2006 Ohio 1893 | Ohio Ct. App. | 2006
{¶ 2} The Preble County Library District ("the District") was authorized and established pursuant to Chapter 3375 of the Ohio Revised Code as a free public library. The District's several branches, all situated in Preble County, are controlled and managed by a single seven-member board of trustees. The building housing the West Elkton branch of the library has been leased by the District since approximately 1986 and was constructed prior to the library's occupancy. The District remodeled the interior of the structure in 2001, including painting and re-carpeting. The interior includes a single step approximately eight inches in height and eleven feet in length. The carpeting on the step is the same color as that on the upper and lower floors. The step is not designated by any signage, reflective tape, or distinctive illumination. According to the affidavits of two library employees, there had been no accidents or occurrences associated with the step prior to the incident in question.
{¶ 3} On May 20, 2002, 83-year-old Dwight Souther ("decedent") visited the West Elkton branch of the library with his grandchildren. Decedent ascended the step with the help of two people. A few minutes later he fell off the step, injuring his left hip. Decedent underwent hip replacement surgery the next day. He died approximately six months after the accident, following infection and additional surgery.
{¶ 4} On May 19, 2003, appellants filed suit as representatives of decedent's estate, alleging negligence. Appellees filed their respective motions for summary judgment. On March 23, 2005, the trial court granted the motions and dismissed the action. Appellants timely filed a notice of appeal, raising four assignments of error.
{¶ 5} Each of appellants' assignments of error directly or indirectly attacks the trial court's grant of summary judgment. Accordingly, we must first consider our standard review. We review a trial court's decision on a summary judgment motion de novo. Burgess v. Tackas (1998),
{¶ 6} In order to survive summary judgment after appellees demonstrated that there were no genuine issues for trial, appellants needed to show that the evidence, when viewed in their favor, established as a matter of law that there were genuine issues of material fact concerning one or more of the necessary elements of negligence. In order to establish a claim in negligence, appellants must have shown that appellees owed decedent a legal duty of care, that this duty was breached, and that this breach proximately caused decedent's injury. Wallacev. Ohio Dept. of Commerce,
{¶ 7} Assignment of Error No. 1:
{¶ 8} "THE TRIAL COURT ERRED WHEN IT RULED THAT THE PLAINTIFF [SIC] WAS A LICENSEE AND THAT DEFENDANTS WERE ENTITLED TO IMMUNITY UNDER ORC SECTION 2744.029(A)(1) AND THAT THE INDIVIDUAL MEMBERS OF THE BOARD WERE IMMUNE FROM LIABILITY UNDER SECTION 2744.03(A)(6)."
{¶ 9} Appellants urge this court to find that appellees are not shielded from liability by sovereign immunity because appellees breached a duty of ordinary care owed to decedent as a business invitee. Alternatively, appellants assert that immunity is abrogated by the imposition of express statutory liability on appellees.
{¶ 10} Ohio Revised Code Chapter 2744 establishes a three-tiered analysis for determining whether a political subdivision is immune from tort liability. Grooms v. Crawford,
Brown App. Nos. CA2005-05-008, CA2005-05-009,
{¶ 11} In the case at bar, the trial court determined that sovereign immunity was available to appellees because the District and its board of trustees, as well as the Village of West Elkton, were included in the term "political subdivision." See R.C.
{¶ 12} One exception, R.C.
{¶ 13} A second exception, R.C.
{¶ 14} In cases of premises liability, the scope of the duty owed to a visitor depends upon his status. Shump v. FirstContinental-Robinwood Assoc.,
{¶ 15} A review of the record compels the conclusion that decedent was a licensee. As the trial court noted, "[v]isitors on state or local government property are generally classified as licensees." See, e.g., Provencher v. Ohio Dept. of Transp.
(1990),
{¶ 16} Although appellants argue that decedent was a "business invitee," their proffered line of reasoning in support of this contention echoes the "public invitee" standard. As set forth in the Restatement of the Law 2d, Torts (1965), Section 332(2), "[a] public invitee is a person who is invited to enter and remain on land as a member of the public for a purpose for which the land is held open to the public." The Ohio Supreme Court rejected this standard most recently in Provencher v. OhioDept. of Transp. (1990),
{¶ 17} Employing the proper standard in the present matter, the appropriate focus is not the purpose of the library but the benefits received in its use. Patrons primarily visit the library to take advantage of its free resources. Thus, the benefit retained is personal to these patrons and does not accrue to the library itself. By appellants' own admission, decedent entered the library in order for his grandchildren to use its computers. The library did not benefit from the children's use of the computers; decedent and his grandchildren received the sole benefit. Decedent was therefore a licensee.
{¶ 18} As a licensee, appellees owed decedent a duty to refrain from wanton, reckless, or willful conduct. Appellants fail to allege that appellees acted in a wanton, reckless, or willful manner. In the absence of such conduct, there can be no breach of the duty owed to decedent by appellees. Without a breach of duty, appellants' negligence claim fails. Because appellants failed to establish a negligent performance of government functions resulting from defects in the library building, R.C.
{¶ 19} A third immunity exception, R.C.
{¶ 20} "Any building, structure, or part thereof, constructed, erected, altered, manufactured, or repaired not in accordance with the statutes of this state or with the rules of the board, and any building, structure, or part thereof in which there is installed, altered, or repaired any fixture, device, and material, or plumbing, heating, or ventilating system, or electric wiring not in accordance with such statutes or rules is a public nuisance." R.C.
{¶ 21} Appellants maintain that the failure of appellees to install a ramp and handrails at the time the building was converted into a library in compliance with building code regulations violates R.C.
{¶ 22} Although appellants identify the issue of whether the individual members of the law library board of trustees were immune from liability under section
{¶ 23} Because appellants have failed to establish that there were any genuine issues regarding the applicability of sovereign immunity to appellees, their first assignment of error is overruled.
{¶ 24} Assignment of Error No. 2:
{¶ 25} "THE COURT ERRED IN GRANTING DEFENDANT-APPELLANTS [SIC] SUMMARY JUDGMENT BY IGNORING THE FACT THAT THE DEFENDANTA-PPELLANTS [SIC] HAD A DUTY TO MAKE THE WEST ELKTON LIBRARY HANDICAP ACCESSIBLE WHEN THEY CONVERTED THE BUILDING TO A LIBRARY."
{¶ 26} Assignment of Error No. 3:
{¶ 27} "THE COURT ERRED IN RULING THAT THE DEFENDANT-APPELLEES DID NOT HAVE TO COMPLY WITH OHIO BASIC BUILDING CODE AND/OR PREBLE COUNTY BUILDING REGULATIONS."
{¶ 28} Although neither explicit nor clear, appellants appear to assert liability on the basis that appellees were negligent per se. Spanning the first three assignments of error, appellants offer a number of authorities upon which to premise per se liability. Appellants assert that the failure to make the building handicapped-accessible when converted into a library violates the ADA. As previously mentioned, appellants argue that appellees were negligent due to the fact that the library was not in compliance with administrative regulations. Specifically, appellants allege that appellees failed to obtain the requisite Certificate of Occupancy pursuant to Ohio Adm. Code
{¶ 29} In Chambers v. St. Mary's School,
{¶ 30} The ADA also cannot be cited to impose per se liability. Title II of the ADA provides that qualified individuals shall not be "excluded from participation in or
denied the benefits of the services, programs, or activities of a public entity[.]" Section 12132, Title 42, U.S. Code. Appellants did not present any evidence that decedent was a "qualified individual with a disability" for ADA purposes. See Section 12131(2), Title 42, U.S. Code.4 In the absence of such proof, decedent cannot invoke the protections of the ADA. Lovellv. Chandler (C.A.9, 2002),
{¶ 31} We additionally note that appellants' reliance on Ohio Adm. Code
{¶ 32} Appellants' second and third assignments of error are overruled.
{¶ 33} Assignment of Error No. 4:
{¶ 34} "THE COURT ERRED IN APPLYING THE `OPEN AND OBVIOUS' LEGAL THEORY TO THIS CASE."
{¶ 35} Appellants insist that excusing appellees' duty to warn decedent of the existence of the step by invocation of the open and obvious doctrine conflicts with appellees' duty to comply with building code regulations.
{¶ 36} The open and obvious doctrine concerns the first prong of a negligence claim — the existence of a duty. Where the danger is open and obvious, a property owner owes no duty of care to individuals lawfully on the premises. Armstrong v. Best Buy Co.,Inc.,
{¶ 37} The Chambers court, in holding that the violation of an administrative regulation does not constitute negligence per se, did not address the applicability of the open and obvious doctrine under such circumstances. Chambers,
{¶ 38} We find that the open and obvious nature of a condition is one of many facts to be considered on summary judgment in a negligence claim. In the case at bar, the step in the library was neither hidden nor concealed. Rather, it was observable and discoverable by an ordinary inspection. The step was an open and obvious hazard which decedent did in fact observe upon traversing it minutes prior to the accident. See Raflo v.Losantiville Country Club (1973),
{¶ 39} Assuming, arguendo, that the open and obvious doctrine should not be applied to this particular case and that the step did not comply with building code regulations, appellants still cannot survive summary judgment on their negligence claim. As previously mentioned, the requisite duty owed to decedent as a licensee was the duty to avoid wanton, reckless, or willful conduct. As also mentioned, appellants failed to allege that appellees engaged in such conduct. Consequently, even if the open and obvious doctrine is not applied to relieve appellees' duty of care to decedent, appellants failed to show that appellees breached the applicable duty. Without a breach, the negligence claim fails.
{¶ 40} Appellants' fourth assignment of error is overruled.
{¶ 41} In view of the preceding facts, we conclude that appellants failed to satisfy their reciprocal evidentiary burden after appellees demonstrated that there were no genuine issues for trial. Accordingly, the trial court properly granted summary judgment in favor of appellees.
{¶ 42} Judgment affirmed.
Walsh and Bressler, JJ., concur.
