Thayer v. B.L. Bldg. & Remodeling, L.L.C.

[Cite as Thayer v. B.L. Bldg. & Remodeling, L.L.C., 2018-Ohio-1197.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105950
SUZANNE THAYER, ET AL.
PLAINTIFFS-APPELLANTS
vs.
B.L. BUILDING & REMODELING, L.L.C., ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
REVERSED; REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-16-863454
BEFORE: E.A. Gallagher, A.J., Stewart, J., and Laster Mays, J.
RELEASED AND JOURNALIZED: March 29, 2018
ATTORNEYS FOR APPELLANTS
Michael D. Shroge
Plevin & Gallucci Co., L.P.A.
55 Public Square, Suite 2222
Cleveland, Ohio 44113
Paul W. Flowers
Paul W. Flowers Co., L.P.A.
Terminal Tower, Suite 1910
50 Public Square
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEES
Colleen A. Mountcastle
Gary L. Nicholson
Todd M. Haemmerle
Gallagher Sharp L.L.P.
Buckley Building, Sixth Floor
1501 Euclid Avenue
Cleveland, Ohio 44115
EILEEN A. GALLAGHER, A.J.:
{¶1} Plaintiffs-appellants Suzanne Thayer (“Thayer”) and Mark Thayer
(collectively, “appellants”) appeal from the trial court’s order granting summary judgment
in favor of defendant-appellee B.L. Building & Remodeling, L.L.C. (“B.L. Building”) on
their negligence claim arising out of a trip-and-fall accident. For the reasons that follow,
we reverse the trial court’s judgment and remand the matter for further proceedings.
Factual and Procedural Background
{¶2} On June 18, 2014, Thayer, a registered nurse, was working the night shift
(7:00 p.m. to 7:00 a.m.) in the labor and delivery department of St. John Medical Center
(“St. John’s”) in Westlake, Ohio. She began working at St. John in May 2014 as a PRN
nurse, working 12 to 24 hours a week on average, after working 20 years as a labor and
delivery nurse at Mercy Hospital f.k.a. Lorain Community Hospital.
{¶3} At some point during her shift, Thayer and another nurse, Kristin Mulica,
went into the kitchenette area of the labor and delivery floor to get a beverage and ice for
a patient’s husband. The kitchenette contained a refrigerator, ice machine, coffee
machine, microwave and a table and chairs where patients’ families could sit and wait.
At the time, the kitchenette was being remodeled and was under construction. Thayer
and Mulica testified that the nurses had not been given prior notice of the construction
and that they first learned the kitchenette was being remodeled when they entered the area
that evening.
{¶4} B.L. Building was the contractor hired to remodel the kitchenette. Prior to
the construction, the kitchenette had been open. Brian Landon, the company’s owner
and president, testified that his company had been installing new railings for St. John’s
when the hospital’s director handed him a sketch and asked if he could close off the
kitchenette to make it more private. Landon testified that the project involved
constructing a partial wall and installing a three-foot-by-seven-foot door and a
three-foot-by-six-foot window.1 He testified that B.L. Building used drywall, metal studs
and a metal sill to create a “pictured framed window opening.” The hospital supplied the
door.
{¶5} On the evening of June 18, 2014, the opening for the window had been
partially constructed, but glass had not yet been placed in the window opening.2 The
base of the partially constructed window opening was approximately 12 inches from the
floor.
{¶6} Thayer testified that she was conversing with Mulica and Jennifer
Campbell, M.D., an OB hospitalist at St. John’s, as she entered the kitchenette. Thayer
testified that she was “not sure” how she entered the kitchenette but stated that she “did
At his deposition, Landon testified that, prior to the project, the opening for the kitchenette
1
was “an 8 to a 10-foot opening.” In an affidavit submitted in support of B.L. Building’s motion for
summary judgment, he testified that the opening was “approximately 7 feet by 13 feet.”
It is not clear from the record whether the door had yet been installed. Although Campbell
2
testified that she entered the kitchenette through the door, Thayer could not recall if there were “one
or two openings” in the wall at the time of her fall or whether the “strip [of wall] in the middle that
separates the door from the window” was yet in place.
not walk over anything.” Mulica testified that when she and Thayer entered the
kitchenette, they were “focused on what the patient asked for, and we were getting her
that item, so that was our focus” and that they did not discuss the construction.
Campbell, who was in the kitchenette getting ice water, testified that she entered the
kitchenette by walking through the door.3
{¶7} After she got the beverage and ice, Thayer exited the kitchenette. Thayer
testified that she was talking to Mulica and Campbell, looking “[s]traight ahead,” when
she tripped on “an eight-inch piece of wood” and fell through the partially constructed
window opening. Thayer testified that she struck both of her shins against the base of
the window opening, hit both of her forearms on the “outside of the molding” and that her
body then “flung to the left side of the pane” as she went through the window opening.
Thayer testified that she caught herself and stayed on her feet albeit “[w]ith some kind of
body contortion.”
{¶8} Mulica witnessed the incident. Mulica testified that she was in the
kitchenette when she saw Thayer trip over the “hump” at the bottom of the wall where the
window was going to be installed. Mulica testified that Thayer fell through the window
opening but “caught herself,” hitting her shoulder against the window jamb and “skinning
up” her knees and elbows. Campbell did not see Thayer trip and fall, i.e., Campbell
testified that Thayer fell to her right, out of her field of vision, but saw her immediately
after the fall.
Neither Mulica nor Campbell testified as to how Thayer entered the kitchenette.
3
{¶9} Campbell testified that there was nothing precluding anyone from using the
door to enter or exit the kitchenette, that the portion of the wall between the floor and the
window opening was in plain view with nothing obstructing it and that she had not seen
anyone else attempt to exit the kitchenette through the partially constructed window
opening. Mulica testified that the area was well lit.
{¶10} Thayer, Mulica and Campbell each testified that, at the time Thayer fell,
there was no caution tape, cones or any other “markings” or warnings to indicate that the
area was under construction or to block off access to the partially constructed window.
Nurse manager Julianne Cribbs similarly testified that when she viewed the kitchenette
area shortly after the incident, “there was nothing there.”
{¶11} Landon disputed the claim that B.L. Building had placed no caution tape
over the partially constructed window opening prior to Thayer’s fall. He testified that he
and one of his employees, Adam Biltz, were the only two persons who worked on the
construction portion of the kitchenette remodel.4 He testified that the hospital did not
want the area closed off to the public during the remodeling and that, therefore, they
“would not leave anything open without caution tape being on it.” He stated that when
he and Biltz left for the day, they would put caution tape over the window opening that
existed before the glass plate was installed. He testified that they did this “so that you
see obviously that you can’t walk through an opening.” “It’s just what you do * * * if
you have something that’s not completed. * * * You don’t want them to use that.”
Landon testified that subcontractors did the wallpaper removal, painting and flooring work.
4
Landon testified he was typically on the job from 8:00 a.m. until 4:30 p.m. and that he
had no way of knowing what may have happened or who may have had access to the
room after he left for the day. Landon testified that B.L. Building did not place any other
warnings on, or barriers to, the partially constructed window opening before the project
was completed.
{¶12} Thayer testified that after she fell, her shins were bleeding, she felt a sharp
pain in her left shoulder and she had abrasions on her forearms. She changed her scrubs,
cleaned the blood off of her legs and finished her shift. After her shift, Thayer went
home and went to bed. She did not immediately seek medical treatment for her injuries.
On July 13, 2014, Thayer went to the emergency room due to “intense pain” and loss of
motion in her left arm and shoulder. In February 2015, Thayer had surgery on her left
shoulder
{¶13} On May 18, 2016, appellants filed suit against B.L. Building, asserting a
negligence claim for the injuries Thayer sustained in the incident. Appellants alleged
that B.L. Building knew or should have known of the dangers presented by the
construction area and failed to take reasonable precautions, including providing warnings
or other safeguards, to prevent her foreseeable injuries. Appellants claimed over $60,000
in medical expenses and $70,000 in lost wages as a result of the incident. Mark Thayer
also asserted a loss of consortium claim.
{¶14} B.L. Building filed an answer denying liability and asserting various
affirmative defenses. In March 2017, it filed a motion for summary judgment. B.L.
Building argued that appellants’ claims were barred because the danger posed by the
window opening was open and obvious, that B.L. Building owed no duty to warn or
protect Thayer from open and obvious hazards and there was no evidence that B.L.
Building otherwise breached any duty owed to Thayer.
{¶15} Appellants opposed the motion. They argued that the open and obvious
doctrine did not apply to independent contractors and that, under the facts and
circumstances at issue, a reasonable jury could find that B.L. Building had breached a
duty of care owed to Thayer and caused her injuries.
{¶16} On June 5, 2017, the trial court granted B.L. Building’s motion for summary
judgment. The trial court found that there were no genuine issues of material fact, that
reasonable minds could reach only one conclusion and that B.L. Building was entitled to
judgment as a matter of law. The trial court did not explain the reasoning behind its
decision.
{¶17} Appellants appealed, raising the following assignment of error for review:
The trial judge erred, as a matter of law, by granting summary judgment
upon plaintiff[s]-appellants’ claims of common law negligence.
Law and Analysis
Standard of Review
{¶18} We review summary judgment rulings de novo, applying the same standard
as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St. 3d 102, 105, 671 N.E.2d 241
(1996). We accord no deference to the trial court’s decision and conduct an independent
review of the record to determine whether summary judgment is appropriate.
{¶19} Under Civ.R. 56, summary judgment is appropriate when no genuine issue
as to any material fact exists and, viewing the evidence most strongly in favor of the
nonmoving party, reasonable minds can reach only one conclusion that is adverse to the
nonmoving party, entitling the moving party to judgment as a matter of law.
{¶20} On a motion for summary judgment, the moving party carries an initial
burden of identifying specific facts in the record that demonstrate his or her entitlement to
summary judgment. Dresher v. Burt, 75 Ohio St. 3d 280, 292-293, 662 N.E.2d 264
(1996). If the moving party fails to meet this burden, summary judgment is not
appropriate; if the moving party meets this burden, the nonmoving party has a reciprocal
burden to point to evidence of specific facts in the record demonstrating the existence of a
genuine issue of material fact for trial. Id. at 293. Summary judgment is appropriate if
the nonmoving party fails to meet this burden. Id.
Negligence
{¶21} In their sole assignment of error, appellants contend that the trial court erred
in granting summary judgment in favor of B.L. Building on their negligence claim. They
argue that summary judgment was improper because (1) Thayer’s injury was
foreseeable, (2) the open and obvious doctrine did not apply, (3) “sensible jurors” could
conclude that B.L. Building breached a duty owed to Thayer by installing a “one foot
high trip hazard” without any warnings or barriers and (4) any issues of comparative
negligence needed to be resolved by the jury.
{¶22} B.L. Building asserts that the trial court’s entry of summary judgment was
proper because (1) “reasonable minds” could only conclude, given the“open and obvious
nature” of the alleged hazard, that B.L. Building did not breach a duty owed to Thayer,
(2) Thayer presented no evidence of “attendant circumstances” that excused her failure to
observe the potential hazard and (3) Thayer’s own negligence outweighed any alleged
negligence by B.L. Building.
{¶23} “Under Ohio law, an independent contractor who creates a dangerous
condition on someone else’s property is subject to the general laws of negligence.”
Miller v. Moyer, 6th Dist. Sandusky No. S-16-033, 2017-Ohio-7106, ¶ 15; see also
Simmers v. Bentley Constr. Co., 64 Ohio St. 3d 642, 645, 597 N.E.2d 504 (1992). In such
cases, the open and obvious doctrine — which provides that a property owner or occupier
has no duty to warn or protect an invitee against open and obvious dangers on the
property — does not apply and is not a bar to a negligence claim brought by a person
injured by the dangerous condition. See Simmers at syllabus (“An independent
contractor who creates a dangerous condition on real property is not relieved of liability
under the doctrine which exonerates an owner or occupier of land from the duty to warn
those entering the property concerning open and obvious dangers on the property.”).
{¶24} To prove negligence, a plaintiff must establish the existence of a duty, a
breach of that duty and an injury proximately resulting from the breach of duty. See, e.g.,
Menifee v. Ohio Welding Prods., Inc., 15 Ohio St. 3d 75, 77, 472 N.E.2d 707 (1984). A
defendant’s duty to a plaintiff depends upon the relationship between the parties and the
foreseeability of injury. Simmers at 645. Injury is foreseeable if a reasonably prudent
person would anticipate that his or her act is likely to cause harm. Id.; Menifee at 77.
Whether a duty exists is question of law for the court to determine. Mussivand v.
David, 45 Ohio St. 3d 314, 318, 544 N.E.2d 265 (1989). Whether a defendant “properly
discharged [its] duty of care” is usually a question of fact for the jury. Commerce &
Industry Ins. Co. v. Toledo, 45 Ohio St. 3d 96, 98, 543 N.E.2d 1188 (1989).
{¶25} In this case, B.L. Building owed a duty of ordinary care to Thayer to protect
her from harm related to its construction work on the kitchenette. See, e.g., Royce v.
Yardmaster, 11th Dist. Lake No. 2007-L-080, 2008-Ohio-1030, ¶ 21 (“An independent
contractor owes a general duty of care toward the owner’s invitee, i.e., he must exercise
that degree of care which an ordinarily careful and prudent person would exercise under
the same or similar circumstances.”); see also Jackson v. J-F Ents., 6th Dist. Lucas No.
L-10-1285, 2011-Ohio-1543, ¶ 13; McGuire v. Sears, Roebuck & Co., 118 Ohio App. 3d
494, 500, 693 N.E.2d 807 (1st Dist.1996) (“As an independent contractor, * * *
[defendant] * * * was required to warn [store’s] customers of any foreseeable risk of
harm it created on the premises”). However, Thayer also had a duty to exercise
reasonable care to avoid injury to herself.
{¶26} While the open and obvious doctrine does not relieve an independent
contractor of a duty of care, the open and obvious nature of a hazard may be relevant for
other purposes in connection with a negligence claim. As the Ohio Supreme Court
explained in Simmers, a hazardous condition that is “sufficiently discernible” may, in and
of itself, “constitute an adequate warning of the danger,” precluding a finding of breach.
Simmers, 64 Ohio St. 3d at 646, 597 N.E.2d 504; see also Brock v. Food, Folks & Fun,
Inc., 2d Dist. Montgomery No. 25719, 2014-Ohio-2668, ¶ 20-23 (plaintiff could not
prove that defendant contractor breached its duty of ordinary care to plaintiff who fell on
or near handicap accessible ramp where ramp was “distinct and observable,” plaintiff’s
view of the ramp was not obstructed in anyway and plaintiff’s “admitted failure to
recognize and appreciate the attendant hazards and ordinary danger associated with the
handicap accessible ramp were not foreseeable” by the defendant); Zitron v. Sweep-A-Lot,
10th Dist. Franklin No. 09AP-1110, 2010-Ohio-2733, ¶ 2-3, 16 (trial court did not err in
granting summary judgment on negligence claim against independent contractor where
plaintiff tripped on a hose contractor’s employee was using to clean sidewalk; plaintiff
could not prove that contractor breached its duty of ordinary care because hose “was in
plain sight, was easily observable to a reasonably prudent person who could be expected
to protect himself or herself, and did not create a foreseeable risk of unreasonable harm”).
{¶27} Likewise, a plaintiff’s failure to protect himself or herself from an obvious
hazard may constitute contributory negligence. A plaintiff’s contributory negligence,
however, does not automatically preclude the plaintiff from recovering damages
proximately caused by a defendant’s negligence. Under R.C. 2315.33,
“[t]he contributory fault of a person does not bar the person as plaintiff
from recovering damages that have directly and proximately resulted from
the tortious conduct of one or more other persons, if the contributory fault
of the plaintiff was not greater than the combined tortious conduct of all
other persons from whom the plaintiff seeks recovery in [the] action and of
all other persons from whom the plaintiff does not seek recovery in [the]
action.”
{¶28} Following a thorough review of the record, viewing the evidence in the light
most favorable to Thayer, we find that genuine issues of material fact exist that cannot be
properly resolved on summary judgment. On the record before us, we believe reasonable
minds could disagree as to whether B.L. Building breached its duty of ordinary care to
Thayer and whether any such breach was the proximate cause of Thayer’s injuries. We
also believe issues of fact exist as to whether Thayer was contributorily negligent in
failing to observe and avoid the hazard presented by the partially constructed window
and, if so, the extent to which Thayer’s own negligence proximately caused her injuries.
{¶29} This is not a case in which the trip hazard was so open and obvious that
reasonable minds could only conclude that no warnings or other safeguards were
necessary to protect persons who were using the kitchenette from the hazard. Compare
Brock, 2014-Ohio-2668, at ¶ 20-23; Zitron, 2010-Ohio-2733, at ¶ 16. Indeed, Landon
testified that the reason B.L. Building placed caution tape over the window opening5 was
“so that you see obviously that you can’t walk through [the] opening,” apparently
anticipating that someone entering or exiting the kitchenette might not otherwise see or
appreciate the danger posed by the partially constructed window opening.
As noted above, the parties dispute whether B.L. Building, in fact, placed caution tape over
5
the partially constructed window opening prior to Thayer’s fall. Landon testified that caution tape
was placed over the window opening; Thayer and her coworkers testified unequivocally that they saw
no caution tape over the window opening prior to the incident.
{¶30} Likewise, although there is evidence from which it could be inferred that
Thayer’s injuries were due to distraction or lack of attentiveness on her part, this is not a
case in which the evidence of contributory negligence is “so compelling” that a
reasonable jury could only find that Thayer’s contributory fault was “greater than the
combined tortious conduct of all other persons from whom [she] seeks recovery in this
action and of all other persons from whom [she] does not seek recovery in this action”
such that she would be barred from recovery under Ohio’s comparative negligence
statute. R.C. 2315.33; Simmers, 64 Ohio St. 3d at 646, 597 N.E.2d 504 (“Issues of
comparative negligence are for the jury to resolve unless the evidence is so compelling
that reasonable minds can reach but one conclusion.”); see also Young v. New Southgate
Lanes, 8th Dist. Cuyahoga No. 88552, 2007-Ohio-2923, ¶ 39 (summary judgment in
favor of defendant bowling alley was not proper where evidence demonstrated a genuine
issue of material fact as to whether plaintiff was more than 50 percent at fault for her
injuries when she lost her balance and fell while bowling). Rather, this is a case in
which “[t]he question of whether appropriate steps were taken to prevent reasonably
foreseeable injuries must be resolved by the trier of fact.” Rodriguez v. Rockefeller Bldg.
Assocs., 8th Dist. Cuyahoga No. 86059, 2006-Ohio-2208, ¶ 16.
{¶31} Accordingly, the trial court erred in entering summary judgment in favor of
B.L. Building. Appellants’ assignment of error is sustained
{¶32} Judgment reversed; case remanded.
It is ordered that appellants recover from appellee the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to Cuyahoga County Court of Common
Pleas 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.
____________________________________________________
EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE
MELODY J. STEWART, J., and
ANITA LASTER MAYS, J., CONCUR