Smith v. Frederick C. Smith Clinic

[Cite as Smith v. Frederick C. Smith Clinic, 189 Ohio App.3d 473, 2010-Ohio-4548.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
SMITH, EXR., CASE NO. 9-09-50
APPELLANT,
v.
FREDERICK C. SMITH OPINION
CLINIC ET AL.,
APPELLEES.
Appeal from Marion County Common Pleas Court
Trial Court No. 08 CV 0124
Judgment Reversed and Cause Remanded
Date of Decision: September 27, 2010
APPEARANCES:
Robert E. Wilson, for appellant.
James P. Myers, for appellees.
SHAW, Judge.
Case No. 9-09-50
{¶ 1} Plaintiff-appellant, Randy Smith, executor of the estate of Martha
Smith, deceased, appeals the judgment of the Common Pleas Court of Marion
County, Ohio, granting summary judgment in favor of defendants-appellees, The
Frederick C. Smith Clinic and Clinic Investment L.L.C. (“the clinic”) and
dismissing his complaint against them.
{¶ 2} On April 20, 2004, Martha was entering the clinic, aided by the use
of a cane, when she was knocked down by the automatic sliding doors at the main
entrance while in the threshold of the doors. Gayle Hayman, who had witnessed
the incident, waited with Martha until employees of the clinic arrived and placed
Martha on a stretcher and removed her from the scene. As a result of this incident,
Martha suffered a broken elbow.
{¶ 3} Martha filed a complaint in the Marion County Common Pleas Court
on March 7, 2006, against the clinic and “John Doe No. 1 Corporation and John
Doe No. 2 Individual” for the injuries she sustained from the accident. On June 15,
2005, Martha died from causes unrelated to the injuries she sustained in this
matter, and, on July 15, 2005, her son, Randy, was appointed executor of her
estate.
{¶ 4} On February 15, 2007, the complaint was voluntarily dismissed
pursuant to Civ.R. 41(A)(2). On February 8, 2008, Randy, as executor, refiled the
complaint against the clinic and The Stanley Works, Stanley Access Technologies,
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and Stanley Magic-Door, Inc. (“Stanley”), the manufacturer and provider of
preventative maintenance for the doors by contract.
{¶ 5} On February 25, 2008, and April 7, 2008, respectively, the clinic and
Stanley filed their answers. Thereafter, on June 20, 2008, and July 24, 2008,
respectively, the clinic and Stanley filed motions for summary judgment. On
February 10, 2009, Randy filed a response to the clinic’s motion, but on February
12, 2009, Randy voluntarily dismissed Stanley. On February 27, 2009, the clinic
filed a reply and memorandum in support of its motion for summary judgment.
{¶ 6} On October 16, 2009, the trial court granted the clinic’s motion for
summary judgment, finding that the automatic sliding doors were an open and
obvious danger for which the clinic owed no duty to warn Martha. On November
12, 2009, the trial court filed a journal entry dismissing the action with prejudice.
{¶ 7} This appeal followed, and Randy now asserts two assignments of
error.
ASSIGNMENT OF ERROR I
The trial court failed to apply the doctrine of res ipsa loquitur
to the premature closing of the automatic sliding glass doors which
caused injury to the plaintiff which would defeat defendants’ motion
for summary judgment.
ASSIGNMENT OF ERROR II
There is a question of fact of whether a business owner is
negligent when the owner of the business has previously been
advised that its automatic sliding glass doors prematurely closed on
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a business invitee and fails to remedy that hazard which causes an
injury to a subsequent business invitee.
{¶ 8} For ease of discussion, we elect to address these assignments of error
out of the order in which they appear.
Second Assignment of Error
{¶ 9} In Randy’s second assignment of error, he contends that the trial
court erred in granting summary judgment in favor of the clinic because there was
a genuine issue of material fact as to whether the clinic breached the duty of care it
owed to Martha based upon its failure to provide a warning about not stopping on
the threshold, its creation of the hazard, and its failure to remedy the hazard after it
existed for 19 months.
{¶ 10} An appellate court reviews a grant of summary judgment de novo,
without any deference to the trial court. Conley-Slowinski v. Superior Spinning &
Stamping Co. (1998), 128 Ohio App.3d 360, 363, 714 N.E.2d 991; see also
Hasenfratz v. Warnement, 3d Dist. No. 1-06-03, 2006-Ohio-2797, citing Lorain
Natl. Bank v. Saratoga Apts. (1989), 61 Ohio App.3d 127, 572 N.E.2d 198. A
grant of summary judgment will be affirmed only when the requirements of Civ.R.
56(C) are met. Summary judgment requires the moving party to establish the
following:
[W]hen, looking at the evidence as a whole, (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) it appears from the
evidence, construed most strongly in favor of the nonmoving party,
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that reasonable minds could only conclude in favor of the moving
party.
Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196,
paragraph three of the syllabus. See also Civ.R. 56(C).
{¶ 11} The party moving for summary judgment bears the initial burden of
identifying the basis for its motion in order to allow the opposing party a
“meaningful opportunity to respond.” Mitseff v. Wheeler (1988), 38 Ohio St.3d
112, 526 N.E.2d 798, syllabus. The moving party also bears the burden of
demonstrating the absence of a genuine issue of material fact as to an essential
element of the case. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292, 662 N.E.2d
264. Once the moving party demonstrates that he is entitled to summary
judgment, the burden shifts to the nonmoving party to produce evidence on any
issue about which that party bears the burden of production at trial. See Civ.R.
56(E).
{¶ 12} In ruling on a summary-judgment motion, a court is not permitted to
weigh evidence or choose among reasonable inferences; rather, the court must
evaluate evidence, taking all permissible inferences and resolving questions of
credibility in favor of the nonmoving party. Jacobs v. Racevskis (1995), 105 Ohio
App.3d 1, 7, 663 N.E.2d 653. Additionally, Civ.R.56(C) mandates that summary
judgment shall be rendered if the pleadings, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence, and written
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stipulations of fact show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.
{¶ 13} To prevail in a negligence action, a plaintiff must demonstrate that
(1) the defendant owed a duty of care to the plaintiff, (2) the defendant breached
that duty, and (3) the defendant’s breach proximately caused the plaintiff to be
injured. (Citations omitted.) Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120,
2009-Ohio-2495, 909 N.E.2d 120, at ¶ 10. The applicable duty is determined by
the relationship between the landowner and the plaintiff when the alleged
negligence occurs in a premises-liability context. Id., citing Gladon v. Greater
Cleveland Regional Transit Auth. (1996), 75 Ohio St.3d 312, 315, 662 N.E.2d
287. Here, the parties do not dispute that Martha was a business invitee of the
clinic.
{¶ 14} “A shopkeeper ordinarily owes its business 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 v. Best Buy
Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, at ¶ 5, citing
Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203, 480 N.E.2d 474;
Jackson v. Kings Island (1979), 58 Ohio St.2d 357, 390 N.E.2d 810. In a
premises-liability action, the plaintiff can prove the defendant’s breach of duty if
any one of three conditions is satisfied:
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[T]he defendant, through its officers or employees, was
responsible for the hazard complained of; (2) at least one of such
persons had actual knowledge of the hazard and neglected to give
adequate notice of its presence or to remove it promptly; or (3) such
danger existed for a sufficient length of time reasonably to justify the
inference that the failure to warn against it or remove it was
attributable to a want of ordinary care.
Gouhin v. Giant Eagle, 10th Dist. No. 07AP-548, 2008-Ohio-766, at ¶ 8, citing
Sharp v. Anderson’s, Inc., 10th Dist. No. 06AP81, 2006-Ohio-4075, at ¶ 7, citing
Johnson v. Wagner Provision Co. (1943), 141 Ohio St. 584, 589, 49 N.E.2d 925.
Further, “[w]hen it is shown that the owner had superior knowledge of the
particular danger which caused the injury, liability attaches because, in such a
case, invitees may not reasonably be expected to protect themselves from a risk
they cannot fully appreciate.” Hairston v. Gary K. Corp., 8th Dist. No. 87199,
2006-Ohio-5566, at ¶ 10, citing Mikula v. Slavin Tailors (1970), 24 Ohio St.2d 48,
263 N.E.2d 316; LaCourse v. Fleitz (1986), 28 Ohio St.3d 209, 503 N.E.2d 159;
see also Cochran v. Ohio Auto Club (Oct. 3, 1996), 3d Dist. No. 9-96-33, 1996
WL 562055.
{¶ 15} Moreover:
In Perry v. Eastgreen Realty Co. (1978), 53 Ohio St.2d 51, a
per curiam opinion, at pages 52 and 53, it is stated: “[O]nce the
evidence establishes that a dangerous condition existed, and that it is
a condition about which the owner should have known, evidence of
actual knowledge on his part is unnecessary.
“ ‘The occupier is not an insurer of the safety of invitees, and
his duty is only to exercise reasonable care for their protection. But
the obligation of reasonable care is a full one, applicable in all
respects, and extending to everything that threatens the invitee with
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an unreasonable risk of harm. The occupier must not only use care
not to injure the visitor by negligent activities, and warn him of
latent dangers of which the occupier knows, but he must also inspect
the premises to discover possible dangerous conditions of which he
does not know, and take reasonable precautions to protect the invitee
from dangers which are foreseeable from the arrangement or use.
The obligation extends to the original construction of the premises,
where it results in a dangerous condition.’ Prosser on Torts (4 Ed.),
392-93 (1971). See, also, Peaster v. William Sikes Post No. 4825
V.F.W. (1966), 113 Ga.App. 211, 147 S.E.2d 686, 687-8; De Weese
v. J.C. Penney Co. (1956), 5 Utah 2d 116, 297 P.2d 898, 901;
Gallagher v. St. Raymond’s Roman Catholic Church (1968), 21
N.Y.2d 554, 236 N.E.2d 632, 633-34 (so changing the pre-existing
common law as to require outdoor lighting where none had been
requisite); F.W. Woolworth Co. v. Bland (1933), 22 Ohio Law Abs.
660, 660-61; 39 Ohio Jurisprudence 2d 586-87, Negligence, Section
64.”
Vondenhuevel v. Overhead Door Corp. (Apr. 26, 1988), 3d Dist. No. 1-86-23,
1988 WL 40434, 1.
{¶ 16} In the case sub judice, Randy maintains that the clinic was
responsible for the hazard, i.e., the doors closing while a person was in the
threshold, because it had no policies and procedures for implementing the daily
safety checklist provided to it by Stanley Access Technologies, the company that
serviced the doors at the clinic, and had no method by which it documented which
employee implemented the checklist on any particular day. In addition, Randy
asserts that the clinic was responsible for the hazard because it determined the
length of time the doors would remain open before the doors automatically closed
and because it was informed by a Stanley technician that the OmniScan sensor that
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operated the opening and closing of the doors was obsolete and should be
upgraded.
{¶ 17} We find that Randy’s assertion regarding the clinic’s control of the
length of time the doors would remain open before automatically closing has
merit. First, Rich Cole, a supervisor for Stanley, testified about the operation of
various sensors. For instance, Cole testified that one type of threshold sensor,
referred to as the “Stan-Guard,” “looks straight down from the bottom of the
header across the opening of the door to make sure that there’s nobody standing in
the opening of the door.” However, this sensor has a blind spot because of its
limited width, and if there is no movement in the threshold for a certain period of
time, the sensor will “time-out,” resulting in the doors closing. Cole testified that
the timer on the Stan-Guard is determined by the customer and can be set to time-
out from anywhere between 30 seconds and three minutes. He further testified
that because of the Stan-Guard’s limitations, a redundant threshold sensor, referred
to as a “holding beam,” is often used in the sides of the doorway so the door will
not close on someone who is in the threshold. Although Cole was unfamiliar with
the OmniScan sensor and how it operated, his testimony reveals that there are
numerous options available to customers and that it is the customer who chooses
the door and the safety mechanisms that will be installed. Further, a Stanley
technician recommended in June 2003 that the OmniScan sensors be upgraded.
Although this recommendation was made based upon the sensors’ being obsolete
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rather than because they were not working, the fact that the technician was making
a recommendation to the clinic to upgrade demonstrates that the choice of sensors
was the clinic’s, rather than the service provider’s. Thus, the clinic determined
what safety devices would be utilized.
{¶ 18} Second, the testimony of Ralph Neddleton, the Facilities Director for
the clinic, revealed that the clinic chose what company would maintain these doors
and when the doors would be serviced. Further, the clinic knew in September
2002 that another incident similar to Martha’s had occurred when Lee Ann
Murraya, who was using a walker, was knocked down by the same doors as she
was entering the clinic. Once the clinic knew this type of incident could happen, it
alone had the power to determine whether to have new sensors installed to
accommodate the types of invitees that frequented its establishment. In the
alternative, if possible on the current sensors, it could have lengthened the amount
of time before the doors would time-out or it could have adjusted the sensors that
detected whether someone/something was in the pathway of the doors to ensure
that the doors would not close if someone was in the threshold.
{¶ 19} When construing this evidence in a light most favorable to Randy,
we find that a genuine issue of material fact exists as to whether the clinic created
this hazard by failing to choose adequate safety measures or otherwise warning its
invitees about the length of time they had to safely traverse the threshold.
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{¶ 20} Randy also maintains that the clinic had actual knowledge of the
hazard and neglected to give adequate notice of its presence or to remove it
promptly. In support of his position, Randy relies upon the previously noted prior
occurrence of a similar incident involving these doors.
{¶ 21} In this incident, the affidavit of Lee Ann Murraya stated that she was
injured at the clinic on September 23, 2002. More specifically, Murraya averred
that she was entering the clinic through the automatic sliding doors at the main
entrance with the aid of her walker when the doors started to close on her. She
attempted to stop the doors but was unable to do so. The doors then knocked her
to the ground. This fall resulted in a broken finger on her right hand. Murraya
further stated that she was immediately taken by wheelchair to a receptionist,
where she checked in for her doctor’s appointment. She told the receptionist about
her fall and completed an incident report. Four days later, Murraya was contacted
by a claims specialist from the clinic’s insurance company, and her claim was later
settled out of court.
{¶ 22} When viewed in a light most favorable to Randy, this evidence
reveals that the clinic was aware of a prior incident in which a woman, who was
unable to walk without assistance, was injured while in the threshold of these sets
of doors. Yet there is no evidence that the clinic took any steps to alleviate this
problem after the first incident. While the evidence shows that Stanley conducted
routine preventive maintenance on these doors in March and June 2003 and the
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doors were functioning properly and within ANSI1 standards, there is nothing to
indicate that anyone attempted to determine at any point after Murraya’s fall how
long a person could remain in the threshold before the doors would close.
{¶ 23} Further, the record is devoid of any evidence that steps were taken
by the clinic to ensure that disabled persons entering the clinic, who require more
time to walk through a doorway than the average nondisabled person, could safely
traverse through the doors. Notably, this is a medical clinic, catering to the needs
of those who may be ill, injured, and/or disabled. Although the doors may be
operating properly and the time-out setting is satisfactory for the average person
using those doors, the clinic was aware that a previous invitee who had to use
assistance in order to walk was struck and injured by these doors. At that point,
reasonable minds could conclude that the clinic should have pursued one of two
options: (1) remedy this problem by installing better sensors that could detect
whether an object was in the threshold, even if that object was immobile, so that
the doors would either not begin to close or not continue to close while
someone/something was in the path of these doors, or (2) place some sort of notice
in a location easily observed by those entering and exiting these doors, warning
people to use caution and notifying them that the doors automatically close in “x”
amount of time. Given this evidence, we find that a genuine issue of material fact
1
ANSI is the acronym for the American National Standards Institute.
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existed as to whether the clinic had actual knowledge of the hazard and neglected
to give adequate notice of its presence or to remove it promptly.
{¶ 24} In addition, the clinic was made aware of this incident on September
23, 2002, some 19 months prior to Martha’s accident. However, the record
reveals only two times that the doors were inspected, and neither of these indicates
that the clinic ever attempted to evaluate whether it needed to obtain more
sensitive sensors or install sensors that could detect when someone/something was
in the threshold, whether that person was mobile or stationary. Accordingly,
reasonable minds could conclude that this hazard existed for a sufficient length of
time, i.e., 19 months, to reasonably justify the inference that the failure to warn
against it or remove it was attributable to a want of ordinary care. Thus, there is a
genuine issue of material fact as to this issue as well.
{¶ 25} Lastly, a genuine issue of material fact exists as to whether the clinic
failed to take reasonable precautions to protect the invitee, Martha, from dangers
that were foreseeable from the arrangement or use of these doors. As previously
noted, this obligation extends to the original installation of these doors when it
results in a dangerous condition. See Perry, 53 Ohio St.2d at 53, 372 N.E.2d 335.
Therefore, even if this prior incident had not occurred, the clinic should have taken
reasonable precautions to protect its invitees, who undoubtedly included disabled
and ill persons and oftentimes require more time to walk through a doorway than
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the average nondisabled person, by equipping its doors with protection devices to
prevent closure in the event that someone is in the threshold of the door.
{¶ 26} In light of the evidence, and construing all of the evidence in a light
most favorable to Randy, we find that there exists a genuine issue of material fact
as to whether the clinic breached its duty of care to Martha, and the trial court
erred in finding otherwise. Nevertheless, the clinic asserts that it did not owe
Martha a duty of care because the opening and closing of the doors was an open
and obvious danger. We disagree, as did the trial court.
{¶ 27} The Supreme Court of Ohio summarized the case law on the open-
and-obvious doctrine in the following manner:
“Where a danger is open and obvious, a landowner owes no
duty of care to individuals lawfully on the premises.” Armstrong v.
Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d
1088, syllabus, approving and following Sidle v. Humphrey (1968),
13 Ohio St.2d 45, 42 O.O.2d 96, 233 N.E.2d 589. “[T]he 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. (1992), 64 Ohio St.3d
642, 644, 597 N.E.2d 504. Thus, when a plaintiff is injured by an
open and obvious danger, summary judgment is generally
appropriate because the duty of care necessary to establish
negligence does not exist as a matter of law. Armstrong at ¶ 14-15.
Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d
120., at ¶ 11.
{¶ 28} Although a commercial building with automatic sliding doors is very
commonplace in today’s society, common experience with these doors does not
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suggest that they are likely to close on a person. To the contrary, most expect that
these doors are equipped with safety mechanisms to prevent the door from closing
on a person, to prevent injuries from occurring. For instance, these doors usually
begin to close after a certain amount of time, but when someone or something
enters the threshold, they cease closing and either remain in their position or
reopen. Thus, we do not find that automatic sliding doors pose the open and
obvious danger of closing on a person and causing injury so that an owner or
occupier may reasonably expect that persons entering the premises will take
appropriate measures to protect themselves.2 Accordingly, the open-and-obvious
doctrine does not apply in this case.
{¶ 29} For all of these reasons, the first assignment of error is sustained.
First Assignment of Error
{¶ 30} Randy contends in his first assignment of error that the trial court
erred by failing to apply the doctrine of res ipsa loquitur to the premature closing
of the automatic sliding doors. In contrast, the clinic asserts that this doctrine is
inapplicable because the clinic did not have exclusive control over the automatic
doors, and two or more equally probable causes exist for the injuries sustained by
2
The dissent cites a number of cases, many of which are from courts in Michigan, in support of its position
that the open-and-obvious doctrine should apply in this case. A review of those cases reveals that those
decisions are inapposite to the case sub judice. In fact, most of those cases did not involve automatic
sliding doors that retract to the sides, as is the case sub judice, but were automatic hinged doors. We find a
distinct difference as to the open and obvious danger presented by automatic hinged doors, which need
space to open and can actually open and hit a person who is in the path of the doors, and the type of doors
at issue in this case, which do not present such dangers in their normal operation.
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Martha.
{¶ 31} “The res ipsa loquitur doctrine is an evidentiary rule which permits,
but does not require, an inference of negligence when the elements of the doctrine
are shown.” Cochran v. Ohio Auto Club (Oct. 3, 1996), 3d Dist. No. 9-96-33, 1996
WL 562055, citing Morgan v. Children’s Hosp. (1985), 18 Ohio St.3d 185, 480
N.E.2d 464. Whether the doctrine of res ipsa loquitur applies is determined on a
case-by-case basis. Jennings Buick, Inc. v. Cincinnati (1980), 63 Ohio St.2d 167,
171, 406 N.E.2d 1385.
To warrant the application of the rule plaintiff must adduce
evidence in support of two conclusions: (1) That the instrumentality
causing the injury was, at the time of the injury, or at the time of the
creation of the condition causing the injury, under the exclusive
management and control of the defendant; and (2) that the injury
occurred under such circumstances that in the ordinary course of
events it would not have occurred if ordinary care had been
observed.
Id. at 170, citing Hake v. George Wiedemann Brewing Co. (1970), 23 Ohio St.2d
65, 66-67, 262 N.E.2d 703; Fink v. New York Cent. RR. Co. (1944), 144 Ohio St.
1, 56 N.E.2d 456. “Res ipsa loquitur does not apply where the facts are such that
an inference that the accident was due to a cause other than defendant’s negligence
could be drawn as reasonably as if it was due to his negligence.” Cochran, 3d Dist.
No. 9-96-33, 1996 WL 562055, *4, citing Greer v. Frazier-Williams Chevrolet-
Oldsmobile, Inc. (Apr. 3, 1991), 1st Dist. No. C-900242.
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{¶ 32} Here, the clinic asserts that it did not have exclusive management
and control of the door because it contracted with Stanley for the maintenance and
inspection of the doors. The clinic also maintains that there are other efficient and
probable causes of Martha’s injury that are not attributable to the negligence of the
clinic.
{¶ 33} As to the issue of exclusive management and control, Cole testified
that the customer, such as the clinic, signs a contract for preventive maintenance
with the company, and the contract terms provide how often maintenance will be
performed. Further, the customer determines when maintenance will be
performed. For instance, Cole testified that some customers request that the
Stanley technician call before coming to the customer’s location. Otherwise, the
technician will simply go to the location and inquire of the customer whether “it’s
a good day for the inspection.” Beyond preventive maintenance, the service
provided by Stanley is at the request of the customer: “[W]e [Stanley] don’t go
somewhere we’re not asked to go.”
{¶ 34} Neddleton testified that the service contract with Stanley was for a
yearly inspection of the doors and for any repairs or maintenance needed on the
doors. If a repair was needed, the technician would provide a service ticket to
Neddleton, who would either approve or not approve the repair. Then, any
approved repairs would be performed by the technician. Beyond this, the clinic’s
maintenance department is not responsible for the maintenance of the doors but is
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responsible for making sure that the doors operate safely at the beginning of each
business day. In order to do this, a maintenance worker unlocks the doors3 and
turns them on at approximately 6:30 each morning. The worker then follows a
checklist, which is located on the upper right-hand corner of the outside door
frame. This procedure consists of allowing the doors to “cycle” and close, and
then the worker walks through both sets of doors (beginning on the inside of the
clinic, as the worker enters the clinic through an employee entrance) and back
through them. This walk-through is done one time. However, this check does not
include stopping in the threshold to determine whether the doors will close on the
worker.
{¶ 35} A review of the evidence also reveals that Stanley conducted
preventive maintenance in March and June 2003 and at that time, the threshold
scan and/or safety beams were working properly and within ANSI standards.
{¶ 36} Martha was injured in April 2004, some ten months after this last
service. During this time, the evidence reveals that the only people responsible for
ensuring that the doors worked properly and safely were the employees in the
clinic’s maintenance department. While anyone entering and exiting the clinic
was capable of activating the doors by merely entering the pathway of the sensors
responsible for automatically opening the doors, the record is devoid of any
3
Neddleton testified that security for the clinic locks the doors each night between 10:00 and 10:30.
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evidence that the general public could manipulate the activity and/or sensitivity of
the sensors either purposely or inadvertently or, more importantly, could make
decisions about the timing of the sensors or the closing of the doors.4
{¶ 37} Further, the clinic exerted exclusive management and control over
when these doors were accessible to the public by locking them at night and
unlocking them in the morning. Neddleton also provided testimony as to what
would happen if the doors did not function properly, such as shutting them down
in the event that they malfunctioned or securing them in an open position if there
was an operational problem. Thus, the evidence when viewed in a light most
favorable to Randy indicates that the clinic had the sole power to determine when
and if the public would have access to these doors.
{¶ 38} Moreover, as previously noted, the clinic determined what kind of
doors it would have, what sensors it wanted on these doors, what company would
maintain these doors, and when the doors would be serviced. Further, once the
clinic knew of another incident similar to Martha’s, it alone had the power to
determine whether to have new sensors installed to accommodate the types of
invitees that frequented its establishment or, if possible on the current sensors, to
4
We find the cases cited by the clinic regarding public access to instrumentalities causing an invitee injury
to be inapposite to the case sub judice. Rather, those cases involved situations wherein the public’s access
to these things could have as readily resulted in the injuries to the plaintiff as any act or omission by the
defendant-business. See e.g., Hansen v. Wal-Mart Stores, 4th Dist. No. 07CA2990, 2008-Ohio-2477(merchandise display was in location that customers could access and manipulate).
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lengthen the amount of time before the doors would time-out or adjust the sensors
that detected whether someone or something was in the pathway of the doors.
{¶ 39} For all of these reasons, we find that Randy presented sufficient
evidence that at the time of Martha’s injury, the doors were under the exclusive
management and control of the clinic.
{¶ 40} Our inquiry does not end there, however. The next question is
whether the injury occurred under such circumstances that in the ordinary course
of events, it would not have occurred if ordinary care had been observed. Several
courts have concluded that “[a]utomatic doors do not, in the ordinary course of
things, cause injury to those who pass through them.” Brown v. Scrivner, Inc.
(1992), 241 Neb. 286, 488 N.W.2d 17, 19. See also Rose v. Port of New York
Auth. (1972), 61 N.J. 129, 293 A.2d 371, 375 (“[m]embers of the public passing
through automatic doors, whether in an airport, office building or supermarket do
so generally, without sustaining injury. What happened to the plaintiff here is
fortunately unusual and not commonplace. It strongly suggests a malfunction
which in turn suggests neglect”; noted in Prosser & Keeton, Law of Torts (5th
Ed.1984)); Landmark Hotel & Casino, Inc. v. Moore (1988), 104 Nev. 297, 757
P.2d 361, 364 (“[a]utomatic sliding glass doors * * * are ubiquitous, affording the
public safe ingress and egress to countless facilities on a daily basis. What
happened to Moore is unusual; it strongly suggests a malfunction attributable to
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negligence”). But see Hisey v. Cashway Supermarkets, Inc. (1967), 77 N.M. 638,
426 P.2d 784.5
{¶ 41} We agree with those courts that have found that automatic doors do
not ordinarily close on a person absent negligence. Nevertheless, the clinic
maintains that there is more than one reasonable probable cause of the door’s
closing on Martha that is not attributable to the clinic’s negligence: (1) the
manufacturer’s limit to a maximum of three minutes for the doors to remain open
when Martha may have needed more time to traverse the doors, (2) poor design of
the sensor that may not have “seen” Martha while she was standing in that area of
the door; and (3) Martha’s failure to position herself where the sensors could
detect her or “to move quickly enough to have avoided the closing door.”
{¶ 42} What the clinic fails to acknowledge is that none of these
contentions alleviates its knowledge of the door’s sensors and thus, its negligence
in failing to address these issues. The clinic knew the make-up of its clientele.
The clinic would be the party with the knowledge about what doors it used and
what type of timing the sensors had. The clinic knew of another incident wherein
a disabled invitee was injured when she did not “move quickly enough” to avoid
being struck by the closing automatic doors. Yet the record is devoid of any
evidence that the clinic did anything to obtain more sensitive sensors, lengthen the
5
Once again the dissent relies on a number of cases that are factually distinguishable from the case sub
judice to avoid application of the doctrine of res ipsa loquitor.
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amount of time before the doors timed-out, if possible, or otherwise warn its
disabled invitees to stay in the path of the sensors and/or “move quickly enough to
avoid injury.” Further, there is nothing in the record to show that Martha had
acted in any negligent manner. Hayman’s undisputed affidavit demonstrates that
Martha merely attempted to walk through the doorway as one would ordinarily do,
albeit slowly because she needed a cane to walk. Simply not having the agility to
avoid being hit by a closing door does not amount to negligence. Therefore, we
find that Martha was injured under such circumstances that in the ordinary course
of events would not have occurred if ordinary care had been observed.
Accordingly, the doctrine of res ipsa loquitur does apply, and the first assignment
of error is sustained.
{¶ 43} For all of these reasons, the judgment of the Common Pleas Court of
Marion County, Ohio, is reversed, and the cause is remanded for further
proceedings consistent with this opinion.
Judgment reversed
and cause remanded.
ROGERS, J., concurs.
Preston, J., dissents.
__________________
PRESTON, J., dissenting.
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{¶ 44} The majority’s opinion fails to hold Randy to his reciprocal burden
under Civ.R. 56(E) to set forth facts showing a genuine issue for trial. As a result
of this fundamental error, the majority opinion incorrectly concludes that a
question of fact remains, fails to apply the open-and-obvious doctrine, and
incorrectly applies the doctrine of res ipsa loquitur. Therefore, I respectfully
dissent.
{¶ 45} The Smith Clinic moved for summary judgment primarily for two
reasons: (1) that plaintiff failed to demonstrate a breach of duty and (2) that it
owed Martha no duty of care since the automatic doors’ normal operation was an
open and obvious danger. In his response brief at trial and on appeal, Randy
offered no argument regarding the application of the open-and-obvious doctrine to
the normal operation of the automatic doors; rather, Randy argued that the
doctrine of res ipsa loquitur applied and that evidence existed demonstrating a
breach of the clinic’s duty of care. In fact, the trial court noted Randy’s lack of
argument in its judgment entry: “Plaintiff did not address this issue in its response
brief and therefore has not raised any genuine issue of material fact with regards to
the operation of the open and obvious doctrine.”
{¶ 46} Nevertheless, the majority concludes—with little analysis—that the
open-and-obvious doctrine does not apply to the automatic doors in this case.
Several courts have concluded otherwise when, like here, there is no evidence that
the automatic doors malfunctioned. Brown v. Pet Supplies Plus (Aug. 26, 1999),
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7th Dist. No. 98 CA 9; Cassani v. Meijer, Inc., (Mich.Ct.App.2003), No. 240486,
2003 WL 1365919, at *1; Rummel v. Henry Ford Health Sys.
(Mich.Ct.App.2007), No. 271563, 2007 WL 1791955, at *1. See also Mann v.
Tractor Supply Co. (S.D.Ohio 2010), No. 2:08-cv-569, 2010 WL 1856312, at *4-5
(open-and-obvious doctrine does not apply when the automatic door
malfunctions); Horvath v. Fisher Foods, Inc. (App.1963), 93 Ohio Law Abs. 182,
194 N.E.2d 452, 455 (question of fact concerning abnormal operation of
automatic door); Hoganson v. Menard, Inc. (W.D.Mich.2007), No. 2:04-cv-299,
2007 WL 4395534 (same). The evidence in this case demonstrated that the
automatic doors were inspected just months prior to Martha’s accident and found
to be working within ANSI safety standards. But for the accidents, there is simply
a lack of evidence indicating a door malfunction in this case, and to avoid
summary judgment, Randy was required under Civ.R. 56(E) to set forth specific
facts indicating a malfunction. As an additional matter, the warning that Randy
suggests should have been provided to patrons—“[d]on’t stop on the threshold”—
declares the open-and-obvious nature of the hazard upon ordinary inspection by a
reasonable person.
{¶ 47} The majority also incorrectly concludes that a question of fact
remains concerning a breach of duty. Like in Gouhin v. Giant Eagle, there was
simply a lack of evidence in this case demonstrating a breach of duty. 10th Dist.
No. 07AP-548, 2008-Ohio-766. Rich Cole’s testimony concerning the operation
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of the Stanley “Stan-Guard” sensor is irrelevant to show a breach of duty because
the Smith Clinic’s automatic doors were equipped with “Omni-Scan” sensors.
When asked how Stan-Guard sensors differed from Omni-Scan sensors, Cole
testified, “I don’t know. I don’t know what an OmniScan is or does. * * * [a]nd I
had never heard of them before I saw it on the document here.” When asked if
Stan-Guard sensors were technologically superior to Omni-Scan sensors, Cole
testified, “Not better, just different. I don’t know that it was better or not, I don’t
know what the OmniScan was, what it did.” In fact, the record indicates that Cole
has never even seen the clinic’s automatic doors or sensors. Despite Cole’s lack
of knowledge and his testimony that the clinic’s OmniScan sensor was operating
within ANSI safety standards, the majority concludes that the clinic’s ability to
replace the OmniScan sensors with better or additional safety sensors—including
those not required by ANSI safety standards—demonstrates a breach of the
clinic’s duty.
{¶ 48} The majority’s decision is even more troubling because, in practice,
it requires business owners to install safety devices beyond those ANSI safety
standards require—at least to avoid tort liability. For example, the majority
suggests that the clinic should have installed a sensor that would have held the
doors open when someone/something was in the door’s path and immobile. This
would have probably required that the clinic install a “holding beam,” which Cole
testified that ANSI safety standards did not require at that time. The Smith Clinic
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could have reasonably relied upon Stanley Door’s conclusion that their automatic
doors were compliant with ANSI safety standards. Reliance upon these national
standards provides businesses with guidance in maintaining safe automatic doors.
The majority’s opinion undermines this guidance and reliance. The majority has
inappropriately replaced ANSI safety standards with its own.
{¶ 49} The majority also errs in concluding that the doctrine of res ipsa
loquitur applies in this case. Again, Randy has failed to meet his burden to
“adduce evidence” in support of the doctrine’s two required conclusions. Jennings
Buick, Inc. v. Cincinnati (1980), 63 Ohio St.2d 167, 171, 406 N.E.2d 1385. In his
response to the clinic’s motion for summary judgment, Randy merely alleged:
“There should be no dispute * * * that at the time of the injury * * * the sliding
glass doors to the main entrance to the Fredrick C. Smith Clinic was under the
exclusive management and control of the defendant.” Likewise, on appeal, Randy
failed to point to any evidence in the record upon which a rational trier of fact
could conclude that the automatic doors were in the clinic’s exclusive
management and control. In fact, Randy mistakenly asserted: “It is unrefuted that
Defendant Clinic had exclusive management and control of the automatic sliding
doors during the time in question.” The clinic, both in its reply brief in the trial
court and in its appellate brief, strongly refuted that the automatic doors were in
their exclusive control and management. Further, Randy has filed no reply brief
with this court. Aside from that, the doctrine is inapplicable here because the
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evidence affirmatively demonstrated that the accident could have occurred even if
the OmniScan sensor was functioning properly and the doors were equipped with
holding beams.
{¶ 50} Furthermore, the Court of Appeals in Ohio has rejected the
application of the doctrine, finding that the business owners did not have exclusive
management and control of the automatic doors since patrons control the doors’
operation. Knox v. Bag-N-Save Foods (Apr. 8, 1999), 5th Dist. No.
1998AP080100, at *3; Lewis v. Newburg Supermarket (Sept. 24, 1998), 8th Dist.
No. 73238, at *4. See also Farina v. First Natl. Bank (1943), 72 Ohio App. 109,
51 N.E.2d 36 (manual revolving bank door). One district in Ohio found the
doctrine applicable where the evidence affirmatively demonstrated “that automatic
doors, when properly operating, do not close on people.” Musial v. Tamarkin Co.
(Sept. 1, 1994), 7th Dist. No. 93 C.A. 40, at *1. Cole’s testimony here was exactly
the opposite. The majority ignores these Ohio decisions, and instead, relies upon
cases from other states to reach its decision.
{¶ 51} For all these reasons, I respectfully dissent. I would overrule the
assignments of error and affirm the trial court’s grant of summary judgment.
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