Hornung v. Miami Univ.

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[Cite as Hornung v. Miami Univ., 2006-Ohio-7138.] IN THE COURT OF CLAIMS OF OHIO GAYE HORNUNG : Plaintiff : v. : CASE NO. 2005-10390-AD MIAMI UNIVERSITY : MEMORANDUM DECISION Defendant : : : : : : : : : : : : : : : : : : {¶ 1} On March 22, 2005, at approximately 5:30 p.m., Tami Hornung suffered personal injury when she tripped and fell while entering Shriver Center, a building located on the campus of defendant, Miami University. Tami Hornung explained she was going to the Shriver Center to purchase books and noted, [a]s I opened the door, the toe of my shoe got caught on a half step into the building and I tripped, falling directly onto my right elbow. the According to Tami Hornung, the step at the entrance to Shriver Center is dangerous and warning signs of potential danger should have been posted, but were not. the trip and fall incident, Tami Hornung received this After medical treatment and remedial therapy for a fractured elbow. {¶ 2} Gaye responsibility Hornung, for her the mother daughter s of Tami Hornung, outstanding related to the March 22, 2005, incident. assumed medical bills Gaye Hornung filed this complaint seeking to recover $1,251.88, the amount owed to medical providers for her daughter s treatment and care. plaintiff in this claim, Gaye Hornung has asserted As Tami Hornung s injuries were proximately caused by negligence on the part of defendant, University, condition on its premises. in maintaining a defective The filing fee was paid. {¶ 3} Defendant pointed out entrance to the Shriver Center is through one of five separate sets of doors. Defendant related [t]he thresholds of the doors range from flush with the ground to 5". Photographs depicting doors to the Shriver Center where steps were present were submitted. One photograph shows a main entrance with two sets of double doors and a concrete or stone step up five entrance. inches at the door s base from the sidewalk Another photograph shows a double door entrance area with a step up of about two inches from the sidewalk approach to the door entrance. None of the stepped areas at the entrances appear to be in disrepair. All stepped areas appear to be clearly and distinctly visible to pedestrian traffic entering Shriver Center. Defendant asserted these photographs establish the entrances to the Shriver Center were not defective and were properly maintained. {¶ 4} To establish a cause of action for negligence, a plaintiff must prove the existence of a duty, breach of that duty, and an injury proximately caused by that breach. Texler v. D.O. Summers Cleaners & Shirt Laundry Co. (1998), 81 Ohio St. 3d 677, 680. Under the common law of premises liability, the status person of a who enters upon the land of another determines the scope of the duty the responsible party owes the entrant. Shump v. First Continental-Robinwood Assoc. (1994), 71 Ohio St. 3d 414, 417. Tami Hornung would In the instant claim, it is undisputed be circumstances presented. considered an invitee under the {¶ 5} An owner or occupier of a premises owes business invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition so that invitees are unnecessarily and unreasonably exposed to danger. not Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St. 3d 203. However, the owner or occupier is not an insurer of an invitee s safety and owes dangers no on Humphrey duty the to protect property. (1968), 13 Ohio invitees Id. St. at 2d from 203-204, 45, open and citing paragraph obvious Sidle v. of the one syllabus. Courts reason that, because of the open and obvious nature the their of invitees hazard, to business discover the measures to protect themselves. (1992), 64 Ohio St. 3d 642, 644. owners hazard may and reasonably take expect appropriate Simmers v. Bentley Constr. Co. The open and obvious doctrine is determinative of the threshold issue, the landowner s duty. Armstrong v. Best Buy, Inc., 99 Ohio St. 3d 79, 2003-Ohio-2573, at ¶13. If an alleged hazard is open and obvious, whether the plaintiff can prove the elements of negligence other than duty is superfluous. Horner v. Jiffy Lube Internatl., Inc., Franklin App. No. 01AP-1054, 2002-Ohio-2880, at ¶17. Because the open and obvious doctrine is determinative of the threshold issue of duty, we begin our analysis with that issue. {¶ 6} Open and obvious hazards are those hazards that are neither hidden nor concealed from view and are discoverable by ordinary inspection. 3d 49, 50-51. Parsons v. Lawson Co. (1989), 57 Ohio App. [T]he dangerous condition at issue does not actually have to be observed by the plaintiff in order for it to be an open and obvious condition under the law. Rather, the determinative issue is whether the condition is observable. Lydic v. Lowe s Companies, Inc., Franklin App. No. 01AP-1432, 2002-Ohio-5001, at ¶10. whether an invitee Put another way, the crucial inquiry is exercising ordinary care under the circumstances would have seen and been able to guard herself against the condition. Kidder v. The Kroger Co., Montgomery App. No. 20405, 2004-Ohio-4261, at ¶11, citing Youngerman v. Meijer, Inc. (Sept. 20, 1996), Montgomery App. No. 15732. The Supreme Court of Ohio has cautioned that [c]ases of this type sometimes involve narrow distinctions and a decision in each case depends largely on the facts of the particular case. Lawson v. Columbia Gas of Ohio, Inc. (1984), 20 Ohio App. 3d 208, 209-210, quoting Boles v. Montgomery Ward & Co. (1950), 153 Ohio St. 381, 384. {¶ 7} Some argument has been introduced that the injured party, Tami Hornung, could not see the step at the door entrance to Shriver Center because she was hurried and her arms were full. condition and the fact the injured party may have voluntarily impaired her sightline. The available The open defense and obvious doctrine is nature not of negated the by court, in the instant claim finds, Tami Hornung should have been able to guard herself against possible injury from an open and obvious condition. Consequently, plaintiff s claim is denied since defendant owed no duty to the injured party under the facts and circumstances shown. IN THE COURT OF CLAIMS OF OHIO GAYE HORNUNG : Plaintiff : v. : CASE NO. 2005-10390-AD MIAMI UNIVERSITY : ENTRY OF ADMINISTRATIVE DETERMINATION Defendant : : : : : : : : : : : : : : : : : : Having considered all the evidence in the claim file and, for the reasons concurrently defendant. set forth herewith, in the judgment is memorandum rendered decision in filed favor Court costs are assessed against plaintiff. of The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal. ________________________________ DANIEL R. BORCHERT Deputy Clerk Entry cc: Gaye Hornung 5904 Reily-Millville Road Oxford, Ohio 45056 Paul S. Allen Court of Claims Coordinator Miami University Roudebush Hall, Room 14 Oxford, Ohio 45056 Plaintiff, Pro se For Defendant RDK/laa 2/8 Filed 2/28/06 Sent to S.C. reporter 3/24/06

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