Opinion
No. 88-12654.
Decided January 16, 1990.
Thomas S. Hodson, for plaintiff.
Anthony J. Celebrezze, Jr., Attorney General, and Susan M. Sullivan, for defendant.
On October 11, 1988, plaintiff, Vernon Covert, filed a complaint against the defendant, the Ohio Department of Mental Health. Plaintiff contends that an agent of defendant negligently created a dangerous situation on defendant's premises by placing water and a cleaning solution on a floor where plaintiff subsequently slipped and fell. Plaintiff asserts that as a direct and proximate cause of the acts of defendant's agent he suffered personal injuries.
On November 14, 1989, this action came before this court for trial on the sole issue of liability. The court has duly considered the evidence and arguments of counsel and renders the following decision.
On October 13, 1986, plaintiff was a resident patient at the Athens Mental Health Center ("AMHC"), an institution operated and controlled by the defendant for the treatment of the mentally ill. Plaintiff was residing on the Acute Intensive Treatment Ward (now known as ward "3-West"). Most of the patients on this ward were responsible for attending to their own laundry needs. On the day in question, plaintiff was busy washing his clothes in the ward laundry room and had walked to the laundry room on occasion. The flooring on plaintiff's ward at that time was partially carpeted; the remaining areas, specifically the hallway, had a terrazzo floor, i.e., flooring of small chips of marble set in cement and polished. Persons walking to enter the dining room or the laundry room had to traverse the terrazzo flooring of the hallway.
Leland Turner, employed as a mental health technician at AMHC, reported for work on said date at approximately 3:00 p.m. In his capacity as a technician, Turner assisted the medical staff with patient care. However, due to a shortage of maintenance personnel Turner cleaned and mopped the dining room floor on the day in question. Plaintiff assisted Turner with the task by placing the dining room chairs on tables and sweeping the floor. He watched Turner mop the floor and then returned to his room. At approximately 3:40 p.m. he proceeded to the laundry room to check on his wash. As plaintiff stepped from the carpeted area to the terrazzo flooring he slipped and fell onto the floor. He was then assisted to his room by AMHC personnel.
The evidence indicates that Turner had mopped a portion of the hallway in question. Plaintiff contends that Turner, AMHC's agent, caused the floor to be wet and slippery when he mopped the area and that he should have provided notification to patients of the floor's condition. Plaintiff testified that there were no signs to indicate that the area was wet and no evidence to the contrary was presented. Plaintiff, however, also testified that the terrazzo floor had a shiny, wet appearance due to the polished tile and that it was inherently slippery.
Katherine Gillet, a mental health technician at AMHC, testified, via trial deposition, that she started to mop up a liquid spill on the hallway floor but that Turner completed the task. Gillet stated that she subsequently warned plaintiff, while he was on the carpeted area, that the terrazzo flooring was wet and not to walk on it until it dried. Plaintiff did not acknowledge nor heed her warning and therefore walked, slipped and fell onto the tiled floor. Gillet testified that plaintiff was "goin' pretty — he was comin' pretty fast." She was obviously unsuccessful in restraining plaintiff from his desired path.
Turner and Ameilia Leach, an administrator at AMHC, offered testimony, via trial depositions, pertaining to the composition of the flooring on the ward. Turner also described some of his activities on the day in question but had difficulty recalling plaintiff's accident. Leach's testimony concerned the flooring, housekeeping responsibilities and her comments on the incident report.
Plaintiff has the burden of proof to demonstrate by a preponderance of the evidence that the defendant was negligent under the circumstances. In order for plaintiff to prove that defendant was negligent, he must show existence of a duty, breach of that duty, and damage or injury as a proximate result of the breach. Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 21 O.O.3d 177, 423 N.E.2d 467; Di Gildo v. Caponi (1969), 18 Ohio St.2d 125, 47 O.O.2d 282, 247 N.E.2d 732.
The doctrine of res ipsa loquitur has no application to the situation here involved. Negligence is not to be presumed, and no inference of actionable negligence arises from the mere fact that the plaintiff slipped and fell as he attempted to walk across the hallway. The fact that his injury was occasioned by some breach of duty must be affirmatively proven.
The court finds that the plaintiff's legal status under the circumstances was that of an invitee. As an invitee, defendant's duty is one of ordinary or reasonable care so that the premises are in a reasonably safe condition for use by plaintiff. S.S. Kresge Co. v. Fader (1927), 116 Ohio St. 718, 158 N.E. 174, 58 A.L.R. 132; Durst v. Van Gundy (1982), 8 Ohio App.3d 72, 8 OBR 103, 455 N.E.2d 1319. This duty, however, does not make the landowner or occupier an insurer of the invitee's safety. The invitee is expected to demonstrate reasonable care for his own well-being. S.S. Kresge Co., supra. In Sidle v. Humphrey (1968), 13 Ohio St.2d 45, 42 O.O.2d 96, 233 N.E.2d 589, 32 A.L.R.3d 1, paragraph one of the syllabus, the court held:
"An occupier of premises is under no duty to protect a business invitee against dangers which are known to such invitee or are so obvious and apparent to such invitee that he may reasonably be expected to discover them and protect himself against them."
The conduct in question must be viewed in light of all the surrounding circumstances, as shown by the evidence in the case. The question is whether the evidence affirmatively shows that defendant negligently failed to exercise ordinary care to have its premises in a reasonably safe condition and/or failed to give plaintiff timely notice of some concealed peril. Upon review, the court finds that the question must be answered in the negative.
It is evident from the record that plaintiff knew, from prior experience, that the terrazzo floor was slippery in nature and that caution should be exercised. In addition, Gillet testified that she warned plaintiff that the area may be dangerous to traverse. Plaintiff asserts that no cautionary statement was provided.
Under Ohio law, conflicting testimony presents an issue of fact which must be determined by the trier of fact, the court in this case. See McQueen v. Goldey (1984), 20 Ohio App.3d 41, 20 OBR 44, 484 N.E.2d 712; Barnett v. Hills (App. 1947), 50 Ohio Law Abs. 208, 79 N.E.2d 691; and State v. Robinson (App. 1958), 83 Ohio Law Abs. 259, 12 O.O.2d 259, 168 N.E.2d 328. The court finds that there is no reason to doubt the testimony of Gillet pertaining to her notice to plaintiff prior to his stepping on the terrazzo floor. Plaintiff was walking in a brisk manner towards the laundry room and failed to exercise due care for his own well-being. Albeit defendant's agent failed to place a sign in the area, the court finds that plaintiff was inattentive to the circumstances and did not protect himself from an obvious danger — the inherent slippery nature of the tiled floor.
Under the comparative negligence statute, R.C. 2315.19, the inattentiveness of plaintiff must be weighed against any negligence of defendant. The general nature of contributory negligence has been defined in the following manner:
"Negligence and contributory negligence are governed by the same basic rules. They are both measured by the same standard — the failure to exercise ordinary care. It has been said that contributory negligence is a matter of some fault or departure from the standard of conduct of the reasonable man, however unaware, unwilling, or even protesting the injured party may have been. Contributory negligence is defined to be such an act or omission on the part of a plaintiff, amounting to a want of ordinary care as, concurring or co-operating with the negligent act of the defendant, is a proximate cause or occasion of the injury complained of. It is the want of ordinary care by a person injured by the negligence of another, concurring with such negligence, and thus contributing to the injury as a proximate cause." (Footnotes omitted.) 70 Ohio Jurisprudence 3d (1986) 144-145, Negligence, Section 65.
In this case, plaintiff had the responsibility to evaluate the situation in a manner as would a reasonable person under similar circumstances and act in a way which avoided harm.
"A person must use ordinary care for his own safety and, it follows, must not heedlessly expose himself to danger or voluntarily expose himself to unnecessary peril. Where there is a known danger, whoever encounters it voluntarily and unnecessarily cannot be regarded as exercising ordinary prudence, and he does so at his own risk. * * *" (Footnotes omitted.) Id. at 169, Section 78.
It is the court's opinion that the defendant should have cautioned patients with the use of a sign; however, it was or should have been apparent to plaintiff, i.e., due to Gillet's warning and the inherent slippery nature of the polished tile, that proper care had to be exercised. The court finds that plaintiff's quick gait and inattentiveness to the surrounding circumstances was the primary proximate cause of his accident.
In compliance with R.C. 2315.19, the court finds that the percentage of negligence that directly and proximately caused the accident, attributable to each party in relation to one hundred percent, is as follows: plaintiff is found to be seventy percent negligent and the defendant is found to be thirty percent negligent.
The burden fell upon plaintiff to establish that defendant's actionable negligence was greater than his own and proximately caused his injury. In view of the above, the court concludes that plaintiff failed to carry this burden by a preponderance of the evidence, and it follows that defendant is entitled to a judgment dismissing the complaint.
Judgment for defendant.
FRED J. SHOEMAKER, J., retired, of the Court of Common Pleas of Franklin County.