Patten v. Univ. of Cincinnati

Sent to S.C. Reporter 2/28/24

MEMORANDUM DECISION

{¶1} Marjorie Patten ("plaintiff) filed this claim against defendant, University of Cincinnati ("UC"), to recover damages which occurred when plaintiff fell while she was walking on a sidewalk, on October 21, 2022, near the intersection of Vine Street and Martin Luther King Boulevard in Cincinnati, Ohio. Plaintiff stated that she was in Cincinnati for a family wedding and was staying at The Graduate Hotel. Plaintiff went on a walk when a runner approached her; she moved slightly to avoid his path, which caused her foot to go off the edge of the sidewalk where there was a "ditch about 2-3 inches deep." She then lost her balance and fell. Plaintiff learned from the City of Cincinnati that the sidewalk is maintained by UC. Plaintiff asserted that the fall caused facial lacerations, a broken nose, 32 stitches in her mouth and tongue, loss of blood, a bruised knee, inflammation in her rotator cuff, jaw trauma and pain, and loss of feeling in her lower lip. Plaintiff seeks damages in the amount of $2,005.63, including $1,426.01 for travel and food expenses to and from Cincinnati for the family wedding, and $579.62 for medical expenses related to her fall. Plaintiff submitted the $25.00 filing fee.

{¶2} UC submitted an investigation report denying liability in this matter. UC asserted that plaintiff was a licensee at the time of the accident and that it only owed her a duty to refrain from wantonly or willfully causing her injury. Defendant cited Yonut v. Salemi, 10th Dist. Franklin No. 05AP-1094, 2006-Ohio-2744, in support of this assertion. Further, defendant argued that a municipal ordinance does not confer a private right of action. Defendant stated that there is no evidence that it affirmatively created or negligently maintained the sidewalk so plaintiffs claim should be dismissed. In the alternative, defendant argued that even if plaintiff was an invitee, not a licensee, she cannot prevail on this claim because the "ditch" was an open and obvious condition, so defendant had no duty to warn plaintiff of the defect. Defendant attached two exhibits to its investigation report. Exhibit A is a letter from the City of Cincinnati dated March 31, 2023, five months after plaintiff's fall, notifying defendant that the sod along the sidewalk had eroded and that according to municipal code, UC is required to remedy the nuisance. Exhibit B is a photograph of the area where plaintiff fell that shows the sidewalk and the adjacent area with eroded sod.

{¶3} Plaintiff submitted a response to defendant's investigation report reasserting her claim. Plaintiff attached photos of the sidewalk, which she states were taken on October 23, 2022. The photos show an area of adjacent sod that differs in elevation from the sidewalk, which is clearly visible. Plaintiff also submitted a photo of her face after her fall, which depicts bruising.

{¶4} To prevail on a negligence claim, plaintiff must establish that defendant owed her a duty, that defendant's acts or omissions resulted in a breach of that duty, and that the breach proximately caused plaintiff's injuries. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 81, 2003-Ohio-2573, citing Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77 (1984). Under Ohio law, the duty owed by an owner or occupier of a premises generally depends on whether the injured person is an invitee, licensee, or trespasser. Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315 (1996).

{¶5} "Invitees are persons who rightfully come upon the premises of another by express or implied invitation, for some purpose that is beneficial to the owner. * * * A licensee is a person who enters the premises of another by permission or acquiescence, for [her] own pleasure or benefit, and not by invitation." (Internal citations omitted). Yonut v. Salemi, 10th Dist. Franklin No. 05AP-1094, 2006-Ohio-2744, ¶ 10.

{¶6} The court finds that plaintiff was a licensee when she was walking on the sidewalk because she was not there for any benefit to the property owner or licensor UC. "The licensor is not liable for ordinary negligence and owes the licensee no duty except to refrain from wantonly or willfully causing injury." Light v. Ohio Univ., 28 Ohio St.3d 66, 502 N.E.2d 611 (1986). Plaintiff has failed to produce any evidence that UC breached this duty.

{¶7} Even if plaintiff was considered an invitee, she has not proven negligence. An owner or occupier of a premises owes its invitees "a duty of ordinary care in maintaining the premises in a reasonably safe condition and has the duty to warn its invitees of latent or hidden dangers." Armstrong at ¶ 5. In order "to establish that the owner or occupier failed to exercise ordinary care, the invitee must establish that: (1) the owner of the premises or his agent was responsible for the hazard of which the invitee has complained; (2) at least one of such persons had actual knowledge of the hazard and neglected to give adequate notice of its existence or to remove it promptly; or (3) the hazard existed for a sufficient length of time to justify the inference that the failure to warn against it or remove it was attributable to a lack of ordinary care." Price v. United Dairy Farmers, Inc., 10th Dist. Franklin No. 04AP-83, 2004-Ohio-3392, ¶ 6.

{¶8} However, under Ohio law, the open-and-obvious doctrine provides that premises owners do not owe a duty to persons entering those premises regarding dangers that are open and obvious. Armstrong at ¶ 14. The rationale underlying the doctrine is "that the open and obvious nature of the hazard itself serves as a warning. Thus, the owner or occupier may reasonably expect that persons entering the premises will discover those dangers and take appropriate measures to protect themselves." Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 644, (1992). In general, "'[o]pen-and-obvious dangers are those not hidden, concealed from view, or undiscoverable upon ordinary inspection.'" Thompson v. Ohio State Univ. Physicians, Inc., 10th Dist. Franklin No. 10AP-612, 2011-Ohio-2270, ¶ 12, citing Lydic v. Lowe's Cos., Inc., 10th Dist. Franklin No. 01AP-1432, 2002-Ohio-5001, ¶ 10.

{¶9} An individual "does not need to observe the dangerous condition for it to be an 'open-and-obvious' condition under the law; rather, the determinative issue is whether the condition is observable." Id. at ¶ 10. When considering whether the danger is open and obvious, the focus is on the ability of a reasonable person to perceive the danger under the circumstances, not on the actions of the individual plaintiff. Armstrong at ¶ 11, 13. Here, plaintiff has not proven that the area of eroded sod adjacent to the sidewalk was concealed or otherwise undiscoverable. Therefore, under the circumstances presented, plaintiff should have been able to discern the condition and protect herself from any danger presented. Defendant owed no duty to protect or warn plaintiff from such an open and obvious condition. Consequently, judgment is rendered in favor of defendant.

ENTRY OF ADMINISTRATIVE DETERMINATION

{¶10} Having considered all the evidence in the claim file, and for the reasons set forth in the memorandum decision filed concurrently herewith, judgment is rendered in favor of defendant. Court costs shall be absorbed by the court in excess of the filing fee.