing in Egan Hall. In a negligence action such as this, three elements must be

established: (1) the defendant’s duty; (2) a breach of that duty; and (3) that the

plaintiff’s injury proximately arose therefrom. Menifee v. Ohio Welding Products, Inc.,

15 Ohio St.3d 75, 472 N.E.2d 707 (1984).

{¶10} “The owner of a business has a general duty to exercise ordinary care

in maintaining his or her premises in a reasonably safe condition in order to ensure

that invitees are not unnecessarily and unreasonably exposed to danger.” Kraft v. -5-

Dolgencorp, Inc., 7th Dist. No. 06 MA 69, 2007-Ohio-4997, ¶11; Light v. Ohio Univ.,

28 Ohio St.3d 66, 68, 502 N.E.2d 611 (1986). Keeping the premises in a reasonably

safe condition generally means that a premises owner: (1) must not create a

dangerous condition on its premises; and (2) must warn its invitees of latent or

concealed dangers, if the premises owner has actual or constructive knowledge of

those dangers. Jackson v. Kings Island, 58 Ohio St.2d 357, 358, 390 N.E.2d 810

(1979); Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788

N.E.2d 1088, ¶5.

{¶11} A business owner is not an insurer of its invitees’ safety against all

forms of accidents that may happen. Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio

St.3d at 204, 480 N.E.2d 474. Business invitees are expected to take reasonable

precautions to avoid dangers that are patent or obvious. Brinkman v. Ross, 68 Ohio

St.3d 82, 84, 623 N.E.2d 1175 (1993). “Where a danger is open and obvious, a

landowner owes no duty of care to individuals lawfully on the premises.” Armstrong

at ¶14. “[T]he open-and-obvious doctrine obviates the duty to warn and acts as a

complete bar to any negligence claims.” Id. at ¶5. “[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). It is not crucial that the plaintiff

did or did not actually observe an open and obvious danger. Instead, “the

determinative issue is whether the condition is, under an objective standard,

observable.” Thatcher v. Lauffer Ravines, L.L.C., 10th Dist. No. 11AP–851, 2012-

Ohio-6193, ¶13. Whether or not a dangerous condition is objectively observable as -6-

an open and obvious danger “depends upon the particular circumstances

surrounding the hazard.” Olivier v. Leaf & Vine, 2d Dist. No. 2004 CA 35, 2005-Ohio-

1910, ¶31.

{¶12} Appellee contends that the open and obvious doctrine applies because

Appellant was subjectively aware that there was a high risk that the shiny floor might

be wet and slippery. Appellee misconstrues one of the main points of the open and

obvious doctrine, which is that the dangerousness of the condition is generally and

objectively observable, and not whether the plaintiff actually observed or was aware

of the danger prior to the accident. “The law uses an objective, not subjective,

standard when determining whether a danger is open and obvious. * * * It is the

objective, reasonable person that must find that the danger is not obvious or

apparent.” Goode v. Mt. Gillion Baptist Church, 8th Dist. No. 87876, 2006-Ohio-

6936, ¶25; see also, Thatcher, supra, ¶13; Sexton v. Certified Oil Co., 4th Dist. No.

11CA3299, 2013-Ohio-482, ¶19; Jacobsen v. Coon Restoration & Sealants, Inc., 5th

Dist. No. 2011-CA-00001, 2011-Ohio-3563, ¶19.

{¶13} Appellant contends that the open and obvious doctrine does not apply

here because there were disputed facts about whether it was objectively obvious that

the first floor landing where Appellant fell was actually wet. His argument relies on

our opinion in Kraft, supra, and other similar opinions. In Kraft, a customer shopping

in a Dollar General store slipped in a puddle of water that had accumulated in an

aisle. The trial court granted summary judgment to Dollar General because Appellant

stated in her deposition that the water spanned the width of the aisle, and because a

store employee stated that there was a “wet floor” sign posted in the aisle. We -7-

reversed because the evidence was disputed regarding whether the plaintiff knew the

water was on the floor prior to falling, and whether she saw any “wet floor” sign. The

plaintiff’s testimony was that she did not see the water and did not know the water

was there. Id. at ¶19-20.

{¶14} Although Kraft may appear on the surface to apply a subjective test, it

does not. Whether a reasonable person would find a hazard open and obvious is

usually determined by testimony from actual people who observed the danger. That

does not make it a subjective test. In Kraft, the evidence consisted of the depositions

of the plaintiff and the store manager, and it was that testimony that was used to

determine whether an objective, reasonable person would immediately observe the

dangerous condition. Their testimony diverged on a number of crucial points, making

it impossible to conclude as a matter of law that the wet condition of the floor was,

objectively, an open and obvious danger. We also noted that the presence or

absence of wet floor signs was not determinative in assessing an open and obvious

condition, because "it is the nature of the condition that is presumed to warn the

invitee of its danger," rather than warnings about the danger. Id. at ¶37.

{¶15} The facts of the instant case are similar. Neither Appellant nor anyone

else gave definitive testimony that the shiny appearance of the floor, in and of itself,

would objectively indicate that the floor was dangerously slippery or wet. At most, the

evidence suggested that the floor might be slippery, not that it obviously was slippery.

The trial court was aware that there were disputed facts regarding whether wet floor

signs were placed near the spot where the accident occurred, or whether it would

have been obvious to all people that the floor was newly mopped. The trial court did -8-

not rely on these disputed facts in granting summary judgment to the University.

Based on the state of the record, as the trial court specifically stated, the danger here

was not open and obvious to everyone. Summary judgment was not granted on the

basis of the “open and obvious” doctrine. We agree with the trial court's assessment

of the evidence and legal analysis on this issue.

{¶16} The trial court’s judgment entry states that Appellant had knowledge

that the floor might be in a dangerous condition, and that he proceeded to step onto it

regardless of the danger. These are facts that relate to whether Appellant assumed

the risk that the floor was wet, rather than whether the danger was open and obvious.

Implied or secondary assumption of risk is defined as a plaintiff’s consent to or

acquiescence in an appreciated, known, or obvious risk to plaintiff’s safety. Collier v.

Northland Swim Club, 35 Ohio App.3d 35, 518 N.E.2d 1226 (10th Dist.1987),

paragraph two of the syllabus. “Assumption of the risk requires three elements: One

must have full knowledge of a condition; such condition must be patently dangerous

to him; and he must voluntarily expose himself to the hazard created.” Briere v.

Lathrop Co., 22 Ohio St.2d 166, 174-175, 258 N.E.2d 597 (1970).

{¶17} Implied assumption of the risk is related to a defense of comparative

negligence pursuant to Ohio’s contributory negligence statute, R.C. 2315.33 (formerly

R.C. 2315.19). Stewart v. Urig, 176 Ohio App.3d 658, 2008-Ohio-3215, 893 N.E.2d

245, ¶24. Comparative negligence is usually a question of fact determined by the

trier of fact. Brady–Fray v. Toledo Edison Co., 6th Dist. No. L-02-1260, 2003-Ohio-

3422, ¶19. -9-

{¶18} Appellant’s deposition testimony indicates that he knew there was some

risk of walking on a highly shined floor:

Q. Okay. So you are saying that the floor was highly shiny?

A. Yes. Very.

Q. Okay. What did you do -- and because you know that it is highly

shiny, you know that it could be either wet or waxed, right?

A. Yes.

Q. And you know that, since you have been doing this job for a long

time, if it is wet, you have to be very careful because you might slip,

correct?

Q. And you are not going to know that it is wet until you put your foot

on it, right?

Q. So what did you do to keep from falling that day?

A. I didn’t have no choice. I had ahold of here, with my right hand.

And as soon as I slipped, I just went.

(Trowbridge Depo., pp. 83-84.) -10-

{¶19} Even though Appellant’s testimony indicates that he was aware there

was some risk that the floor was wet, the trier of fact may determine that he did not

fully appreciate the extent of the risk. His expectation that there should be signs

warning that the floor was wet, the lack of wet floor signs where he fell, the fact that

all the other floors along his route were dry, his prior experience patrolling the

hallways, and many factors enter into this determination. In addition, his testimony

does not establish the degree of his own negligence compared to the possible

negligence of the University, particularly if Appellant is credible and a trier of fact

believes that there were no “wet floor” signs. There is evidence suggesting that

Appellant might have taken more precautions had there been warning signs posted,

or might have even retraced his steps and found a different route to continue making

his rounds. (Trowbridge Depo., p. 80; 11/14/12 Brief in Opposition to Summary

Judgment, Exh. 13, Trowbridge Aff.) Whether or not there were “wet floor” signs is

clearly in dispute. This fact is material, and therefore, is a matter for the trier of fact

to determine rather than an issue for summary judgment. Since Ohio is a

comparative negligence jurisdiction that allows recovery as long as the fault of the

plaintiff does not exceed the fault of all the other parties involved, it is possible that

Appellant is entitled to some amount of damages even if he was partially at fault.

R.C. 2315.33. Because there are disputed facts about whether Appellant fully

appreciated the risk and about the comparative negligence of the parties, the case

must be remanded to the trial court for further proceedings. Accordingly, Appellant’s

assignment of error is sustained.

Conclusion -11-

{¶20} Appellee sought summary judgment in this slip and fall matter on two

grounds: either because the danger was open and obvious, or because Appellant

assumed the risk by stepping on a floor that he knew might be wet. The open and

obvious doctrine does not apply in this case since there is no indication in the record

that an objective reasonable person would have realized the danger was obvious,

and the trial court was correct in refusing to grant summary judgment on this ground.

While secondary or implied assumption of the risk may apply in this case, it is not

necessarily a complete bar to recovery and is usually left to the trier of fact to

determine. Because there are material disputed facts concerning the extent of

Appellant's appreciation of the risk and the degree of each of the parties' contributory

negligence in causing the accident, the matter was not ripe for summary judgment.

Appellant’s assignment of error is sustained and the judgment of the trial court is

reversed. The case is remanded for further proceedings.

Donofrio, J., concurs.

DeGenaro, P.J., concurs.