2018 Ohio 1197
Ohio Ct. App.2018Background
- On June 18, 2014 RN Suzanne Thayer exited a kitchenette at St. John Medical Center that was undergoing a remodel by B.L. Building; a partially constructed window opening (base ~12 inches above floor) existed in the new wall.
- Thayer tripped on a raised piece at the bottom of the opening, fell through the window opening, suffered abrasions and later required shoulder surgery.
- Nurses present testified there were no cones, tape, or other warnings; the contractor’s owner testified he and an employee normally placed caution tape over the opening but disputed whether it was present that evening.
- Appellants sued B.L. Building for negligence alleging the contractor created a foreseeable trip hazard and failed to warn or guard it; defendant moved for summary judgment arguing the hazard was open and obvious and no breach occurred.
- Trial court granted summary judgment for B.L. Building without explanation; the court of appeals reversed and remanded, finding genuine issues of material fact on breach, causation, and comparative negligence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an independent contractor who creates a dangerous condition can be held liable despite open-and-obvious doctrine | Thayer: contractor created a hazardous trip condition and had a duty to warn/guard; open-and-obvious doctrine should not bar recovery against an independent contractor | B.L. Building: hazard was open and obvious so no duty to warn or breach occurred | Court: Independent contractors remain liable for dangerous conditions; open-and-obvious doctrine does not automatically bar claim against contractor |
| Whether the hazard was sufficiently open and obvious to negate breach as a matter of law | Thayer: evidence (no tape/warnings, low base) creates dispute for jury | B.L. Building: hazard was observable and thus no reasonable jury could find breach | Court: Fact issues exist whether the opening was so obvious that no warning was needed; summary judgment improper |
| Whether contractor breached its duty of ordinary care (warnings/barriers) | Thayer: failing to barricade or warn a one-foot-high trip hazard was a breach | B.L. Building: it placed caution tape (or the hazard was obvious); no actionable breach | Court: Reasonable minds could disagree on breach; remand for factfinder |
| Whether Thayer’s own negligence bars or reduces recovery (comparative negligence) | Thayer: even if distracted, comparative negligence is for jury unless evidence compels single conclusion | B.L. Building: Thayer’s distraction/assumption of risk negates liability | Court: Evidence of contributory negligence not so compelling as to decide on summary judgment; jury issue on comparative fault and causation |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (standard of appellate de novo review of summary judgment)
- Dresher v. Burt, 75 Ohio St.3d 280 (moving and reciprocal burdens on summary judgment)
- Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75 (elements of negligence: duty, breach, proximate cause)
- Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642 (independent contractor who creates dangerous condition not relieved by open-and-obvious doctrine)
- Commerce & Industry Ins. Co. v. Toledo, 45 Ohio St.3d 96 (breach of duty usually a jury question)
- Mussivand v. David, 45 Ohio St.3d 314 (existence of duty is a question of law for the court)