Daiker-Middaugh v. Cleveland State Univ.

[Cite as Daiker-Middaugh v. Cleveland State Univ., 2011-Ohio-7056.]
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
PAMELA DAIKER-MIDDAUGH
Plaintiff
v.
CLEVELAND STATE UNIVERSITY
Defendant
Case No. 2011-08491-AD
Deputy Clerk Daniel R. Borchert
MEMORANDUM DECISION
{¶1} Plaintiff, Pamela Daiker-Middaugh, filed this action against defendant,
Cleveland State University (CSU), alleging that on two occasions, “large rodents
(believed to be rats) destroyed the engine harness of my 2008 Toyota Pilot while parked
in the CSU East 19th Street Garage. The damage to the Pilot on both days was so
substantial that, according to the Honda Motorcars mechanics, it occurred where the
vehicle was parked-in the CSU lot.” Plaintiff implied that the damage to the automobile
was proximately caused by negligence on the part of defendant in failing to maintain the
parking garage premises. Plaintiff requested damage recovery in the amount of
$1,000.00, her insurance coverage deductible for vehicle repair costs incurred on
January 12 and March 15, 2011, when she paid to have her car repaired. The filing fee
was paid.
{¶2} Plaintiff submitted copies of the invoices prepared by Honda Motorcars on
each of the two dates listed in the complaint. The January 12, 2011 report contains the
following notation: “running poorly * * * found a portion of engine main wiring harness
shredded by rodents.” The March 15, 2011 comments note that: “aggressive rodents
again destroyed the main engine wire harness * * * several (more) locations since the
first repair. Replaced harness. * * * [Plaintiff] has a bag of recovered ‘Hershey Kisses’
found in the valley between cylinder banks!”
{¶3} Defendant filed an investigation report disputing the allegations in
plaintiff’s complaint based on the fact plaintiff “has not produced any evidence
demonstrating that rats are indeed located in the particular garage at issue.” Defendant
contended that neither plaintiff nor her mechanic can “definitively state that rodents are
present in that garage.” In addition, defendant submitted a report from a pest control
company, Terminex, whose employee inspected the garage and found no indication of
“past or present rodent activity.” In sum, defendant argued that plaintiff presented
insufficient evidence to prove the damage to her car was done by rodents, or that the
damage occurred while plaintiff’s car was parked on CSU’s premises. Defendant
asserted that plaintiff failed to state an actionable claim against CSU in that plaintiff
failed to prove the elements necessary to prevail on a negligence claim.
{¶4} Plaintiff did not file a response.
{¶5} 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.
{¶6} 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.
{¶7} 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.
{¶8} 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.
{¶9} “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.
{¶10} All claims involving premises liability contemplate a plaintiff verifying the
particular injury occurred on defendant’s premises. See Foster v. Ohio Dept. of Natural
Resources, Ct. of Cl. No. 2009-07547-AD, 2010-Ohio-2314. In the instant case, plaintiff
has failed to provide sufficient probative evidence to verify that the damage was caused
by rodents or that the damage occurred while plaintiff’s car was parked on CSU’s
premises. Consequently, plaintiff’s claim is denied.
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
PAMELA DAIKER-MIDDAUGH
Plaintiff
v.
CLEVELAND STATE UNIVERSITY
Defendant
Case No. 2011-08491-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 defendant. Court costs are assessed against plaintiff.
________________________________
DANIEL R. BORCHERT
Deputy Clerk
Entry cc:
Pamela Daiker-Middaugh Sonali B. Wilson, General Counsel
6411 Oakes Road Cleveland State University
Brecksville, Ohio 44141 2121 Euclid Avenue
Administrative Center, Suite 327
Cleveland, Ohio 44115-2214
SJM/laa
10/12
Filed 11/2/11
Sent to S.C. reporter 3/30/12