Frаnk and Pauline Rosenbrook v. Board of Lucas County Commissioners, et al.
Court of Appeals Nos. L-14-1175, L-14-1176
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
May 8, 2015
[Cite as Rosenbrook v. Lucas Cty. Bd. of Commrs., 2015-Ohio-1793.]
Trial Court No. CI0201102558
Decided: May 8, 2015
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Guy T. Barone and Eric Allen Marks, for appellants.
Julia R. Bates, Lucas County Prosecuting Attorney, and John A. Borell and Maureen O. Atkins, Assistant Prosecuting Attorneys for appellee, Board of Lucas County Commissioners.
Michael A. Paglia and Sarah A. Miller, for appellee, Coyne Textile Services.
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YARBROUGH, P.J.
{¶ 1} Appellants, Pauline and Frank Rosenbrook, appeal the judgment of the Lucas County Court of Common Pleas, granting summary judgment in favor of appellees, the Board of Lucas County Commissioners (“the County“) and Coyne International Enterprises, Corp., dba Cоyne Textile Services (“CTS“).
A. Facts and Procedural Background
{¶ 2} This case stems from a slip-and-fall incident that occurred at the Lucas County Courthouse on January 6, 2010. On that date, Pauline‘s grandson, Gregory Rosenbrook, was scheduled to appear for a hearing at the courthouse. Wanting to provide financial support for Gregory, Pauline also attended the hearing. Upon arrival, Pauline and Gregory proceeded through security and rode the elevator up to the floor on which the hearing was to be held. At the conclusion of the hearing, Pauline, along with Gregory and Gregory‘s attоrney, took the elevator back to the ground floor. Arriving at the ground floor, Gregory and his attorney exited the elevator, followed by Pauline. As Pauline walked onto the floor mat that was lying in front of the elevator, she tripped and fell to the floor. After falling, Pauline glanced back at the floor mat and noticed that it was curled. As a result of her fall, Pauline sustained a fractured shoulder and other injuries.
{¶ 3} Three months after the incident at the courthouse, Pauline, along with her husband, Frank, filed a complaint, alleging that the County, through its agents and
{¶ 4} Thе County filed its answer on May 25, 2011, in which it generally denied all of appellants’ allegations, and asserted numerous affirmative defenses, including failure to state a claim upon which relief can be granted and statutory immunity. Further, on June 7, 2011, the County filed a
{¶ 5} On August 5, 2011, the County filed its answer to appellants’ amended complaint, once again denying appellants’ allegations, and asserting thаt the amended complaint failed to state a claim upon which relief can be granted. Likewise, on September 1, 2011, CTS filed its answer.
{¶ 6} Thereafter, on September 26, 2011, the trial court issued its decision denying the County‘s motion for judgment on the pleadings. The County appealed, and, on December 31, 2012, we affirmed the trial court‘s denial of the County‘s motion for judgment on the pleadings. Rosenbrook v. Bd. of Lucas Cty. Commrs., 6th Dist. No. L-11-1272, 2012-Ohio-6247. Subsequently, the trial court reactivated the case, and pretrial discovery was continued by the parties.
{¶ 7} Eventually, on March 31, 2014, appellees filed three separate mоtions for summary judgment. In the County‘s motion for summary judgment, it argued that it was immune from liability under
{¶ 8} In addition to the County‘s motion for summary judgment, CTS filed two separate motions for partial summary judgment. In its first motion, CTS sought summary judgment as to appellants’ negligence claim, arguing that appellants failed to establish a defect in the floor mat upon which she fell or that the defect actually caused her to fall. Further, CTS contended that it was entitled to summary judgment because it had no knowledge of the alleged defect in the floor mat. CTS also reiterated the County‘s argumеnt that any defects in the floor mat, if any, were open and obvious and, thus, CTS owed no duty to warn Pauline of said defects.
{¶ 9} In its second motion for summary judgment, CTS sought judgment in its favor on appellants’ claim for punitive damages, noting that the record contained no evidence that it acted with malice toward appellants.
{¶ 10} On April 23, 2014, appellants filed their memorandum in opposition to appellees’ motions for summary judgment. In their memorandum, appellants argued that the County is not immune from liability because the curl in the floor mat represented a physiсal defect caused by the negligence of the County‘s employees as set forth in
{¶ 11} Upon consideration of the parties’ arguments, the trial court, on July 10, 2014, issued its decisions grаnting appellees’ motions for summary judgment. In its entries, the court found that the record contained no evidence of a physical defect in the floor mat or negligence on the part of a County employee. Thus, the court found that the County was immune from liability under
B. Assignments of Error
{¶ 12} On appeal, appellants assert the following assignments of error:
FIRST ASSIGNMENT OF ERROR: THE LOWER COURT ERRED IN GRANTING APPELLEE LUCAS COUNTY BOARD OF COUNTY COMMISSIONERS’ MOTION FOR SUMMARY JUDGMENT.
SECOND ASSIGNMENT OF ERROR: THE LOWER COURT ERRED IN GRANTING APPELLEE COYNE TEXTILE SERVICES’ MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO NEGLIGENCE.
II. Analysis
A. Standard of Review
{¶ 13} We review summary judgment decisions de novo, applying the same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989). Applying
B. Grant of Summary Judgment to the County
{¶ 14} In their first assignment of error, appellants contend that the trial сourt erred in granting the County‘s motion for summary judgment. Specifically, appellants argue that the trial court mistakenly determined that the County was entitled to immunity. Further, appellants assert that the trial court‘s application of the open-and-obvious doctrine was in error. Because we find that the County was entitled to immunity under
{¶ 15} As stated by the Ohio Supreme Court, a “three-tiered analysis” is used to determine whether a political subdivision is immune from liability. Elston v. Howland Local Schools, 113 Ohio St.3d 314, 2007-Ohio-2070, 865 N.E.2d 845, ¶ 10. Under the first tier, we examine whether the general grant of immunity provided by
{¶ 16} Appellants acknowledge that the County qualifies for immunity under
{¶ 17}
(B) Subject to sections
2744.03 and2744.05 of the Revised Code, a political subdivision is liable in damages in а civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows:* * *
(4) Except as otherwise provided in section
3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property that is caused by the negligence of their employees and that occurs within or on the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function, including, but not limited to, office buildings and courthouses, but not including jails, places of juvenile detention,workhouses, or any other detention facility, as defined in section 2921.01 of the Revised Code.
{¶ 18} We have previously held that ”
{¶ 19} Here, the parties agree that the courthouse at which Pauline‘s injury occurred qualifies as a building used in connection with a governmental activity. However, the parties dispute the remaining elements; namely, whether Pauline‘s injury was caused by employee negligence or was due to a physical defect in the floor mat.
{¶ 20} In order to establish employee negligence, appellants must show the existence of a duty, a breach of that duty, and an injury proximately resulting from the breach. Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 680, 693 N.E.2d 271 (1998). The failure to prove any element is fatal to a negligence claim. Whiting v. Ohio Dept. of Mental Health, 141 Ohio App.3d 198, 202, 750 N.E.2d 644 (10th Dist.2001).
{¶ 21} As a threshold matter, we must determine the appropriate duty of cаre owed to Pauline. To determine the duty of care owed in premises liability actions, we examine
{¶ 22} The County (as well as CTS) argues that Pauline was a licensee to whom it owed no duty except to refrain from willfully or wantonly causing injury. On the contrary, appellants argue that Pauline was a business invitee, thereby obligating the County to exercise ordinary сare to maintain the premises in a safe condition, and to warn of latent or hidden dangers of which it had, or reasonably should have had, knowledge.
{¶ 23} “Business invitees are persons who come upon the premises of another, by invitation, express or implied, for some purpose which is beneficial to the owner.” Light v. Ohio Univ., 28 Ohio St.3d 66, 68, 502 N.E.2d 611 (1986), citing Scheibel v. Lipton, 156 Ohio St. 308, 102 N.E.2d 453 (1951). A property owner must exercise ordinary care and protect the invitee by maintaining the premises in a safe condition. Id., citing Presley v. Norwood, 36 Ohio St.2d 29, 31, 303 N.E.2d 81 (1973). “A plaintiff must prove his or her status as a business invitee by submitting evidentiary material showing that the defendant receivеd a benefit or encouraged or invited the plaintiff to use the premises.” Turner at ¶ 12, citing Roesch v. Warren Distrib./Fleet Eng. Research, 146 Ohio App.3d 648, 652, 767 N.E.2d 1187 (8th Dist.2000).
{¶ 24} “Conversely, a person who enters the premises of another by permission or acquiescence, for his own pleasure or benefit, and not by invitation, is a licensee.” Light at 68. “The duty of a property owner to a licensee is not to injure him or her by willful or wanton misconduct or any affirmative act of negligence.” Id., citing Scheurer v. Trustees of Open Bible Church, 175 Ohio St. 163, 192 N.E.2d 38 (1963). Willful and wanton acts are those that demonstrate intent or reckless disregard of the safety of others. France v. Lambert, 5th Dist. Stark No. CA-8197, 1990 WL 187081, *2 (Nov. 26, 1990). A licensee must show that the defendant knew that injury was likely to occur. Id.
{¶ 25} In its decision, the trial court did not address the question of whether Pauline was a business invitee or a licensee. Rather, the trial court assumed that Pauline was a business invitee and proceeded to deny recovery to appellants on the basis that the alleged curling of the floor mat constituted an open and obvious hazard. Nonetheless, the County insists that Pauline was a licensee since she was visiting the courthouse for her own benefit.
{¶ 26} Indeed, Ohio courts that have examined the status of entrants onto state or local government property and have generally classified the entrants as licensees. Estate of Enzweiler v. Clermont Cty. Bd. of Commrs., 12th Dist. Clermont Nos. CA2010-11-085, CA2010-11-086, 2011-Ohio-896, ¶ 16, citing Souther v. Preble Cty. Dist. Library, West Elkton Branch, 12th Dist. Preble No. CA2005-04-006, 2006-Ohio-1893, ¶ 14. See also Provencher v. Ohio Dept. of Transp., 49 Ohio St.3d 265, 551 N.E.2d 1257 (1990),
{¶ 27} Upon examination of the nature of Shotts‘s visit to the courthouse, the Fourth District determined that she was a licensee. Id. at *3. In reaching its conclusion, the court reasoned that Shotts was not present at the courthouse for the benefit of the county or the county commissioners. Id. Rather, the court found that she was at the courthouse for her own benefit, namely to “facilitate the children‘s visitation with their father.” Id. See also Estate of Enzweiler, supra (finding that a visitor of the courthouse was a licensee despite hеr claim that the county could have received funds from a filing fee generated by her title examination).
{¶ 28} Similar to the courthouse visitor in Shotts, Pauline‘s presence at the Lucas County Courthouse was not for the benefit of the County. Instead, the purpose for Pauline‘s visit to the courthouse was to “pay whatever costs and fees were necessary to
{¶ 29} Nonetheless, appellants contend that Pauline benefited the County by paying Gregory‘s fees and costs, as wеll as his attorney‘s fees, which would have otherwise been borne by the County. Our research has found no Ohio case directly addressing the issue of whether a visitor to a courthouse is entitled to invitee status based upon his or her payment of court costs. However, this issue was addressed in Simpson v. Harris County, 951 S.W.2d 251 (Tex.App.1997). There, the 14th District Court of Appeals of Texas held that the payment of filing fees, which are used to support the judiciary and its related support services, does not entitle the payee to invitee status. Id. at 253.
{¶ 30} Upon due consideration, we agree with the court in Simpson that Pauline‘s payment of Gregory‘s costs does not operаte as a benefit to the County. Thus, we find that Pauline was a licensee when she visited the courthouse on January 6, 2010. As such, the County owed Pauline a duty not to injure her by willful or wanton misconduct or any affirmative act of negligence. Light, supra, 28 Ohio St.3d at 68, 502 N.E.2d 611 (1986).
{¶ 31} “Willful conduct ‘involves an intent, purpose or design to injure.‘” McKinney v. Hartz & Restle Realtors, Inc., 31 Ohio St.3d 244, 246, 510 N.E.2d 386 (1987), quoting Denzer v. Terpstra, 129 Ohio St. 1, 193 N.E. 647 (1934), paragraph two of the syllabus. “Wanton conduct occurs when one ‘fails to exercise any care whatsoever
{¶ 32} Having reviewed the materials submitted with appellants’ opposition to the County‘s motion for summary judgment, we have found no evidence of willful or wanton misconduct surrounding the County‘s handling of the floor mats. Rather, the County produced evidence demonstrating that courthouse deputies conduct insрections of the courthouse each morning to ensure the safety of the visitors and verify that the courthouse was not broken into overnight. Further, appellants have failed to introduce any evidence demonstrating that the County had notice, constructive or otherwise, of the alleged curls in the floor mat prior to Pauline‘s fall.
{¶ 33} Because appellants failed to submit evidence to create a genuine issue of material fact on the question of whether Pauline‘s injuries resulted from the willful or wanton misconduct or negligence of a County еmployee, we find that the trial court properly concluded that the County was immune from liability under
{¶ 34} Accordingly, appellants’ first assignment of error is not well-taken.
C. Grant of Summary Judgment to CTS
{¶ 35} In their second assignment of error, appellants argue that the trial court erred in granting CTS‘s motion for partial summary judgment as to their negligence claim. In particular, appellants argue that the trial court erred in finding that Pauline was not owed a duty of care as an intended third-party beneficiary to the contract between the County and CTS. Further, appellants take issue with the trial court‘s conclusion that the open-and-obvious doctrine bars their recovery against CTS.
{¶ 36} In its decision granting CTS‘s motions for partial summary judgment, the trial court addressed the above arguments advanced by appellants. Initially, the trial court noted that the floor mat upon which Pauline fell was not under CTS‘s control or possession at the time of the fall.
{¶ 37} Regarding appellants’ contention that Pauline was owed a duty of care as an intended third-party beneficiary, thе trial court found that appellants failed to include such an allegation in their amended complaint. Nonetheless, the court examined the terms of the contact between CTS and the County, and concluded Pauline was not an intended third-party beneficiary.
{¶ 38} Ohio uses the “intent to benefit” test to determine whether a third-party is an intended beneficiary. Under that test, a third-party is not an intended beneficiary under a contract unless there is “evidence that the contract was intended to directly benefit that third-party. Generally, the parties’ intention to benefit a third-party will be found in the language of the agreement.” Huff v. FirstEnergy Corp., 130 Ohio St.3d 196, 2011-Ohio-5083, 957 N.E.2d 3, ¶ 12.
{¶ 39} Here, the contract between CTS and the County is silent as to third parties. Notwithstanding the absence of any such reference, appellants argue that the following contract language gives rise to an inference that courthouse visitors are intended third-party beneficiaries:
11. INSURANCE – If this order covers the performance of labor for the County, seller agrees to indemnify and protect the County against all liabilities, claims or demands for injuries or damages to any person or proрerty growing out of the performance of this contract, by seller, its servants, employees, agents or representatives. Seller further agrees to furnish, upon County‘s request, Insurance Carrier‘s Certificate showing that seller has adequate workers compensation, public liability and property damage insurance coverage.
{¶ 40} Contrary to appellants’ argument, we find nothing in the foregoing indemnification clause that demonstrates appellees entered into the contract with the
{¶ 41} Next, we turn to appellants’ contention that the trial court errеd in holding that they were barred from recovering on their negligence claim against CTS under the open-and-obvious doctrine.
{¶ 42} The open-and-obvious doctrine provides that owners do not owe a duty to persons entering their premises regarding dangers that are open and obvious. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 14, citing Sidle v. Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589 (1968), paragraph one of the syllabus. The rationale underlying this doctrine is “that the open and obvious nature of the hazard itself serves a warning. Thus, the owner or occupier may reasonably expect that persons entering the premises will discover those dangеrs and take appropriate measures to protect themselves.” (Emphasis added.) Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 644, 597 N.E.2d 504 (1992).
{¶ 43} Here, appellants insist that the trial court erred in applying the open-and-obvious doctrine to their negligence claim against CTS, which is not an owner or occupier of the courthouse.
{¶ 44} Relevant to this issue, the Supreme Court of Ohio held in Simmers, supra, that “[a]n independent contractor who creates a dangerous condition on real property is not relieved of liability under the doctrine which exonerates an owner or occupier of lаnd from the duty to warn those entering the property concerning open and obvious dangers on the property.” Id. at syllabus. In addition, we have previously found that “the open-and-obvious doctrine only exonerates an owner or occupier of the land from the duty to protect against open and obvious dangers; an independent contractor is not relieved of liability.” Semprich v. Erie Cty., 6th Dist. Erie No. E-12-070, 2013-Ohio-3561, ¶ 19, citing Simmers at 645.
{¶ 45} Construing the holding in Simmers, the trial court in the case sub judice found that the open-and-obvious doctrine does not apply in cases in which the independent contractor created the danger that caused the injury, but remained available to independent contractors who did not affirmatively create the danger. The court went on to note the absence of any evidence that CTS caused the alleged curls in the floor mat. However, the court stopped short of relying upon the open-and-obvious doctrine to support its decision granting CTS‘s motion for summary judgment. Rather, the court
{¶ 46} Wе agree with the trial court‘s award of summary judgment to CTS based upon the general laws of negligence. Specifically, we agree with the trial court that there are no genuine issues of material fact on the element of causation.
{¶ 47} Under Ohio law, “if an injured patron cannot identify the cause of her fall, a finding of negligence is precluded.” Brown v. The Twins Group-PH LLC, 2d Dist. Clark No. 2004CA59, 2005-Ohio-4197, ¶ 12, citing Russell v. Creatif’ Catering, Inc., 2d Dist. Montgomery No. 17031, 1998 WL 833811 (Dec. 4, 1998). See also Lewin v. Lutheran W. High School, 8th Dist. Cuyahoga No. 88635, 2007-Ohio-4041, ¶ 15, citing Cleveland Athletic Assn. Co. v. Bending, 129 Ohio St. 152, 194 N.E. 6 (1934) (“To prevail on a negligence theory in a slip and fall case, the plaintiff must be able to identify the reason for the fall.“). “As such, a plaintiff will be prevented from establishing negligence when he, either personally or with the use of outside witnesses, is unable to identify what caused the fall. In other words, a plaintiff must know what caused him to slip and fall. A plaintiff cannot speculate as to what caused the fall.” Beck v. Camden Place at Tuttle Crossing, 10th Dist. Franklin No. 02AP-1370, 2004-Ohio-2989, ¶ 12. (Internal citations omitted.)
{¶ 48} In Brown, supra, Rita Brown suffered a broken bone near her shoulder when she tripped and fell on a floor mat at a Pizza Hut restaurant. While waiting for her
{¶ 49} As a result of her injuries, Brown filed suit against the owner of the Pizza Hut restaurant. The trial court subsequently granted the restaurant owner‘s motion for summary judgment. On appeal, the Second District found, inter alia, that the restaurant owner was entitled to summary judgment on Brown‘s negligence claim because Brown could not identify what caused her to trip and fall. Id. at ¶ 13. The court reasoned that Brown “only noticed that a corner of the mat was flipped up after she fell. She did not know whether it was flipped up before she fell, or if her fall flipped it up. Brown cannot identify what caused her to fall. As a result, a finding of negligence is precluded.” Id.
{¶ 50} Likewise, in this case, appellants cannot identify the cause of Pauline‘s fall. Indeed, when asked about the cause of her fall at her deposition, Pauline stated: “That rug probably in front of me. Otherwise, I don‘t know. The rug was curled up.” Notably,
{¶ 51} Accordingly, appellants’ second assignment of error is not well-taken.
III. Conclusion
{¶ 52} Having found apрellants’ assignments of error not well-taken, we hereby affirm the judgment of the Lucas County Court of Common Pleas. Costs are assessed to appellants in accordance with
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J. ____________________________
JUDGE
Stephen A. Yarbrough, P.J.
____________________________
James D. Jensen, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.