McGuire v. Univ. of Akron ( 2011 )

[Cite as McGuire v. Univ. of Akron, 2011-Ohio-2733.]
Court of Claims of Ohio
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
SARA MCGUIRE
Plaintiff
v.
THE UNIVERSITY OF AKRON
Defendant
Case No. 2010-08900-AD
Deputy Clerk Daniel R. Borchert
MEMORANDUM DECISION
{¶ 1} Plaintiff, Sara McGuire, filed this action against defendant, University of
Akron (UA), contending she suffered personal injury as a proximate cause of negligence
on the part of UA personnel in maintaining a hazardous condition at the UA Guzzetta
Hall premises. Specifically, plaintiff noted she dislocated her left patella when she
twisted her knee while performing a dance combination exercise on the Guzzetta Hall
dance studio floor “during a class for the academic course Ballet VIII.” Plaintiff further
noted, “[t]he area of the floor of the dance studio in which the incident occurred was
more slippery than usual.” According to plaintiff, the slippery floor “was a faulty
condition recognized by both instructors and students.” Plaintiff recalled the described
injury incident occurred on October 8, 2009 at approximately 11:40 a.m. In her
complaint, plaintiff requested damages in the amount of $1,114.15, her stated out-of-
pocket medical expense she has incurred after collateral source recovery. The filing fee
was paid.
{¶ 2} With her complaint plaintiff attached two witness statements from
classmates, Brianne Henney and Laura E. Wenzel, who were present when plaintiff’s
injury incident occurred. Henney explained, “[a]bout halfway through (the ballet) class
we were working on our pirouette (turning) combination (and) [m]any of the girls in the
class were having difficulty with the combination due to the extremely slippery floor
condition.” Henney further explained plaintiff was injured while attempting the pirouette
maneuver when her “foot (slid) out from underneath of her, and she fell to the floor,
twisting her knee on the way down.” Wenzel recalled she and plaintiff were in the same
group during class and she “was right behind Sara doing the same combination when
she fell.” Wenzel related she observed plaintiff unable to “quite catch her balance after
a turn (and) not being able to put her foot down when her left leg slipped from
underneath her.” According to Wenzel, the dance studio floor “was extra slippery more
than ususal” at the time of plaintiff’s personal injury incident. Wenzel advised, “[a]lmost
everyday we resort to rubbing our slippers in water to grip the floor better during turns
and combinations across the floor.”
{¶ 3} Defendant acknowledged plaintiff was enrolled in an advanced Ballet
course conducted at UA Guzzetta Hall dance studio. Defendant denied any liability in
this matter asserting plaintiff has failed to offer any evidence to establish any injury she
may have suffered in class was proximately caused by any negligence on the part of UA
personnel in maintaining the dance studio floors at Guzzetta Hall. Defendant advised,
“[t]he floors in the Guzzetta Hall dance studios become somewhat slippery at times as
the humidity conditions change.” Defendant further advised the floors at the seven
dance studios in Guzzetta Hall “are treated and maintained in a similar fashion and are
on a regular maintenance schedule” pursuant to the instructions of the installer,
Williams Hardwood Flooring. Defendant pointed out Williams Hardwood Flooring was
consulted in regard to the dance studio floors becoming slippery and a plan was then
produced to strip and treat the floors. According to defendant, “[t]he floor in Studio 194
was stripped and tested pursuant to the instructions of Williams Hardwood Flooring on
September 22 and September 23, 2009 by UA’s Physical Facilities Department at UA.”
Defendant noted UA staff subsequently stripped and cleaned the remaining six dance
studio floors on September 26, 2009 when it was determined the process on Studio 194
made the floors less slippery. Defendant denied plaintiff’s injury was the result of any
breach of a duty of care owed to her for her safety.
{¶ 4} In addition to the referenced floor treatment conducted before plaintiff’s
injury occurrence, defendant provided further measures to protect dance students from
problems related to a slippery dance studio floor. Defendant indicated boxes of rosin
were provided in each dance studio at Guzzetta Hall and “dance students were aware
that they could use the rosin on the ballet/Pointe shoes if they felt that the dance floor
surfaces were too slippery.” Defendant argued the dance floor in Studio 193 where
plaintiff’s injury occurred was maintained in a reasonably safe condition and plaintiff was
not exposed to any hazard unknown to her when executing dance maneuvers in class.
Defendant advised plaintiff is an experienced dancer who had already completed a
Ballet VI course before taking a Ballet VII course during the fall semester of 2009.
Furthermore, defendant related plaintiff “was enrolled and completed a Ballet VII course
in the 2009 fall semester, which is an advanced Ballet course in the College of Creative
& Professional Arts.” Defendant suggested plaintiff, with her experience dancing in
Studio 193, should have taken precaution to avoid any known slippery floor area.
{¶ 5} Plaintiff filed a response asserting that the studio floor area where her
knee injury occurred was still slippery on October 8, 2009 despite the efforts of UA
personnel to strip and clean the floor on September 26, 2009. Plaintiff noted her
classmates “were avoiding one area on the floor the day that (she) fell.” Plaintiff
insisted “there was a section of the floor that was not safe to be dancing on.” Plaintiff
explained she was wearing “leather ballet technique shoes” at the time of her injury and
therefore could not use the rosin available “to increase friction” with the dance floor,
because “rosin is not used on technique shoes.” Plaintiff contended she “fell performing
an advanced combination under the specific direction of the UA instructor,” identified as
Andy Caroll. Defendant did not provide any statement from Andy Caroll regarding the
incident forming the basis of this claim. Plaintiff denied having any choice to avoid
dancing on the floor area she described as “particularly slippery.” Plaintiff recalled, “all
the students were avoiding that area.” Plaintiff further recalled, “the instructor gave
directions for a group of dancers to traverse the floor doing a particular combination,
Sara (in that group) ended up having to do a double pirouette on that slippery section of
the dance floor.” Plaintiff maintained, “she was directed (by her instructor) to dance on
an area of the floor that everyone was avoiding.” Plaintiff again submitted the written
statements from her classmates, Laura E. Wenzel and Brianne Henney. Neither
Wenzel nor Henney stated the UA instructor, Andy Caroll directed plaintiff or any other
student to dance on a known slippery floor area. Defendant neither admitted nor denied
plaintiff was directed by Andy Caroll to perform a dance combination on a dance studio
floor area that was known to be slippery and consequently, constituting a dangerous
condition. Plaintiff insisted she was directed by her instructor to perform a dance
combination on a floor area that was known to be “particularly slippery.” Defendant did
not rebut this contention.
{¶ 6} Plaintiff’s cause of action is grounded in negligence. As defendant pointed
out, plaintiff, in order to prevail must establish: 1) a duty on the part of defendant to
protect her from injury; 2) a breach of that duty; and 3) injury proximately resulting from
the breach. Huston v. Konieczny (1990), 52 Ohio St. 3d 214, 214, 556 N.E. 2d 505;
Jeffers v. Olexo (1989), 43 Ohio St. 3d 140, 142, 539 N.E. 2d 614; Thomas v. Parma
(1993), 88 Ohio App. 3d 523, 527, 624 N.E. 2d 337; Parsons v. Lawton Co. (1989), 57
Ohio App. 3d 49, 50, 566 N.E. 2d 698.
{¶ 7} Based on plaintiff’s status as a student in a classroom setting, plaintiff was
classified as an invitee and defendant owed her a duty to exercise reasonable care in
keeping the premises in a safe condition and warning her of any latent or concealed
dangers which defendant had knowledge. Perry v. Eastgreen Realty Company (1978),
53 Ohio St. 2d 51, 52-53, 7 O.O. 3d 130, 372 N.E. 2d 335; Presley v. Norwood (1973),
36 Ohio St. 2d 29, 31, 65 O.O. 2d 129, 303 N.E. 2d 81; Sweet v. Clare-Mar Camp, Inc.
(1987), 38 Ohio App. 3d 6, 9, 526 N.E. 2d 74. However, a property owner is generally
under no duty to protect an invitee plaintiff from hazards which are so obvious and
apparent that the plaintiff is reasonably expected to discover and protect against them
herself. Sidle v. Humphrey (1968), 13 Ohio St. 2d 45, 42 O.O. 2d 96, 233 N.E. 2d 589,
at paragraph one of the syllabus; Paschal v. Rite Aid Pharmacy (1985), 18 Ohio St. 3d
45, 18 OBR 267, 480 N.D. 2d 474.
{¶ 8} An unreasonably dangerous condition does not exist in situations where
persons who are likely to encounter a condition may be expected to take good care of
themselves without exercising any further precautions. Baldauf v. Kent State Univ.
(1988), 49 Ohio App. 3d 46, 48, 550 N.E. 2d 517. Although evidence has shown the
floor area where plaintiff slipped was known to students and instructors alike, plaintiff
has stated she was directed by her instructor to dance on that particular area of the
studio floor that was known to constitute a slippery condition.
{¶ 9} Defendant, in the instant claim, contended plaintiff, by voluntarily engaging
in the dance exercise, was aware of the potential for injury and consequently, assumed
the risk for any foreseeable injury that may have arisen from her dance activity.
“Ordinarily, assumption of the risk is a question of fact to be resolved by the factfinder.”
Carrel v. Allied Products Corp. (1997), 78 Ohio St. 3d 284, 289, 677 N.E. 2d 795.
Assumption of the risk bears three elements: 1) one must have full knowledge of a
condition; 2) such condition must be patently dangerous to her; and 3) she must
voluntarily expose herself to the hazardous condition. Briere v. Lathrop Co. (1970), 22
Ohio St. 2d 166, 174-175, 258 N.E. 2d 597. While the defense of assumption of the
risk, where applicable, is no longer a complete bar to recovery, primary assumption of
the risk does act as complete bar to recovery since defendant owes no duty to a plaintiff
injured during involvement in an obviously dangerous activity. Anderson v. Ceccardi
(1983), 6 Ohio St. 3d 110,114, 451 N.E. 2d 780. Under the facts of the present claim,
the trier of fact finds the defense of assumption of the risk is inapplicable, considering
plaintiff has stated she did not voluntarily expose herself to the hazardous condition
created by the slippery dance floor, but rather was directed to dance in that hazardous
area by her instructor.
{¶ 10} “The mere fact that plaintiff fell does not establish any negligence on the
part of defendant. Green v. Castronova (1966), 9 Ohio App. 2d 156, 161, 38 O.O. 2d
176, 223 N.E. 2d 641; Kimbro v. Konni’s Supermarket, Inc. (June 27, 1996), 8th Dist.
No. 69666, unreported; Costidakis v. Park Corporation (Sept. 1, 1994), 8th Dist. No.
66167, unreported. It is incumbent upon a plaintiff to show under certain circumstances
that there was a dangerous or latent condition on the premises that was the cause of
the fall. Paschal, supra.” Orens v. Ricardo’s Restaurant (November 14, 1996), 8th Dist.
No. 70403. As has been mentioned, a premises owner ordinarily owes no duty to
protect invitees, such as plaintiff, from dangerous conditions that are open and obvious.
Sidle. Furthermore, a property owner has no duty to inform an invitee about open and
obvious dangers on the property. “[T]he open and obvious nature of the hazard itself
serves as a warning.” Simmers v. Bentley Constr. Co. (1992), 64 Ohio St. 3d 642,
1992-Ohio-42, 597 N.E. 2d 504. “This determination of the existence and obviousness
of a danger alleged to exist on a premises requires a review of the facts of a particular
case.” Miller v. Beer Barrel Saloon (May 24, 1991), 6th Dist. No. 90-OT-050,
unreported. The open and obvious no duty rule does not apply if attendant
circumstances prevent an invitee from discovery of the otherwise open and obvious
danger. Zuzan v. Shutrump, 155 Ohio App. 3d 589, 2003-Ohio-7285, at ¶15. The
attendant circumstances exception applies if something beyond the plaintiff’s control
contributes to the fall-other than, or in addition to, the open and obvious condition.
Backus v. Giant Eagle, Inc. (1996), 115 Ohio App. 3d 155, 158, 684 N.E. 2d 1273. In
Barrett v. Enterprise Rent-A-Car Co., 2004-Ohio-4646, the Tenth District Court of
Appeals found that “attendant circumstances” can include any distraction that would
come upon a pedestrian in the same circumstances and reduce the degree of care an
ordinary person would exercise at the time. “The attendant circumstances must, taken
together, divert the attention of the pedestrian, significantly enhance the danger of the
defect, and contribute to the fall. * * * Both circumstances contributing to and those
reducing the risk of the defect must be considered.” at ¶14, quoting McGuire v. Sears,
Roebuck & Co. (1996), 118 Ohio App. 3d 494, 499, 693 N.E. 2d 807.
{¶ 11} Plaintiff, in the instant claim, stated she was directed by her classroom
instructor to perform a difficult dance combination on a floor area known to be
“particularly slippery.” Defendant did not rebut this assertion. Under the evidence
presented, the trier of fact finds the attendant circumstances exception applies in this
claim considering plaintiff’s attention to the danger was diverted by following instructions
given Consequently, plaintiff has provided sufficient proof to establish her claim of
negligence.
{¶ 12} The credibility of witnesses and the weight attributable to their testimony
are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230,
39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of the syllabus. The court is free to
believe or disbelieve, all or any part of each witness’s testimony. State v. Antill (1964),
176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548. In the instant action, the trier of fact
finds that the statements of plaintiff are persuasive concerning the assertion she was
injured when directed by her instructor to maneuver in an area of the dance studio that
was hazardous. Defendant is liable to plaintiff for the damages claim $1,114.15, plus
the $25.00 filing fee which may be reimbursed as compensable costs pursuant to R.C.
2335.19. See Bailey v. Ohio Department of Rehabilitation and Correction (1990), 62
Ohio Misc. 2d 19, 587 N.E. 2d 990.
Court of Claims of Ohio
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
SARA MCGUIRE
Plaintiff
v.
THE UNIVERSITY OF AKRON
Defendant
Case No. 2010-08900-AD
Deputy Clerk Daniel R. Borchert
ENTRY OF ADMINISTRATIVE
DETERMINATION
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 plaintiff in the amount of $1,139.15, which includes the filing fee. Court costs are
assessed against defendant.
DANIEL R. BORCHERT
Deputy Clerk
Entry cc:
Sara McGuire M. Celeste Cook
152 W. Grayling Drive Associate Vice President and
Fairlawn, Ohio 44333 Assistant General Counsel
302 Buchtel Mall
Akron, Ohio 44325-4706
RDK/laa
2/1
Filed 3/9/11
Sent to S.C. reporter 5/27/11