Opinion
No. 88-06352.
Decided October 11, 1989.
Mark J. Ross, for plaintiff.
Anthony J. Celebrezze, Jr., Attorney General, and William M. Mattes, for defendant.
On June 16, 1988, plaintiff, Bettie Hysell, filed this action against the defendant, Ohio Department of Rehabilitation and Correction, alleging it was negligent in permitting an unnatural accumulation of a foreign substance to form on the floor of a visiting room at the Southern Ohio Correctional Facility (hereinafter "SOCF"). Plaintiff stated that she slipped on this foreign substance and suffered injuries as a result thereof.
The defendant denies negligence in the care and maintenance of the floor in the visiting room at SOCF. On August 28, 1989, this action came on for trial solely on the issue of defendant's liability. Counsel for the parties presented evidence, testimony and arguments as to the facts and issues involved herein. Upon consideration of the record, the court renders the following findings of fact and conclusions of law.
On June 17, 1987, the plaintiff was visiting inmate Rudolph Alfred at SOCF in conjunction with her prison ministry program. After plaintiff had spoken with Alfred in the visiting room at SOCF for approximately one hour, she attempted to walk from the table at which she was seated to a vending machine located approximately ten to fifteen feet away. After plaintiff had taken about seven steps she suddenly slipped and fell onto the floor. The shoes plaintiff was wearing on the day of the fall had a heel measuring one to one and one-half inches in height. After plaintiff returned to the table she conversed with a corrections officer regarding the incident.
Both plaintiff and inmate Alfred testified that the following chain of events occurred on the day in question: plaintiff fell on a liquid substance, she was assisted initially by a fellow visitor, an institutional staff member proceeded to mop up the liquid substance, and an institutional staff member positioned a chair over the area where the fall occurred. The veracity of this testimony is of no consequence as the court is willing to assume, for the purposes of this opinion, that plaintiff fell on a liquid substance which was eventually removed from the floor by an institutional staff member and that a chair was subsequently placed over the scene of the fall.
As noted at the conclusion of opening statements, the court is willing to assume that plaintiff's legal status at the time of the incident was that of an invitee, hence following the analysis and logic employed by Judge Fred Shoemaker of this court in Blair v. Dept. of Rehab. Corr. (Feb. 13, 1989), Ct. of Claims No. 87-05166, unreported. In Blair, the plaintiff suffered personal injuries as a result of a fall which occurred in the parking lot of the Lebanon Correctional Institute where she had been visiting an inmate. Judge Shoemaker explicitly rejected the economic benefit test in distinguishing between invitees and licensees when holding that visitors to prison facilities are considered invitees. Therefore, plaintiff in the instant action will be considered an invitee for the purposes of this decision.
Plaintiff contends that defendant was negligent by allowing an unnatural accumulation of a foreign substance to form in the visiting room at SOCF. Plaintiff has the burden of proof to show by a preponderance of the evidence that the defendant was negligent under the circumstances. It has been accepted in Ohio that the essential elements of negligence are (1) a duty of care owed to the plaintiff, (2) a breach of that duty by a negligent act or omission, and (3) an injury proximately resulting from such breach. Di Gildo v. Caponi (1969), 18 Ohio St.2d 125, 47 O.O.2d 282, 247 N.E.2d 732.
The plaintiff being an invitee, the duty owed plaintiff by the defendant is strikingly similar to the duty owed to business clientele by the proprietor of a business. In Ohio, this duty is one of ordinary care to ensure the invitee's safety. S.S. Kresge Co. v. Fader (1927), 116 Ohio St. 718, 158 N.E. 174. More specifically, Ohio courts have held the following:
"* * * It is well established in this state that, in order to impose liability for injury to an invitee because of a dangerous condition of the premises resulting from a foreign substance on the floor, the condition must have been known to the owner or occupant, or have existed for such a time that it was the duty of the owner or occupant to know of it. * * *"
Tiberi v. Fisher Bros. Co. (1953), 96 Ohio App. 302, 303, 54 O.O. 313, 121 N.E.2d 694, 695. See also, Johnson v. Wagner Provision Co. (1943), 141 Ohio St. 584, 26 O.O. 161, 49 N.E.2d 925; Boles v. Montgomery Ward Co. (1950), 153 Ohio St. 381, 41 O.O. 403, 92 N.E.2d 9; Presley v. Norwood (1973), 36 Ohio St.2d 29, 65 O.O.2d 129, 303 N.E.2d 81. Consequently, plaintiff must prove that defendant was on notice of the condition of the floor in the visiting room at SOCF on June 17, 1987.
The legal concept of notice is of two distinguishable types — actual and constructive. The difference between these categories has been elucidated as follows:
"The distinction between actual and constructive notice is in the manner in which notice is obtained or assumed to have been obtained rather than in the amount of information obtained. Wherever from competent evidence the trier of the facts is entitled to hold as a conclusion of fact and not as a presumption of law that information was personally communicated to or received by a party, the notice is actual. Constructive notice is that which the law regards as sufficient to give notice and is regarded as a substitute for actual notice." In re Estate of Fahle (1950), 90 Ohio App. 195, 47 O.O. 231, 105 N.E.2d 429, paragraph two of the syllabus.
On the day in question, Corrections Officer Cathy Brogdon was assigned to supervise the visiting room at SOCF. Officer Brogdon testified that she was not informed by any individual present in the visiting room that a foreign substance had collected on the floor prior to plaintiff's fall. Furthermore, Officer Brogdon stated that she did not observe any substance on the floor near the area where plaintiff fell during various visual inspections of the area throughout the day. Neither plaintiff nor Alfred personally notified any employees or agents of defendant that a foreign substance was on the floor prior to plaintiff's fall. Thus, plaintiff has failed to prove by a preponderance of the evidence that defendant was on actual notice that a foreign substance was located on the floor of its visiting room at SOCF on June 17, 1987.
To find constructive notice there must be "some evidence" that the substance was on the floor prior to the fall for a sufficient period of time to permit a reasonable inference of notice. Banks v. Quay (Aug. 29, 1989), Franklin App. No. 88AP-390, unreported, 1989 WL 99439.
Plaintiff testified that she was unaware that a foreign substance was on the floor until immediately after she had fallen. Plaintiff did not observe any foreign substance on the floor when she entered the room or during the hour prior to her fall. Inmate Alfred also testified that he was unaware that a foreign substance was located on the floor until after plaintiff had fallen. Plaintiff has failed to prove by a preponderance of the evidence that defendant was on constructive notice of the condition of the floor where plaintiff fell in the visiting room at SOCF.
In conclusion, the court finds that the plaintiff has failed to prove by a preponderance of the evidence that defendant's conduct, in its care and maintenance of the visiting room in question, constituted a breach of its duty of ordinary care. Therefore, the court concludes that defendant was not negligent under the circumstances. Accordingly, the defendant is not liable for plaintiff's injury and judgment is hereby rendered for the defendant and the complaint is dismissed.
Judgment for defendant.
RUSSELL LEACH, J., retired, of the Franklin County Municipal Court, sitting by assignment.