Tonya Turner, et al. v. Cathedral Ministries
Court of Appeals No. S-14-020
Trial Court No. 13 CV 617
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT SANDUSKY COUNTY
Decided: February 20, 2015
[Cite as Turner v. Cathedral Ministries, 2015-Ohio-633.]
JENSEN, J.
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James L. Murray, for appellant.
W. Charles Curley, for appellee.
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JENSEN, J.
{¶ 1} Plaintiff-appellant, Tonya Turner, appeals the judgment of the Sandusky County Court of Common Pleas, journalized on May 5, 2014, which granted summary judgment in favor of defendant-appellee, Cathedral Ministries. For the reasons that follow, we reverse and remand for further proceedings.
{¶ 2} On July 7, 2011, Turner was at The Church on 53, an entity associated with Cathedral Ministries, for a free religious education course offered by the church. After dropping her six-year-old daughter off at the church‘s child care room, located on the north side of the building, she got a cup of coffee and headed to the south side of the building where the class was being held. As she approached the classroom, she tripped on a two-by-four that was stacked along a wall among other two-by-fours of varying lengths and was protruding into the walkway. She caught her left foot on it and fell, fracturing her right foot. Since injuring her foot she has undergone multiple surgeries and hospitalizations to treat both the fracture and resulting complications, including a staph infection and MRSA. She alleges that she suffers from chronic pain which has prevented her from working and performing other daily activities.
{¶ 3} The two-by-fours, which Turner said were difficult to discern from the tile floor because of their color, had been placed against the wall by Pastor Matthew Coutcher.1 The classroom where the class was being held was under construction, and Coutcher needed to move the building materials quickly in preparation for using the room. He stacked the plywood against the wall along with some drywall. He was aware when he placed the two-by-fours against the wall that one or two of the boards exceeded the length of the wall and would protrude into the walkway. He said that there was a trash can next to the wall and that the plywood stuck out a little bit further than the trash
{¶ 4} Turner filed this negligence action against Cathedral Ministries and several John Doe defendants on July 5, 2013. She alleged that defendants were negligent in placing the board in the entrance way to the classroom and “in failing to warn business invitees of the hazard they created.”
{¶ 5} After exchanging written discovery and conducting several depositions, Cathedral Ministries moved the trial court for summary judgment, arguing (1) that Turner was a licensee—not a business invitee—of the church, thus it is liable for only willful or wanton conduct, which had not been alleged or established; and (2) that the protruding two-by-four was an open and obvious hazard that it had no duty to protect against.
{¶ 6} The trial court granted summary judgment in favor of Cathedral Ministries. On the authority of the Ohio Supreme Court‘s decision in Provencher v. Ohio Dept. of Transp., 49 Ohio St.3d 265, 551 N.E.2d 1257 (1990), and our decision in Madison v. Woodlawn Cemetery, 6th Dist. Lucas No. L-10-1131, 2010-Ohio-5650, it held that Turner was a licensee—not a business invitee—thus Cathedral Ministries owed Turner a
{¶ 7} Turner timely appealed and she assigns the following errors for our review:
- The Trial Court Erred In Granting Summary Judgment In Favor Of The Defendant-Appellee Church On The Basis That Plaintiff/Appellant Was A Licensee, Not An Invitee, And Consequently Not Owed A Duty Of Ordinary Care.
- The Trial Court Erred In Granting Summary Judgment In Favor Of The Defendant-Appellee Church. The Church Owed Plaintiff Member A Duty To Exercise Ordinary Care. A Member Of A Church And/Or Attendee Of A Religious Study Class Is Owed A Duty To Exercise Ordinary Care By The Church Whether An Invitee Or A Guest.
- The Trial Court Erred In Granting Summary Judgment In Favor Of The Defendant-Appellee Church With Respect To Its Employee‘s (Pastor Matthew Coutcher) Negligence In His Conduct In Performing And/Or Supervising Construction Related Activities On Behalf Of The Church.
- The Trial Court Erred In Granting Summary Judgment In Favor Of The Defendant-Appellee Church Because A Question Of Fact Existed
As To Whether The Church, Through The Conduct Of Its Pastor, Failed To Exercise Reasonable Care In The Clean-Up And/Or Supervision Of The Construction Activities Being Performed By Him.
II. Standard of Review
{¶ 8} Appellate review of a summary judgment is de novo, Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), employing the same standard as trial courts. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is demonstrated:
- that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375 N.E.2d 46 (1978),
Civ.R. 56(C) .
{¶ 9} When seeking summary judgment, a party must specifically delineate the basis upon which the motion is brought, Mitseff v. Wheeler, 38 Ohio St.3d 112, 526 N.E.2d 798 (1988), syllabus, and identify those portions of the record that demonstrate the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). When a properly supported motion for summary judgment is
III. Analysis
{¶ 10} In a premises liability negligence action, the relationship between the owner or occupier of the premises and the injured party determines the scope of the duty owed. Mostyn v. CKE Restaurants, Inc., 6th Dist. Williams No. WM-08-018, 2009-Ohio-2934, ¶ 13, citing Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315, 662 N.E.2d 287 (1996). That relationship will fall into one of three categories: invitee, licensee, or trespasser. Id.
{¶ 11} Turner‘s first assignment of error requires us to determine the duty of care owed to her by Cathedral Ministries. Cathedral Ministries argues—and the trial court held—that Turner was a licensee, thus Cathedral Ministries owed no duty to Turner except to refrain from willfully or wantonly causing injury. Turner argues that she was a business invitee, thereby obligating Cathedral Ministries to exercise ordinary care to
{¶ 12} “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 received a benefit or encouraged or invited the plaintiff to use the premises. Roesch v. Warren Distrib./Fleet Eng. Research, 146 Ohio App.3d 648, 652, 767 N.E.2d 1187 (8th Dist.2000).
{¶ 13} “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.” 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.
{¶ 15} In Provencher, the Ohio Supreme Court considered the status to assign a plaintiff who was injured at a public roadside rest area facility. Plaintiff claimed that she was a business invitee.3 She argued that the benefit conferred to the defendant by her use of the roadside rest area was increased safety on the highway. The court rejected this argument. It observed that “the economic (or tangible) benefit test has long been recognized in this court in order to distinguish the status of an invitee from that of a licensee.” Id. at 266. It clarified that “[i]ncreased safety on the highways is not the type of benefit intended” and that any such benefit to highway safety was “intangible and not easily calculated.” Id.
{¶ 16} In Madison, 6th Dist. Lucas No. L-10-1131, 2010-Ohio-5650, we applied Provencher in determining the status of a plaintiff who was injured while visiting the grave of her deceased uncle. In the trial court, the parties had stipulated that the plaintiff was a business invitee. The trial court rejected this stipulation and conducted its own analysis, concluding that plaintiff was merely a licensee. On appeal, we affirmed. We agreed that the trial court was not required to accept the parties’ stipulation as to an
[The plaintiff] offered no evidence that Woodlawn received any tangible benefit from her visit to the cemetery. She did not pay an entrance fee, purchase flowers, or anything of tangible value. She did not receive a bill from Woodlawn or pay Woodlawn for any services associated with her visit to the cemetery. Madison, 6th Dist. Lucas No. L-10-1131, 2010-Ohio-5650, at ¶ 23.
{¶ 17} We are aware of only one Ohio case—Freshwater v. Piqua Baptist Church, 2d Dist. Miami No. 88-CA-30, 1989 WL 33106 (Apr. 7, 1989), cited by Turner—analyzing the specific question of the status held by a person injured on church property while attending a church-sponsored activity.4 In that case, the court determined that the plaintiff, a teen who was attending a church-sponsored youth retreat at the invitation of a
{¶ 18} Cathedral Ministries argues that because Freshwater was decided before the Ohio Supreme Court‘s ruling in Provencher, it is no longer good law. We agree that Provencher now requires a more detailed analysis and we cannot simply rely on Freshwater to establish the duty of care owed to Turner. Nevertheless, we reach the same conclusion.
{¶ 19} Turner testified at her deposition that she attended a series of classes offered to people interested in becoming members and learning more about the church. The church secretary testified at deposition that she considered Turner to be a member of the church. Turner approximated that she had been to the church 20 times before her fall, attending services, classes, or other church-sponsored functions. Turner‘s younger children went to the child care center. Her oldest daughter was involved with the church youth group. Turner would put money in the weekly collection when she could afford to do so. Although the class she was attending on the evening of her fall was offered at no charge to participants, registration for the class was required and those who signed up were expected to attend. The class was offered to members and non-members alike.
(a) the satisfaction of knowing that the church is offering and providing valuable services to individuals in need; (b) the opportunity to engage individuals in the life of the church; (c) the possibility of attracting new church attendees or members; (d) the possibility of further engaging current members of the church; (e) the possibility of developing devoted followers of Jesus Christ; and (f) the possibility of strengthening the devotion of those who currently follow Jesus Christ.
{¶ 21} The evidence makes clear that Cathedral Ministries did not merely permit or acquiesce in allowing Turner into its building. It invited participants, required them to sign up for the class, and expected them to attend once they committed to it. In this way, the situation differs from one in which a family member is allowed to visit a gravesite or a traveler is permitted to use a public rest stop.
{¶ 23} We, therefore, find Turner‘s first assignment of error well-taken. In light of this conclusion, we need not reach her remaining assignments of error.
IV. Conclusion
{¶ 24} Because we conclude that Turner was a business invitee, not a licensee, we reverse the May 5, 2014 judgment of the Sandusky County Court of Common Pleas granting summary judgment in favor of Cathedral Ministries. We remand this matter to the trial court for proceedings consistent with this decision. The costs of this appeal are assessed to Cathedral Ministries pursuant to
Judgment reversed.
Arlene Singer, J.
JUDGE
Stephen A. Yarbrough, P.J.
JUDGE
James D. Jensen, J. 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.