Wulf v. Bravo Brio Restaurant Group, Inc.
142 N.E.3d 123
Ohio Ct. App.2019Background
- On Jan. 2, 2016, 89-year-old Roland Wulf fell in a Bravo Cucina Italiana restaurant after someone backing up bumped his left leg; he fractured his hip and later died (executor William Wulf substituted).
- Plaintiff sued Bravo Brio (and John Does), alleging a Bravo waitress bumped Roland, causing the fall; respondeat superior claimed against the employer.
- Plaintiff’s proof included his deposition and affidavits from himself (pre-death), his girlfriend (Caruso), and son-in-law (Young) describing: a woman in a Bravo uniform bumped Roland, the woman apologized and admitted she worked for the restaurant, and an unidentified patron purportedly witnessed the event.
- Trial court granted summary judgment for Bravo Brio, finding plaintiff’s testimony and affidavits inconsistent, based largely on hearsay and failing to identify the employee.
- On appeal, the Twelfth District reversed, holding the trial court erred in excluding certain statements as hearsay, misapplied the open-and-obvious doctrine, and improperly required specific identification of the employee for respondeat superior to apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court properly granted summary judgment | Wulf: evidence (deposition + affidavits) creates genuine issues whether a Bravo employee negligently bumped Roland | Bravo: plaintiff’s evidence is hearsay, inconsistent, and identity of tortfeasor unknown; open-and-obvious or assumption-of-risk bar recovery | Reversed: trial court erred; evidence (including employee apologies) admissible and creates genuine issues of material fact |
| Admissibility of waitress’s apologies | Apologies identify the apologizer as a Bravo employee and are party-opponent admissions / present-sense impressions, so admissible | Bravo: statements are hearsay or inadmissible admissions of liability | Court: apologies were not hearsay for identification purposes, admissible under Evid.R. 801(D)(2)(d) and as present-sense impressions (803(1)); not excited utterances or statements-against-interest here |
| Application of open-and-obvious doctrine | Wulf: claim is active negligence (employee backing into patron), not a static hazard; open-and-obvious does not apply | Bravo: collision risk in restaurant is open and obvious, so no duty owed | Court: open-and-obvious applies to static conditions only; doesn’t bar this active-negligence claim |
| Requirement to identify the specific employee for respondeat superior | Wulf: employer can be liable without naming/identifying the employee if plaintiff shows an employee acting within scope of employment caused the injury | Bravo: identity of tortfeasor must be established to hold employer liable | Court: identity need not be specifically named if evidence supports that an employee (here, a person in a Bravo uniform who admitted employment) caused the harm; respondeat superior may apply |
Key Cases Cited
- Byrd v. Smith, 110 Ohio St.3d 24 (2006) (summary‑judgment standard and obligation to view evidence most favorably to nonmoving party)
- Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79 (2003) (open‑and‑obvious doctrine bars duty to warn for static hazards)
- Murphy v. Reynoldsburg, 65 Ohio St.3d 356 (1992) (trial court must consider all appropriate materials before granting summary judgment)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (moving party’s initial burden in summary judgment; reciprocal burden of nonmoving party)
- Jeffers v. Olexo, 43 Ohio St.3d 140 (1989) (elements of negligence: duty, breach, causation, damages)
- Masters v. The New York Central Rd. Co., 147 Ohio St. 293 (1947) (early articulation of assumption‑of‑risk principle)