Sanborn v. Univ. of Cincinnati

[Cite as Sanborn v. Univ. of Cincinnati, 2023-Ohio-2657.]
IN THE COURT OF CLAIMS OF OHIO
CASIE SANBORN Case No. 2022-00222JD
Plaintiff Magistrate Scott Sheets
v. DECISION OF THE MAGISTRATE
UNIVERSITY OF CINCINNATI
Defendant
{¶1} Plaintiff asserts a negligence claim for injuries she sustained on July 28, 2018
when she fell while returning to her vehicle after she and her family attended a soccer
match at defendant’s Nippert Stadium. The case was bifurcated and the issue of liability
was tried before a magistrate on June 20, 2023. In addition to plaintiff, defendant’s
Director of Facilities, Grounds, Moving, and Transportation, Elizabeth Rains, and Senior
Construction Administrator, Doug Newell, testified at trial. Several photographs, marked
as joint exhibits, were admitted into evidence. For the following reasons, the magistrate
recommends judgment in defendant’s favor.
Findings of Fact
{¶2} On July 28, 2018, plaintiff attended a soccer match on defendant’s campus
with her husband and four children. While walking to the parking garage after the game,
plaintiff fell and injured her left leg after she left the sidewalk to cut through a grassy, hilly,
and unlit tree grove. Defendant’s college of business was under construction and
adjacent to the area as well. However, a fence enclosed the entire construction zone and
signs were present to detour pedestrians around the construction. Plaintiff’s fall occurred
in an area outside of this construction zone, where no construction activity had taken
place.
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{¶3} Plaintiff left the soccer venue at approximately 9:30 or 9:45; it was dark.
Plaintiff and her family walked around the fenced-off construction area, following the
sidewalk to the left depicted in Exhibit C, toward their parked car. As depicted in Exhibit
J, lights lined the sidewalk. Plaintiff, while carrying her 4-year-old child, followed her
husband off the sidewalk to cut through an adjacent dark grassy area that, in addition to
being unlit, contained hills and several large trees.
{¶4} As plaintiff descended one of the hills, which she approximated as 3-4 feet
high, plaintiff’s left leg and foot got caught in a grass covered hole large enough to engulf
her entire foot. No pictures of the hole were offered at trial and plaintiff did not testify to
its exact dimensions or any other physical characteristics. However, plaintiff testified that
she did not see the hole before stepping into it and that, as grass concealed it, she did
not believe that she would have been able to see it even in daylight. Plaintiff’s left leg
eventually required surgery.
{¶5} Plaintiff fell in the area encompassed within the red circle in Exhibit A, after
departing the curved sidewalk near the bottom of the circle. Exhibits B-1 and B-2 depict
the area during the daytime from ground level. Exhibit J is an elevated picture of the area
from an adjacent building. It depicts the area on July 28, 2018, at 9:46 p.m. Plaintiff’s fall
occurred somewhere in the dark group of trees near the center of this picture that are
between the partially constructed business college at the top and the curvy sidewalk that
runs along the trees’ left side.
{¶6} Elizabeth Rains, defendant’s Director of Facilities, Grounds, Moving and
Transportation, oversees maintenance of defendant’s grounds. She explained that the
grassy, mounded area where plaintiff fell is a tree grove intended to provide a natural
aesthetic to defendant’s campus and is not intended for pedestrian traffic. Mounds were
intentionally placed in the tree grove and accessible sidewalks surround the tree grove to
discourage pedestrian travel and to prevent “cow paths” caused by foot traffic through
natural areas. The sidewalks are lit. However, there are no warning signs in the tree
grove where plaintiff fell and defendant was aware that pedestrians traversed this area.
{¶7} Ms. Rains is notified of all repairs to defendant’s grounds as well as reported
injuries that occur on and/or are related to grounds. She has access to the work order
system where repairs are recorded. Ms. Rains received no reports of any injuries in the
Case No. 2022-00222JD -3- DECISION
area where plaintiff fell before July 28, 2018. She could locate no record of any damage
or work in the area leading up to plaintiff’s injury.
{¶8} Grounds crew employees traverse campus on a daily basis performing their
various job duties and report hazards and needed repairs. Other staff, as well as students
and vistiors, can also report hazards on campus. Additionally, there are enviornmental
health and safety employees who perform daily “walkabouts,” inspecting defendant’s
campus for possible hazards. Rains also personally performs a walkabout once a week.
These walkabouts are not limited to sidewalks.
Conclusions of Law
{¶9} To prevail on a claim for negligence, plaintiff must prove by a preponderance
of the evidence that (1) the defendant owed the plaintiff a duty, (2) the defendant breached
that duty, and (3) the breach of the duty proximately caused the plaintiff’s injury.” Jenkins
v. Ohio Dept. of Rehab & Corr., 10th Dist. No. 12AP-787, 2013-Ohio-5106, ¶ 6. It is well
established that a preponderance of the evidence “‘means evidence that is more
probable, more persuasive, or of greater probative value.’” Brothers v. Morrone-O’Keefe
Dev. Co., LLC, 10th Dist. Franklin No. 06AP-713, 2007-Ohio-1942, ¶ 49, quoting Manogg
v. Stickle, 5th Dist. Licking NO. 99CA56, 1999 Ohio App. LEXIS 6322 (Dec. 29, 1999).
{¶10} Under Ohio law, the duty owed by an owner or occupier of premises
generally depends on whether the injured person is an invitee, licensee, or trespasser.
Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315, 662 N.E.2d
287 (1996). Though seemingly not in dispute, the magistrate finds that plaintiff was an
invitee on July 28, 2018. See Brown v. Cleveland Baseball Co., 158 Ohio St.1, 106
N.E.2d 632 (1952). An owner or occupier of premises generally owes 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, ¶ 5.
{¶11} In order “to establish that the owner or occupier failed to exercise ordinary
care, the invitee must establish that: (1) the owner of the premises or his agent was
responsible for the hazard of which the invitee has complained; (2) at least one of such
persons had actual knowledge of the hazard and neglected to give adequate notice of its
Case No. 2022-00222JD -4- DECISION
existence or to remove it promptly; or (3) the hazard existed for a sufficient length of time
to justify the inference that the failure to warn against it or remove it was attributable to a
·lack of ordinary care.” Price v. United Dairy Farmers, Inc., 10th Dist. Franklin No. 04AP-
83, 2004-Ohio-3392, ¶ 6. Indeed, if defendant failed “to conduct a reasonable inspection
of the premises, [it] will be charged with constructive knowledge of any latent defect which
[it] would have discovered had [it] conducted the reasonable inspection” and it “may face
liability for failing to warn the invitee of the latent defect or otherwise make the premises
reasonably safe.” Rowe v. Pseekos, 10th Dist. Franklin No. 13AP-889, 2014-Ohio-2024,
¶ 7. However, a landowner’s duty is to “undertake reasonable inspections, not to inspect
everything that might conceivably cause injury.” (Emphasis sic.) Aldamen v. Sunburst
USA, Inc., 10th Dist. Franklin No. 08AP-235, 2008-Ohio-5071, ¶ 17, quoting Tarkany v.
Bd. of Trustees of Ohio State Univ., 10th Dist. Franklin No. 90AP-1398, 1991 Ohio App.
LEXIS 2648, 5 (June 4, 1991). Moreover, “a landowner who undertakes an inspection is
not held to a 100 percent success rate, if the inspection was reasonable under the
circumstances.” Rowe at ¶ 8.
Decision
{¶12} Based on the predicative facts set forth, supra, the magistrate makes the
following additional factual findings as well as his recommendation for judgment to the
court.
{¶13} At trial, plaintiff conceded that defendant lacked actual notice. The
magistrate also finds that plaintiff failed to prove by the greater weight of the evidence
that defendant had constructive notice. Plaintiff presented no evidence as to the length
of time that the hole existed. In addition, there had been no hazards discovered or
reported and no repairs in the tree grove before plaintiff’s accident. Thus, no
circumstances existed that would have imparted notice to defendant of a general problem
with holes or other tripping hazards in the area.
{¶14} There is also no evidence that nearby construction somehow imparted
constructive notice. Mr. Newell testified that the fence separated all construction activity
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from areas outside the fence and that no construction activity took place in the tree grove
where plaintiff fell. Plaintiff presented no evidence that construction activity caused or
contributed to the hole in which she fell.
{¶15} Moreover, the magistrate finds plaintiff failed to prove by the greater weight
of the evidence that defendant failed to conduct reasonable inspections, which might also
have imparted constructive notice. Defendant presented evidence establishing that, in
addition to reports from employees who perform daily grounds’ work, there are designated
environmental health and safety employees who perform daily walkabouts looking for
hazards. Ms. Rains also walks the campus on a weekly basis. The magistrate also notes
that plaintiff testified that grass completely covered the hole that caused her fall. Thus,
the magistrate finds that the hole would have been discovered only through a very close
inspection of the exact area where plaintiff fell. This is simply not what a reasonable
inspection or the duty of ordinary care requires. The evidence establishes that several of
defendant’s employees undertake regular and frequent visual inspections and the
magistrate finds that defendant’s visual inspection routine is reasonable under the
circumstances. See Tarkany at 6 (A routine visual inspection can satisfy the duty of
ordinary care.); Rowe at ¶ 9-11 (A cursory, visual inspection does not breach the duty to
conduct a reasonable inspection.)
{¶16} Consequently, lacking notice of the hole that caused plaintiff’s fall, defendant
did not breach its duty of ordinary care despite the absence of warning signs in the tree
grove. The hills and darkness themselves served as an obvious warning of their inherent
hazards. Moreover, plaintiff did not trip on a tree root or on one of the hills in the tree
grove; she stepped into a concealed hole. If defendant had notice of the hole, then it
would have had a duty to remedy the condition or warn of it, but it lacked notice and,
therefore, it breached no duty.
{¶17} For the foregoing reasons, the magistrate recommends judgment in
defendant’s favor.
{¶18} A party may file written objections to the magistrate’s decision within 14 days
of the filing of the decision, whether or not the court has adopted the decision during that
14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files objections,
any other party may also file objections not later than ten days after the first objections
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are filed. A party shall not assign as error on appeal the court’s adoption of any factual
finding or legal conclusion, whether or not specifically designated as a finding of fact or
conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically
objects to that factual finding or legal conclusion within 14 days of the filing of the decision,
as required by Civ.R. 53(D)(3)(b).
SCOTT SHEETS
Magistrate
Filed June 27, 2023
Sent to S.C. Reporter 7/31/23