Perko v. Healthcare Servs. Group, Inc. ( 2021 )

[Cite as Perko v. Healthcare Servs. Group, Inc., 2021-Ohio-4216.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JACQUELINE PERKO, :
Plaintiff-Appellant, :
No. 110267
v. :
HEALTHCARE SERVICES GROUP,
INC., ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 2, 2021
Civil Appeal from the Cuyahoga County Common Pleas Court
Case No. CV-19-918996
Appearances:
Paul Flowers Co., L.P.A., Paul W. Flowers, and Louis E
Grube; Ciano & Goldwaser, L.L.P., Andrew S.
Goldwasser, Sarah E. Katz, and Brent S. Silverman, for
appellant.
Ulmer & Berne, L.L.P., Dolores P. Garcia Prignitz, and
Kathryn Bartolomucci, for appellees.
SEAN C. GALLAGHER, P.J.:
Jacqueline Perko, by and through her attorney in fact Laura Ward,1
appeals the trial court’s decision granting summary judgment in favor of Solon
Pointe at Emerald Ridge, L.L.C., and Solon Management, L.L.C. (collectively “Solon
Pointe”) upon Perko’s negligence claims, which stem from a slip-and-fall incident
that occurred because of the conduct of an independent contractor hired by Solon
Pointe. For the following reasons, we affirm.
Perko lived at Solon Pointe’s facility, which is a senior-living home
offering assisted living and skilled nursing care. According to Perko’s allegations,
the facility is operating under R.C. Chapter 3721 with Perko being entitled to the
resident’s rights under R.C. 3721.13. Perko was injured at Solon Pointe’s facility
after slipping on a floor in a community room as it was being waxed.
Solon Pointe hired Healthcare Services Group, Inc. (“HSG”), to
perform housekeeping and laundry services at Solon Pointe’s facility at the time of
the incident. HSG’s duties required it to occasionally strip and wax the facility’s
floors. On the day of Perko’s injury, employees for HSG undertook the waxing task
at the direction of HSG. In order to wax the floor, the wax must be applied and then
1
On November 2, 2021, counsel for the appellant filed a suggestion of death indicating
that Jacqueline Perko died on August 6, 2021, while this appeal was pending. No motion
for substitution of a personal representative has been filed. If there is no representative,
then the proceedings shall be had as the court of appeals may direct. See App.R. 29(A);
Hamilton v. Barth, 1st Dist. Hamilton No. C-200027, 2021-Ohio-601, ¶ 2, fn. 1; In re C.J.,
2018-Ohio-931, 108 N.E.3d 677, ¶ 52 (10th Dist.). Despite the suggestion of death, we
direct that this appeal proceed and be determined as if Perko was not deceased.
permitted to dry. During that process, the floor remains slippery and typically “wet
floor” signs were set in place to warn pedestrians. In this case, the employees
stepped away from the unfinished project without erecting signage or otherwise
preventing access to the community room as the work was in progress, but a large,
commercial drying fan was placed in the room to speed the drying process. Perko
walked through the room, slipped, and fell. There is no dispute that HSG is an
independent contractor hired by Solon Pointe to undertake the floor-waxing
responsibilities.
During pretrial proceedings, Perko settled her claims with HSG, but
not before the trial court granted summary judgment in favor of Solon Pointe upon
all of Perko’s claims, rendering Solon Pointe’s indemnification crossclaims
advanced against HSG to be moot. It is this summary judgment ruling that Perko
appeals following the dismissal of all claims against HSG.
Summary judgment rulings are reviewed de novo, and appellate
courts apply the same standard as the trial court. Grafton v. Ohio Edison Co., 77
Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241. Review of summary judgment
is governed by the standard set forth in Civ.R. 56. Argabrite v. Neer, 149 Ohio St.3d
349, 2016-Ohio-8374, 75 N.E.3d 161, ¶ 14. Summary judgment is appropriate only
when “[1] no genuine issue of material fact remains to be litigated, [2] the moving
party is entitled to judgment as a matter of law, and, [3] viewing the evidence in the
light most favorable to the nonmoving party, reasonable minds can reach a
conclusion only in favor of the moving party.” Id., citing M.H. v. Cuyahoga Falls,
134 Ohio St.3d 65, 2012-Ohio-5336, 979 N.E.2d 1261, ¶ 12. Appellate courts provide
no deference to the trial court’s decision and independently review the record to
determine whether summary judgment is appropriate.
On a motion for summary judgment, the moving party carries an
initial burden of identifying specific facts in the record that establish his or her
entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293,
1996-Ohio-107, 662 N.E.2d 264. If the moving party fails to meet this burden,
summary judgment is not appropriate; if the moving party meets this burden, the
nonmoving party must then point to evidence of specific facts in the record
demonstrating the existence of a genuine issue of material fact for trial. Id. at 293.
If the nonmoving party fails to meet this burden, summary judgment is appropriate.
Id.
“[I]n order to establish actionable negligence, one seeking recovery
must show the existence of a duty, the breach of the duty, and injury resulting
proximately therefrom.” Strother v. Hutchinson, 67 Ohio St.2d 282, 285, 423
N.E.2d 467 (1981); Salvati v. Anthony-Lee Screen Printing, Inc., 2018-Ohio-2935,
117 N.E.3d 950, ¶ 3 (8th Dist.), citing Mussivand v. David, 45 Ohio St.3d 314, 318,
544 N.E.2d 265 (1989). The status of the person who enters upon the land of
another typically defines the scope of legal duty that the owner owes the entrant.
Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315, 1996-
Ohio-137, 662 N.E.2d 287. In this case, Perko’s status is irrelevant. It can be
assumed that Perko was at least owed the due care as exercised by a reasonably
prudent person under the circumstances to prevent foreseeable harm.
This assumption exists because generally under Ohio law, owners of
property are not liable for the negligent acts of an independent contractor hired to
undertake a task. Strayer v. Lindeman, 68 Ohio St.2d 32, 34, 427 N.E.2d 781 (1981),
citing 3 Ohio Jurisprudence 3d 332, Agency, Section 216; Parton v. Weilnau, 169
Ohio St. 145, 163, 158 N.E.2d 719 (1959); Lynch v. Karas Trucking, Inc., 8th Dist.
Cuyahoga No. 62606, 1993 Ohio App. LEXIS 3449, 3 (July 8, 1993) (the landlord
had delegated the duty to an independent contractor, and since that particular duty
to maintain a trash dumpster was not a nondelegable duty, the independent
contractor’s alleged negligence could not be imputed to the landlord).
There is an exception to that general rule for a duty that is
nondelegable. As Perko claims in this particular case, nondelegable duties generally
arise when affirmative duties are imposed on the employer by statute or when those
duties arise out of inherently dangerous work. Pusey v. Bator, 94 Ohio St.3d 275,
279, 2002-Ohio-795, 762 N.E.2d 968, citing Prosser & Keeton, The Law of Torts,
Section 71, 511-512 (5th Ed.1984); Albain v. Flower Hosp., 50 Ohio St.3d 251, 260-
261, 553 N.E.2d 1038 (1990). As a result, unless Perko can demonstrate either (1)
that the Solon Pointe had a nondelegable duty over the manner in which the floor
was waxed, or in the maintenance of the community space, based on a statutory
duty; or (2) that the act of waxing the floor was inherently dangerous as defined in
common law, Solon Pointe is entitled to summary judgment based on the fact that
Solon Pointe delegated the cleaning and maintenance duty to an independent
contractor whose conduct in undertaking that delegated responsibility constituted
the negligent act.
As to the first aspect of the nondelegable duty doctrine, a “landlord”
who is under a duty to provide specified safeguards or precautions for the safety of
others as created by statute or by administrative regulation, “‘is subject to liability to
the others for whose protection the duty is imposed for harm caused by the failure
of a contractor employed by him to provide such safeguards or precautions.’”
Shump v. First Continental-Robinwood Assocs., 71 Ohio St.3d 414, 421, 1994-Ohio-
427, 644 N.E.2d 291, quoting 2 Restatement of the Law 2d, Torts, Section 424
(1965). If the statutory duty to provide safeguards and precautions exists, a
“landlord who employs an independent contractor to perform a duty
which the landlord owes to his tenant to maintain the leased property
in [a] reasonably safe condition is subject to liability to the tenant, and
to third persons upon the leased premises with the consent of the
tenant, for physical harm caused by the contractor’s failure to exercise
reasonable care to make the leased property reasonably safe.”
Id., quoting Restatement of the Law 2d, Property, Section 19.1 (1977).
R.C. 5321.04 establishes the statutory duty as between a “landlord” of
a “residential premises” and its tenant, and as a result of that statutory duty, R.C.
5321.04 creates a nondelegable duty owed by the landlord to the tenant. Strayer,
68 Ohio St.2d at 36, 427 N.E.2d 781. Any landlord who contracts with an
independent contractor to make repairs to a property is subject to the same liability
to the tenant “for harm caused by the contractor’s negligence in making or
purporting to make the repairs as though the contractor’s conduct were that of the
landlord.” Id. at syllabus. Based on that black-letter law, Perko claims that because
Solon Pointe’s duty to maintain the premises was established by R.C. 5321.04, Solon
Pointe had a nondelegable duty to monitor the acts of the independent contractor
and the manner in which that floor maintenance was carried out.
There is an inherent flaw with that analysis. R.C. 5321.04 is not
applicable to Solon Pointe. R.C. 5321.04(A)(2)-(3) provides in pertinent part, that
“a landlord who is a party to a rental agreement shall * * * make all repairs and do
whatever is reasonably necessary to put and keep the premises in a fit and habitable
condition”; and shall “keep all common areas of the premises in a safe and sanitary
condition.” (Emphasis added.) Id. Under R.C. 5321.01(B), “landlord” is expressly
defined as the owner, lessor, or sublessor of a “residential premises,” but that
statutorily defined term specifically excludes from its definition any “homes licensed
pursuant to Chapter 3721 of the Revised Code.” R.C. 5321.01(C)(2).
In this case, Perko contends that Solon Pointe is an assisted-living
and skilled nursing center with Perko being entitled to the resident’s rights set forth
under R.C. 3721.13. Under R.C. 3721.13(A)(1), the “rights of residents of a home
shall include” a nonexhaustive, statutorily created list of rights, the specifics of which
are not pertinent to this discussion. (Emphasis added.) Id. What is pertinent is that
“home” is statutorily defined as
an institution, residence, or facility that provides, for a period of more
than twenty-four hours, whether for a consideration or not,
accommodations to three or more unrelated individuals who are
dependent upon the services of others, including a nursing home,
residential care facility, home for the aging, and a veterans’ home
operated under Chapter 5907. of the Revised Code.
R.C. 3721.01(A)(1)(a). R.C. 3721.13 is applicable to Perko only if Solon Pointe is a
“home” licensed under R.C. Chapter 3721. Because the parties do not disagree that
Perko is entitled to the resident’s rights set forth under R.C. 3721.13, it must be
concluded that Solon Pointe is not a “landlord” of a “residential premises” as
statutorily defined under R.C. 5321.01, and therefore, the duties established under
R.C. 5321.04 are not applicable to Solon Pointe. We, therefore, cannot apply the
statutory duties enumerated under R.C. 5321.04 as against Solon Pointe in order to
establish a nondelegable duty. R.C. 5321.04 does not create a statutory duty as owed
by Solon Pointe, an owner of a “home” licensed under R.C. Chapter 3721.2
In addition, R.C. 3721.13 does not establish statutory duties creating
a nondelegable duty separate from R.C. 5321.04. Under the statutory scheme
governing the resident’s rights, “in order for a plaintiff to recover compensatory
damages under R.C. 3721.17, the plaintiff must demonstrate that the violation of the
resident’s rights ‘resulted from a negligent act or omission of the person or home
and that the violation was the proximate cause of the resident’s injury [or] death.’”
R.C. 3721.17 provides residents of assisted-living or skilled nursing facilities, such as
Perko, with the right to initiate an action for compensatory damages stemming from
2
Perko also claims that an issue of fact exists as to whether Solon Pointe possessed actual
or constructive knowledge of HSG waxing the floor based on Solon Pointe’s nondelegable
duty to maintain the premises under R.C. 5321.04. In light of the inapplicability of R.C.
5321.04 to establish the duty, Perko’s actual or constructive notice argument is likewise
without merit.
violations of R.C. 3721.13. Altercare of Mayfield Village, Inc. v. Berner, 2017-Ohio-
958, 86 N.E.3d 649, ¶ 17 (8th Dist.). However, “because the statute itself requires
negligent conduct in order to recover compensatory damages, R.C. Chapter 3721
does not establish statutory duties[,]” such that the statutory scheme can give rise to
a nondelegable duty. Id. “[L]iability [under R.C. 3721.17] must be determined by
the application of the test of due care as exercised by a reasonably prudent person
under the circumstances of the case.” Id., citing Eisenhuth v. Moneyhon, 161 Ohio
St. 367, 370, 119 N.E.2d 440 (1954), at paragraph three of the syllabus, and
Zimmerman v. St. Peter’s Catholic Church, 87 Ohio App.3d 752, 762, 622 N.E.2d
1184 (2d Dist.1993). Thus, the default standard of care under R.C. 3721.17 is reliant
on general tort principles that do not impute the liability of an independent
contractor upon the employer.
We acknowledge that the parties failed to discuss the inapplicability
of R.C. Chapter 5321, and R.C. Chapter 3721 as alleged to apply against Solon Pointe.
Even if we presumed that the trial court failed to consider the inapplicability of R.C.
Chapter 5321 or the separate enforcement mechanism under R.C. 3721.17, however,
it is well settled that “‘an appellate court must affirm the judgment if it is legally
correct on other grounds, that is, it achieves the right result for the wrong reason,
because such an error is not prejudicial.’” O’Neal v. State, 2020-Ohio-506, 146
N.E.3d 605, ¶ 20 (10th Dist.), quoting Hassey v. Columbus, 2018-Ohio-3958, 111
N.E.3d 1253, ¶ 33, (10th Dist.), Joyce v. Gen. Motors Corp., 49 Ohio St.3d 93, 96,
551 N.E.2d 172 (1990), and Reynolds v. Budzik, 134 Ohio App.3d 844, 846, 732
N.E.2d 485 (6th Dist.1999), fn. 3. In this case, as a matter of law, neither R.C.
Chapter 5321 nor R.C. Chapter 3721 creates a statutory duty as between Solon Pointe
and Perko for the purposes of establishing a nondelegable duty to avoid application
of the general rule that the liability of an independent contractor is not imputed to
the employer. Appellate courts cannot render decisions by ignoring the law, nor
should we presume that the trial court overlooked pertinent legal definitions,
standards, or binding authority. Perko has not demonstrated that Solon Pointe owes
a nondelegable duty to its residents stemming from the duties established under
R.C. Chapter 5321 or R.C. Chapter 3721.3
In the alternative to the statutory duty, Perko claims that the act of
waxing the floor was inherently dangerous, and as a result, Solon Pointe has a
nondelegable duty to ensure the safety of others over the manner in which that
“inherently dangerous” work is performed.
“Work is inherently dangerous when it creates a peculiar risk of harm
to others unless special precautions are taken.” Pusey, 94 Ohio St.3d at 279, 2002-
Ohio-795, 762 N.E.2d 968, citing Covington & Cincinnati Bridge Co. v. Steinbrock
& Patrick, 61 Ohio St. 215, 55 N.E. 618 (1899), paragraph one of the syllabus, 2
Restatement of the Law 2d, Torts, Section 427, and Prosser & Keeton, The Law of
Torts, Section 71, 512-513 (5th Ed.1984). As the Ohio Supreme Court explained,
3
Our conclusion with respect to R.C. Chapter 3721 is limited to the arguments as
presented in this appeal. In this case, there is no allegation that the negligent conduct
goes beyond HSG’s failure to post signage or otherwise warn pedestrians of the slippery
surface caused by the ongoing waxing process.
however, the inherently dangerous exception is inapplicable in situations “where the
employer would reasonably have only a general anticipation of the possibility that
the contractor may be negligent in some way and thereby cause harm to a third
party.” Id. at 280. As an example of the inapplicability of the exception, the court
explained that “one who hires a trucker to transport his goods should realize that if
the truck is driven at an excessive speed, or with defective brakes, some harm to
persons on the highway is likely to occur.” Id. In that case, the act of driving the
truck is not considered “inherently dangerous.” Id.
In this case, Perko claims that the failure to warn of the slippery floor,
through either closing the community room or setting out “wet floor” signage, was
the cause of her injuries. Appellant’s brief p. 15 (“By failing to furnish warnings or
prevent access to a public space during a process that rendered the floor dangerously
slippery, the Defendants failed to meet their statutory duty.”). Perko’s situation falls
into the purview of the Ohio Supreme Court’s exemplar provided in Pusey. In this
case, as with the hiring of a trucker to transport goods who drives at excessive speeds
causing injury, the independent contractor’s failure to erect signage or close the
room in which the floor was being waxed is a negligent act that did not give rise to
the inherently dangerous exception to the delegable duty doctrine. In order for the
inherently dangerous work exception to apply, “the work must create a risk that is
not a normal, routine matter of customary human activity, such as driving an
automobile, but is rather a special danger to those in the vicinity arising out of the
particular situation created, and calling for special precautions.” Pusey at 280,
citing 2 Restatement of the Law 2d, Torts, at 385, Section 413, Comment b; Prosser
& Keeton, The Law of Torts, Section 71, 513-514 (5th Ed.1984).
The routine act of waxing a floor, although it creates a slippery surface
during the waxing process, is a “routine matter of customary human activity.” There
is no special danger associated with such a mundane task. See, e.g., Emrich v.
Grady Mem. Hosp., 5th Dist. Delaware No. 04CAE04030, 2004-Ohio-6753, ¶ 24
(the routine act of cleaning a linoleum floor is not an “inherently dangerous” task);
Sauter v. One Lytle Place, 1st Dist. Hamilton No. C-040266, 2005-Ohio-1183, ¶ 12
(the act of cleaning a floor falls under general tort principles, and negligence is
dependent on the landlord’s knowledge of the danger); McCumbers v. Yusa Corp.,
12th Dist. Fayette No. CA2006-05-018, 2006-Ohio-5847, ¶ 10 (the fact that a tile
floor can be made slippery does not support the conclusion that working in an
industrial kitchen gives rise to the inherently dangerous work exception); Stevens v.
Highland Cty. Bd. of Commrs., 4th Dist. Highland No. 04CA8, 2004-Ohio-4560,
¶ 27 (mopping floors is not inherently dangerous work).
In light of the fact that Solon Pointe delegated the floor-waxing
responsibilities to the independent contractor, Solon Pointe cannot be held liable for
the manner in which the floor-waxing process was completed because of the
inapplicability of the nondelegable duty doctrine. In this case, the liability of an
independent contractor is not imputed to the employer of the independent
contractor. Strayer, 68 Ohio St.2d at 34, 427 N.E.2d 781.
Perko has not demonstrated that Solon Pointe’s duty was
nondelegable, and as a result, Solon Pointe is entitled to summary judgment in its
favor upon all claims because liability against Solon Pointe cannot be based on the
negligent act of an independent contractor it hired to undertake the floor-waxing
responsibilities under general tort principles. In light of the fact that Perko was
unable to establish a statutory duty or a question of fact as to whether the process of
waxing flooring is inherently dangerous, we cannot find error with the trial court’s
conclusion. The decision of the trial court is affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_______________________________
SEAN C. GALLAGHER, PRESIDING JUDGE
EMANUELLA D. GROVES, J., CONCURS;
LISA B. FORBES., J., CONCURS IN JUDGMENT ONLY (WITH SEPARATE
OPINION)
LISA B. FORBES, J., CONCURRING IN JUDGMENT ONLY WITH SEPARATE
OPINION:
I agree with the majority that the trial court properly granted
summary judgment in favor of Solon Pointe. I write separately because, in light of
the record, I would decline to review this case under R.C. 3721.13. Specifically, I
disagree with the following analysis set forth in the majority opinion:
Because the parties do not disagree that Perko is entitled to the
resident’s rights set forth under R.C. 3721.13, it must be concluded that
Solon Pointe is not a “landlord” of a “residential premises” as
statutorily defined under R.C. 5321.01 and, therefore, the duties
established under R.C. 5321.04 are not applicable to Solon Pointe. We,
therefore, cannot apply the statutory duties enumerated under
R.C. 5321.04 as against Solon Pointe in order to establish a
nondelegable duty. R.C. 5321.04 does not create a statutory duty as
owed by Solon Pointe, an owner of a “home” licensed under
R.C. Chapter 3721.
Ante at ¶ 13.
First, I find no reference to any evidence in the record establishing
that Solon Pointe is “an owner of a ‘home’ licensed under R.C. Chapter 3721.”
Neither party addressed that issue in the briefing to this court.
Second, Perko’s complaint did not allege a violation of, claim a right
under, or even reference R.C. 3721.13. Perko first raised the statute in her brief in
opposition to summary judgment, asserting that she was entitled to the rights of a
resident of a “home” under R.C. 3721.13 and arguing that the statute “permits the
jury to consider whether [she] is entitled to punitive damages * * *.” Perko echoed
these sentiments on appeal. Furthermore, Perko specifically argued that Solon
Pointe is a residential landlord, she is Solon Point’s tenant, and the duty Solon
Pointe owes her emanates from R.C. 5321.04(A)(2)-(3).
Solon Pointe did not directly respond to Perko’s alluding to
R.C. 3721.13. Rather, Solon Pointe referenced R.C. 3721.13 three times in its
appellate brief. Twice, Solon Pointe noted that Perko did not assert a cause of action
under, or allege a violation of, R.C. 3721.13 in her complaint. The third reference to
R.C. 3721.13 in Solon Pointe’s brief was to reiterate Perko’s claim that she is entitled
to rights under R.C. 3721.13. Furthermore, Solon Pointe specifically argued that its
only duty derived from common law and the Landlord-Tenant Act, R.C. Chapter
5321.
Finally, the parties briefed extensively the duties imposed under the
Landlord-Tenant Act and whether Solon Pointe was liable for the actions of its
contractor. Specifically, the parties debated whether the duties delegated by Solon
Pointe to HSG to wax the floor in the Rainbow Room were nondelegable as duties
imposed by statute — R.C. 5321.04 — on Solon Pointe as landlord.
Perko’s complaint alleged one cause of action: ordinary negligence.
To succeed on her claim, Perko must show that Solon Pointe owed her a duty. Both
parties argued that under R.C. 5321.04(A)(3), a landlord owes a tenant the duty to
“[k]eep all common areas of the premises in a safe and sanitary condition * * *.”
Solon Pointe delegated the task of floor-waxing to an independent
contractor. Under common law and the facts of this case, the negligent acts of an
independent contractor cannot be imputed to the principal, and I would find that
Solon Pointe did not delegate a nondelegable duty.