Foster v. Ohio Dept. of Natural Resources

[Cite as Foster v. Ohio Dept. of Natural Resources, 2010-Ohio-2314.]
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
SHANNON FOSTER
Plaintiff
v.
OHIO DEPARTMENT OF NATURAL RESOURCES
Defendant
Case No. 2009-07547-AD
Deputy Clerk Daniel R. Borchert
MEMORANDUM DECISION
{¶ 1} Plaintiff, Shannon Foster, filed this action against defendant, Department
of Natural Resources (DNR), alleging she suffered personal injury on some unspecified
date at some unspecified location. In her complaint, plaintiff recorded, “[w]hile getting
up from a picnic table, a rock under my (left) foot rolled causing me to fall.” Plaintiff
claimed injury to her left buttock, lower back, left hip, left elbow, abdominal area, and
diaphragm area as a direct result of the trip and fall. Plaintiff requested damage
recovery in the amount of $1,951.81. Plaintiff did submit a copy of a medical bill from
Wooster Community Hospital in the amount of $1,951.81 listing a treatment service date
of August 2, 2009. Designated payers on the medical treatment bill are this court (The
Court of Claims of Ohio) and plaintiff’s insurers Summa Care/Medicare. Plaintiff denied
receiving any payment from any collateral source for medical expenses she incurred.
The filing fee was paid.
{¶ 2} Defendant filed an investigation report disputing the allegations in
plaintiff’s complaint based on the fact plaintiff did not produce any documentation to
verify the location of the alleged personal injury incident or any corroborating statement
or report. Furthermore, defendant pointed out the medical bill plaintiff submitted which
represents the amount of damages claimed lists “Non-Covered Charges” amounting to
$0.00 (zero and no/100 dollars). Defendant maintained plaintiff did not claim any
damages that were not covered by a collateral source.
{¶ 3} Defendant contended plaintiff failed to state an actionable claim against
DNR. Defendant cited the following case law to support its position:
{¶ 4} “The elements for an actionable claim of negligence are (1) a duty owed
by the defendant toward the plaintiff; (2) a breach of that duty, and (3) an injury
proximately caused by that breach. However, Defendant is not an insurer of Plaintiff’s
safety. See Holdshoe v. Whinery (1968), 14 Ohio St. 2d 134. Further, there is no duty
upon Defendant to protect Plaintiffs from dangers that were known to them or which
were so obvious and apparent to them that they could reasonably be expected to
discover them and protect themselves against them. Sidle v. Humphrey (1968), 13
Ohio St. 2d 45.”
{¶ 5} Defendant advised plaintiff did not provide any evidence to establish her
injuries occurred on DNR premises, were proximately caused by negligence on the part
of DNR, or that she suffered economic damages not covered by a collateral source.
Defendant argued plaintiff failed to prove any element necessary to prevail on a
negligence claim.
{¶ 6} Plaintiff filed a response noting: “I was stradling [sic] the picnic table
bench. I stood up. My left foot came to settle on a rock that moved. I lost my balance
and fell.” Plaintiff did not provide a location of the picnic table. Plaintiff did not produce
any photographs depicting the picnic table and premises condition around the picnic
table. Plaintiff did not offer any supporting documentation regarding her injury incident
such as accident reports or witness statements.
{¶ 7} For plaintiff to prevail on a claim of negligence, she must prove, by a
preponderance of the evidence, that defendant owed her a duty, that it breached that
duty, and that the breach proximately caused her injuries. Armstrong v. Best Buy
Company, Inc., 99 Ohio St. 3d 79, 2003-Ohio-2573,¶8 citing Menifee v. Ohio Welding
Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707. Plaintiff
has the burden of proving, by a preponderance of the evidence, that she suffered a loss
and that this loss was proximately caused by defendant’s negligence. Barnum v. Ohio
State University (1977), 76-0368-AD. However, “[i]t is the duty of a party on whom the
burden of proof rests to produce evidence which furnishes a reasonable basis for
sustaining his claim. If the evidence so produced furnishes only a basis for a choice
among different possibilities as to any issue in the case, he fails to sustain such
burden.” Paragraph three of the syllabus in Steven v. Indus. Comm. (1945), 145 Ohio
St. 198, 30 O.O. 415, 61 N.E. 2d 198, approved and followed.
{¶ 8} “If an injury is the natural and probable consequence of a negligent act
and it is such as should have been foreseen in light of all the attending circumstances,
the injury is then the proximate result of the negligence. It is not necessary that the
defendant should have anticipated the particular injury. It is sufficient that his act is
likely to result in an injury to someone.” Cascone v. Herb Kay Co. (1983), 6 Ohio St. 3d
155, 160, 6 OBR 209, 451 N.E. 2d 815, quoting Neff Lumber Co. v. First National Bank
of St. Clairsville, Admr. (1930), 122 Ohio St. 302, 309, 171 N.E. 327. This court, as trier
of fact, determines questions of proximate causation. Shinaver v. Szymanski (1984), 14
Ohio St. 3d 51, 14 OBR 446, 471 N.E. 2d 477.
{¶ 9} Plaintiff has stated a claim grounded in premises liability. The duty owed
by a property owner under premises liability depends upon the status of the injured
plaintiff as an invitee, licensee, or trespasser. “In premises liability situations, the duty
that an owner of land owes to individuals coming onto the property is determined by the
relationship between the parties. Light v. Ohio University (1986), 28 Ohio St. 3d 66, 67,
502 N.E. 2d 611, 613. The standard of care changes depending upon whether the
entrant is characterized as an invitee, licensee or trespasser. Gladon v. Greater
Cleveland Regional Transit Authority (1996), 75 Ohio St. 3d 312, 315, 662 N.E. 2d 287,
291.” Morgan v. Gracely, 2006-Ohio-2344, ¶7.
{¶ 10} For example, a premises owner typically owes a duty to invitees to
exercise ordinary care in maintaining the premises in a reasonably safe condition, such
that the invitee will not unreasonably or unnecessarily be exposed to danger. Paschal
v. Rite Aid Pharmacy (1985), 18 Ohio St. 3d 45, 18 OBR 267, 480 N.E. 2d 474. The
owner must warn invitees of latent or concealed dangers, if the owner knows or has
reason to know of the hidden dangers, and invitees are expected to take reasonable
precautions to avoid dangers that are patent or obvious. Brinkman v. Ross (1993), 68
Ohio St. 3d 82, 1993 Ohio 72, 623 N.E. 2d 1175.
{¶ 11} All claims involving premises liability contemplate a plaintiff verifying the
location where the particular injury occurred in order to ascertain the owner of the
premises and therefore, identify the proper party defendant. In the instant claim, plaintiff
has persisted in failing to provide a location where her injury occurred other than to
state she was injured at a “picnic table.” Without establishing DNR or another state
entity as the owner of the premises where plaintiff was injured, this action cannot go
forward. Plaintiff has failed to offer any evidence to prove defendant owned or
maintained the premises where her injury incident occurred. Consequently, plaintiff’s
claim is dismissed.
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
SHANNON FOSTER
Plaintiff
v.
OHIO DEPARTMENT OF NATURAL RESOURCES
Defendant
Case No. 2009-07547-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, plaintiff’s claim is DISMISSED
without prejudice. Court costs are assessed against plaintiff.
________________________________
DANIEL R. BORCHERT
Deputy Clerk
Entry cc:
Shannon Foster Charles G. Rowan
4353 E. Lincoln Way Department of Natural Resources
Wooster, Ohio 44691 2045 Morse Road, Building D-3
Columbus, Ohio 43229-6693
RDK/laa
1/27
Filed 2/25/10
Sent to S.C. reporter 5/21/10