Payne v. Ohio Performance Acad., Inc.
2017 Ohio 8006
| Ohio Ct. App. | 2017Background
- On April 11, 2014, Kathryn Payne (performer) fell off the edge of a dark, elevated modular stage at the NPAC Black Box Theater during rehearsal and was injured.
- Ohio Performance Academy, Inc. (OPA) long-term leased the facility from VV Venue, LLC (owner); OPA rented the Black Box to Columbus Dance Theater (CDT) for an April 12 performance.
- The OPA–CDT rental agreement listed a "Standard Stage Layout (No Runway)" among provided items and contained an "AS IS, WHERE IS" disclaimer; it did not explicitly require glow (photoluminescent) tape.
- Payne alleges premises liability based on failure to mark the stage edge with glow tape; CDT had directed her to enter the dark backstage during rehearsal.
- Trial court granted summary judgment for OPA, VV Venue, and VVP (landlord entities) concluding OPA and VV Venue owed no duty; denied summary judgment to CDT. Payne voluntarily dismissed CDT and appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OPA had a duty to place glow tape under the rental agreement | Rental term "Standard Stage Layout" and OPA staff involvement created a triable issue that OPA was responsible to place glow tape | Rental agreement did not require glow tape; OPA leased premises "AS IS" and did not retain possession/control at time of incident | OPA owed no duty as a matter of law; summary judgment for OPA affirmed |
| Whether OPA (or VV Venue) retained possession/control of premises despite lease to CDT | Payne: retention of responsibility for stage layout shows control sufficient to create duty | Defendants: lease gave occupancy/control to CDT; no evidence OPA/VV Venue substantially exercised right to admit/exclude | No record evidence of retained/actual substantial control; landlord defendants owed no duty; summary judgment affirmed |
| Whether VV Venue (owner) was liable despite leasing to OPA | VV Venue was responsible for building maintenance and cannot be absolved without clear agreement | Lease transferred possession to OPA; VV Venue had no role in stage setup or management at the time | VV Venue had neither possession nor control and thus owed no duty; summary judgment affirmed |
| Whether open-and-obvious or unconscionability issues preclude recovery | Payne argued rental disclaimers unconscionable and hazard not open-and-obvious for a performer | Defendants argued open-and-obvious/"step-in-the-dark" doctrine and contractual disclaimers bar recovery | Court did not rely on these doctrines; disposition rests on lack of duty/control (contract/possession) so these arguments were not reached on appeal |
Key Cases Cited
- Simpson v. Big Bear Stores Co., 73 Ohio St.3d 130 (Ohio 1995) (lease/possession test: duty extends only to premises in possessor’s control)
- Armstrong v. Best Buy Co., 99 Ohio St.3d 79 (Ohio 2003) (business invitee duty to warn of latent/hidden dangers)
- Shump v. First Continental-Robinwood Assocs., 71 Ohio St.3d 414 (Ohio 1994) (lessee generally owes duty to entrants, not landlord)
- Menifee v. Ohio Welding Prods., 15 Ohio St.3d 75 (Ohio 1984) (elements of negligence/premises liability)
- Krause v. Spartan Stores, Inc., 158 Ohio App.3d 304 (6th Dist. 2004) (lease language and actual exercise of control determine landlord liability)
- Doe v. Cub Foods, 115 Ohio App.3d 473 (10th Dist. 1996) (a party not in contractual possession may nonetheless assume a duty)