Goodman v. Orlando Baking Co. , 2012 Ohio 1356 ( 2012 )

[Cite as Goodman v. Orlando Baking Co., 2012-Ohio-1356.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97170
MARK J. GOODMAN
PLAINTIFF-APPELLANT
vs.
THE ORLANDO BAKING CO., ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-732235
BEFORE: S. Gallagher, J., Boyle, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: March 29, 2012
ATTORNEYS FOR APPELLANT
Jonathan M. Ashton
Kevin J. Boissoneault
Gallon, Takacs, Boissoneault & Schaffer Co., LPA
3516 Granite Circle
Toledo, OH 43617
ATTORNEYS FOR APPELLEES
For Orlando Baking Company
Sean Allan
Allan & Gallagher, LLP
1300 The Rockefeller Building
614 West Superior Avenue
Cleveland, OH 44113
For A&L Compaction Equipment Co., LLC
Dawn E. Snyder
Brian T. Winchester
McNeal, Schick, Archibald & Biro Co.
Van Sweringen Arcade, Suite 250
123 West Prospect Avenue
Cleveland, OH 44115
SEAN C. GALLAGHER, J.:
{¶1} Appellant, Mark J. Goodman, appeals the judgment of the Cuyahoga
County Court of Common Pleas that granted summary judgment in favor of appellees,
Orlando Baking Company (“Orlando”) and A&L Compaction Equipment Co., LLC
(“A&L”). For the reasons stated herein, we affirm.
{¶2} On July 21, 2010, Goodman filed a complaint against Orlando and A&L.1
Goodman asserted claims for negligence arising from a knee injury he sustained on July
25, 2008. The injury occurred when he slipped on bakery waste while attempting to
service a waste dumper and compactor unit (“dumper”) at Orlando’s facility in Cleveland.
{¶3} At the time of the incident, Goodman worked for Endres Processing, LLC
(“Endres”), as a maintenance technician. The dumper being serviced was owned by
Endres. Endres provides waste compactors and dumper units to bakeries in exchange for
bakery waste. Endres would pick up the compactors and process the bakery waste into
livestock feed.
{¶4} Orlando had three compactors and one dumper located at its facility. All
servicing on the compactors and dumper unit was performed by Endres or a contractor
1
The complaint named as defendants the following: The Orlando Baking Company, The
Orlando Baking Company of Columbus, Inc., A&L Compaction Co., LLC, A&L Compaction
Equipment Company, and John Doe numbers one through five. The Orlando defendants were
treated and represented collectively as were the A&L defendants. Also, A&L indicates in its brief
that it was improperly named in the complaint.
sent on its behalf. It was the responsibility of the sanitation department at Orlando to
clean the dumper and the floor around it of any food waste.
{¶5} On or about July 14, 2008, Orlando was experiencing problems with its
dumper. Richard Johnson, a service technician for A&L, repaired the dumper by
welding a cracked bearing. Johnson indicated that the area was clean when he performed
this repair. Endres was then billed by A&L for the service call. Johnson also testified
that in his experience with working around bakery product, the nature of the product is
slippery.
{¶6} Over a week later, on July 25, 2008, Goodman was dispatched by Endres to
perform service work on the dumper at Orlando during normal business hours. Upon his
arrival, Goodman proceeded through a “guard shack” and went to the dumper, which is
located outside the bakery facility. He observed that the area around the dumper was a
“big mess.” He stated in his deposition that “[there was bread dough everywhere. The
dumper was broke. Everything * * * was covered with bread dough, slippery, slimy. I
had never seen it that bad.” He also indicated that Orlando normally was pretty good
about keeping the area clean, though it would not be unusual to have some dough around
the machine.
{¶7} The dough was comprised of water, flour, yeast, salt, and sometimes oil.
Goodman acknowledged that it was July and that dough rises when it sits in hot
temperatures. He further indicated his knowledge that when bakery dough sits, “it’s
crusty on top, but you think you’re okay, and you step on it, you don’t know if there’s oil
underneath it.” However, he was aware that bakery dough could be slippery and, as he
indicated, “you’re always walking on edge. You’re used to it.”
{¶8} Goodman did not attempt to clean up the mess or request assistance from
Orlando’s sanitation department. Instead, he locked and tagged the dumper and
proceeded to inspect it. While crawling over the power unit, Goodman’s foot slipped
and got caught, and his knee was injured. He proceeded to put new bearings on the
machine and completed the repair work.
{¶9} After Goodman filed this lawsuit, Orlando and A&L filed motions for
summary judgment. The trial court granted the motions without opinion. This appeal
followed.
{¶10} Goodman raises two assignments of error for our review. His first
assignment of error challenges the grant of summary judgment to Orlando.
{¶11} Appellate review of summary judgment is de novo, governed by the
standard set forth in Civ.R. 56. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559,
833 N.E.2d 712, ¶ 8. Accordingly, we afford no deference to the trial court’s decision
and independently review the record to determine whether summary judgment is
appropriate. Hollins v. Shaffer, 182 Ohio App.3d 282, 2009-Ohio-2136, 912 N.E.2d
637, ¶ 12 (8th Dist.). Under Civ.R. 56(C), summary judgment is proper when the
moving party establishes that
(1) no genuine issue of any material fact remains, (2) the moving
party is entitled to judgment as a matter of law, and (3) it appears from the
evidence that reasonable minds can come to but one conclusion, and
construing the evidence most strongly in favor of the nonmoving party, that
conclusion is adverse to the party against whom the motion for summary
judgment is made. State ex rel. Duncan v. Mentor City Council, 105 Ohio
St.3d 372, 2005-Ohio-2163, 826 N.E.2d 832, ¶ 9, citing Temple v. Wean
United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).
{¶12} R.C. 4101.11, the “frequenter statute,” sets forth the duty of an employer to
protect employees and frequenters, and provides in pertinent part as follows:
Every employer shall furnish employment which is safe for the
employees engaged therein, shall furnish a place of employment which shall
be safe for the employees therein and for frequenters thereof * * * and shall
do every other thing reasonably necessary to protect the life, health, safety,
and welfare of such employees and frequenters.
{¶13} Additionally, R.C. 4101.12 sets forth the duty of an employer to furnish a
safe place of employment, and provides in pertinent part as follows:
No employer shall require, permit, or suffer any employee to go or
be in any employment or place of employment which is not safe * * *. No
employer shall fail to do every other thing reasonably necessary to protect
the life, health, safety, and welfare of such employees or frequenters. No
such employer or other person shall construct, occupy, or maintain any
place of employment that is not safe.
{¶14} It is undisputed that Goodman was a frequenter at Orlando. The duty owed
to a frequenter is akin to that of the common-law duty owed to an invitee:
The duty owed to frequenters, i.e., including employees of other
companies, is no more than a codification of the common-law duty owed by
an owner or occupier of premises to invitees, requiring that the premises be
kept in a reasonably safe condition, and that warning be given of dangers of
which he has knowledge. Eicher v. United States Steel Corp., 32 Ohio
St.3d 248, 249, 512 N.E.2d 1165 (1987).
{¶15} At common law, a property owner has no duty to protect business invitees
from dangers that are known to the invitee or are so obvious and apparent to the invitee
that he may reasonably be expected to discover them and take appropriate measures to
protect against them. Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 480
N.E.2d 474 (1985). The rationale behind the “open and obvious” doctrine is that the
open and obvious nature of the hazard itself serves as a warning. Armstrong v. Best Buy
Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 5. “The fact that a
plaintiff was unreasonable in choosing to encounter the danger is not what relieves the
property owner of liability. Rather, it is the fact that the condition itself is so obvious
that it absolves the property owner from taking any further action to protect the plaintiff.”
Id. at ¶ 13. When applicable, “the open and obvious doctrine obviates the duty to warn
and acts as a complete bar to any negligence claims.” Id. at ¶ 5.
{¶16} Goodman argues that the open and obvious doctrine applies only to static
conditions and does not apply in cases involving active negligence. As explained by one
court:
Premises tort claims where the alleged negligence arises from static
or passive conditions, such as preexisting latent defects, are legally distinct
from claims averring active negligence by act or omission. * * * The
distinction between static and dynamic forms of negligence is legally
significant, because it directly correlates to the two separate and distinct
duties an occupier owes its business invitees: (1) static conditions relate to
the owner’s duty to maintain its premises in a reasonably safe condition,
including an obligation to warn its invitees of latent or hidden dangers,
while (2) active negligence relates to the owner’s duty not to injure its
invitees by negligent activities conducted on the premises. Simmons v. Am.
Pacific Ents., L.L.C., 164 Ohio App.3d 763, 2005-Ohio-6957, 843 N.E.2d
1271, ¶ 20 (10th Dist.).
{¶17} Regardless of the original nature of the condition, it has been recognized
that a condition may become static through a lapse of time. Id. at ¶ 22; Sherlock v. Shelly
Co., 10th Dist. No. 06AP-1303, 2007-Ohio-4522, ¶ 17-18; Routzahn v. Garrison, 2d Dist.
No. 21190, 2006-Ohio-3652, ¶ 25.
{¶18} In the present case, there is no evidence to suggest that the conduct of
Orlando actively created or changed the condition while Goodman was at the facility. In
fact, the record reflects that no Orlando employees were present while Goodman was
working on the dumper. Goodman estimated that he had been there for approximately
one hour to one and one-half hours before the accident occurred. Thus, the bakery waste
surrounding the dumper was a static condition and the open and obvious doctrine applies.
{¶19} Goodman further argues that he had no choice but to traverse the bakery
waste in order to do his job. In support of his argument, he cites the case of Mizenis v.
Sands Motel, Inc., 50 Ohio App.2d 226, 362 N.E.2d 661 (6th Dist.1975). In Mizenis, the
court held that a hotel guest did not voluntarily assume the risk of navigating a stairway
with melted snow and ice when he had unsuccessfully asked the motel manager to remedy
the condition and the stairway was the only means to exit the premises. Id. at 230-232.
Under these limited circumstances, in which no viable alternative was available, the court
found the invitee could not reasonably be expected to protect himself against the danger.
Id. at 230. Mizenis has been distinguished in cases in which the defendant is not faced
with forced circumstances or fails to show no reasonable alternatives were available. See
Al-Sorghali v. Modene & Assoc., Inc., 6th Dist. No. L-06-1156, 2006-Ohio-4911, ¶
19-20; Jeffries v. U.S., N.D.Ohio No. 3:09CV00430, 2010 WL 1258008 (Mar. 30, 2010).
{¶20} Unlike the defendant in Mizenis, Goodman was not trapped inside a
premises and he never sought assistance from Orlando in cleaning up the dangerous
condition. Goodman conceded this alternative would have been a better course of action.
Further, Goodman could have chosen not to perform repair work on the dumper until the
area was cleaned. See Routzahn, 2d Dist. No. 21190, 2006-Ohio-3652, ¶ 55-56
(recognizing that an independent contractor has a right to choose the manner in which the
work will be performed). Thus, Goodman was not faced with forced circumstances and
there were reasonable alternatives available. Under these facts, reasonable minds could
only conclude that Goodman voluntarily chose to encounter an open and obvious danger
when he traversed the bakery waste.
{¶21} Goodman also asserts that bakery waste is not necessarily slippery and he
could not see beneath it. However, the record reflects that the bakery waste was clearly
observable and Goodman was fully aware of its presence. Indeed, he described it as “a
big mess” and described the dough as “slippery, slimy.” Goodman was an experienced
technician and had worked around bakery waste for a number of years. He was fully
aware that the substance could be slippery. Because the nature of the condition was open
and obvious, Goodman had a duty to protect himself against the associated dangers. See
Brown v. Whirlpool Corp., 3d Dist. No. 9-04-12, 2004-Ohio-5101, ¶ 13-15 (applying
open and obvious doctrine to a frequenter who was aware of oil-like substance on the
floor near a compactor unit); Basar v. Steel Serv. Plus, 8th Dist. No. 77091, 2000 WL
502875 (Apr. 27, 2000) (applying open and obvious doctrine to a frequenter who worked
on scaffolding with knowledge that the floor was covered with “junk”).
{¶22} Because the bakery waste was an open and obvious condition as a matter of
law, the trial court properly granted summary judgment to Orlando. Accordingly, we
overrule Goodman’s first assignment of error.2
{¶23} Goodman’s second assignment of error challenges the grant of summary
judgment to A&L. Goodman argues that by welding the bearings rather than replacing
them, A&L failed to properly repair the dumper and that this failure was a direct and
proximate cause of the circumstances that led to his injury. He further asserts that A&L
owed him a duty because his claims were foreseeable.
2
We need not address the duty owed to an independent contractor
performing inherently dangerous work.
{¶24} In order to establish a negligence claim, a plaintiff must prove three
elements: (1) a legal duty on the part of the defendant; (2) the defendant’s breach of that
duty; and (3) an injury that is the proximate cause of that breach. Wallace v. Ohio Dept.
of Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d 1018, ¶ 22. The
existence of a duty depends upon the forseeability of the injury. Id. at ¶ 23. A duty is
established when a reasonably prudent person would have anticipated that an injury was
likely to result from a particular act. Id. Thus, “[o]nce the independent contractor has
completed a project on property, the contractor’s duty is set with respect to all who may
be foreseeably injured due to the contractor’s negligence.” Torchik v. Boyce, 121 Ohio
St.3d 440, 2009-Ohio-1248, 905 N.E.2d 179, ¶ 14.
{¶25} In this case, Johnson performed repair work on the dumper more than a
week before Goodman was called to make a subsequent repair. Johnson testified that the
area was clean when he serviced the dumper. He repaired the machine by welding a
cracked bearing, which he testified was on the other side of the machine from where
Goodman’s fall occurred. Goodman testified that it is very hard to weld a bearing and
get it to hold. However, he did not have any documentation or information to indicate
that the work performed by A&L was not suitable. He further testified that the cause of
his fall was “[s]lipping off of the tank on wet bakery dough that was piled up over it * *
*.”
{¶26} In this case, there was simply a lack of evidence to establish A&L’s
negligence or the foreseeability of Goodman’s injury. There was insufficient evidence to
show that A&L failed to properly repair the machine. While Goodman suggests that
replacing the bearing is the better course of action, there was a lack of evidence to show
that welding a bearing is not an acceptable method of repair or that Johnson failed to
exercise reasonable care in performing the repair work. Further, it was not foreseeable
that someone would be injured in the course of subsequent repair work by proceeding to
work around a machine that was covered in bakery waste. Therefore, we find the trial
court properly granted summary judgment to A&L.3
{¶27} Judgment 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, JUDGE
MARY J. BOYLE, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
3
We express no opinion on the assumption-of-risk issue.