[Cite as Quaye v. N. Market Dev. Auth., Inc., 2017-Ohio-7412.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Emmanuel Quaye,                                      :

                 Plaintiff-Appellant,                :
                                                                       No. 15AP-1102
v.                                                   :             (C.P.C. No. 14CVC-10496)

North Market Development                             :           (REGULAR CALENDAR)
Authority, Inc., et al.,
                                                     :
                 Defendants-Appellees.
                                                     :



                                           D E C I S I O N

                                     Rendered on August 31, 2017


                 On brief: Malek & Malek, LLC, and James Malek, for
                 appellant. Argued: James Malek.

                 On brief: David Heinlein, for appellees Scott Davis and
                 North Market Development Authority, Inc. Argued:
                 David Heinlein.

                  APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.
        {¶ 1} Plaintiff-appellant, Emmanuel Quaye, appeals from a judgment of the
Franklin County Court of Common Pleas finding defendant-appellee, Scott Davis, not liable
on Quaye's claim of negligence. Quaye presents the following sole assignment of error for
our review:

                 The trial court erroneously determined that Plaintiff failed to
                 prove by a preponderance of the evidence, that Defendant-
                 Appellee Scott Davis acted negligently on August 12, 2012.


        {¶ 2} For reasons that follow, we affirm.
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No. 15AP-1102
I. FACTS & PROCEDURAL HISTORY
       {¶ 3} On October 10, 2014, Quaye filed a complaint against the North Market
Development Authority, Inc. ("North Market"), Davis, and the administrator of the Ohio
Bureau of Workers' Compensation ("BWC"). The facts giving rise to the complaint occurred
on August 12, 2012, when Quaye was performing cleaning services at the North Market
premises on behalf of his employer, D&J Master Clean, Inc.
       {¶ 4} Quaye alleged in the complaint he "was performing work in a utility closet"
when Davis, a North Market maintenance employee, came "into the utility closet where
[Quaye] was cleaning and proceeded to change the ballast or fluorescent lamp contained
within the fluorescent light fixture directly above [Quaye's] head." (Oct. 10, 2014 Compl. at
¶ 14-15.) Quaye alleged that, while Davis "was replacing the ballast or fluorescent lamp he
caused it to fall, striking [Quaye] in the head," resulting in an open wound to Quaye's left
scalp, a concussion, and cervical sprain and strain. (Compl. at ¶ 17.)
       {¶ 5} Quaye asserted that Davis was negligent in failing to "use ordinary care when
replacing a fluorescent lamp or ballast," and that the North Market was responsible for
Davis' negligence under respondeat superior. (Compl. at ¶ 34.) Quaye also alleged that the
North Market was negligent in hiring, training, supervising, and failing "to instruct its
employees and agents on proper procedures when replacing a fluorescent lamp or ballast."
(Compl. at ¶ 30.) Quaye stated that the BWC might have an interest in any amount Quaye
recovered from defendants.
       {¶ 6} Quaye filed Davis' deposition on October 7, 2015, and defendants filed
Quaye's deposition on October 9, 2015. The court held a bench trial on the matter on
October 14, 2015, at which Quaye and Davis presented opposing versions of how the
incident occurred.
       {¶ 7} At the time of the incident, Davis had been a North Market employee for 35
years. Davis stated that he had changed thousands of light bulbs at the North Market over
that period of time. Davis described the closet where the incident occurred as a "small"
janitor's closet, "probably about like 18 feet. And they * * * got shelves where they put the
trash bags and the towels underneath and everything like that." (Oct. 14, 2015 Tr. at 36.)
The light fixture is a "four-foot fluorescent" light fixture which hangs from the ceiling by
chains. (Tr. at 128.) The light hangs "over the shelving units that are behind that door."
(Tr. at 134.)
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No. 15AP-1102
          {¶ 8} Quaye explained that, on August 12, 2012, he arrived at the North Market at
6:00 p.m. and signed his "name for the register." (Tr. at 50-51.) After he signed in, Quaye
met with his supervisor who told Quaye what he was "supposed to do that day." (Tr. at 53.)
Quaye proceeded to the janitor's closet to retrieve a "trash can and trash bags and a rag" in
order to "start to pick up the trash and clean the tables." (Tr. at 50-51.) Once inside the
closet, Quaye began gathering old, dirty "rag[s] that we ha[d] been using," for his supervisor
to take "to cleaning." (Tr. at 54-55.) At his deposition, Quaye stated that both he and his
supervisor "went to the closet," and "we're there when Scott [brought] the stepladder to the
door [of the closet] that--[he] and [his] supervisor were in." (Dec. 11, 2014 Quaye Depo. at
11-12.) At trial, Quaye testified that he was "alone" and was "the only one in the closet." (Tr.
at 54.)
          {¶ 9} Quaye stated that he had "laid down" to gather the rags which were on the
floor, when he heard "a noise with the ladder." (Tr. at 55.) Quaye was "squat[ted] down,"
when Davis "opened the door and put the ladder in" the closet. (Tr. at 95-96.) Quaye
explained that Davis "just pushed the ladder and put the ladder inside. He's climbing up
when I was down." (Tr. at 56-57.) Quaye tried to "raise up [his] head," and "[a]ll the
structure come down on [his] head." (Tr. at 57-58.)
          {¶ 10} Quaye "never said nothing" to Davis throughout the entire time that Davis
entered the closet, set up the ladder, climbed up the ladder, and removed the light bulbs.
(Tr. at 92.) Quaye stated that there was no "possible way" that Davis did not see him in the
closet, as "the closet is not big. It's just a tiny closet. So immediately if you're inside the
closet, you're supposed to see." (Tr. at 80.)
          {¶ 11} Quaye explained that he was "somewhere in between the edge of that ladder"
and a "mop bucket," when the accident occurred. (Tr. at 95-96.) Reviewing a diagram of
the closet, Quaye identified that he was on the opposite side of the closet and "a couple of
feet from where" the light was located. (Def.'s Ex. A; Tr. at 94, 101-02.) Ed Doersam, a
certified electrician who fixed the light the day after the incident, explained that, because
the light fixture hung over the shelves, if the light fixture "were to come down at all it
would land on top of the shelving unit." (Tr. at 134.) Quaye asserted that the "entire light
structure came down on [his] head," but also stated that "the metal that is in front of the
light, it came down on [him]." (Tr. at 96, 101.)
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No. 15AP-1102
       {¶ 12} Davis stated that he first saw Quaye on August 12, 2012 when Quaye came
"off the elevator and" went the "opposite way" from Davis. (Tr. at 31, 39.) Davis then went
to the closet to change the light. Davis "went in the room. And [he] checked around and
[he] didn't see nobody inside the room." (Tr. at 31.) Davis confirmed that there "wasn't
nobody in that room when [he] went in that room and changed them bulbs," and
specifically that there "was nobody underneath that ladder" when he set it up. (Tr. at 31,
37.)
       {¶ 13} There are "two light bulbs" in the light fixture, and Davis explained that "you
have to * * * twist the bulbs to get them out." (Tr. at 27, 29.) Davis was using a 6-foot-tall
ladder, the ceiling was between 12 and 13 feet high, and the light hung down from the ceiling
by a couple feet. A metal reflector is positioned above the light bulbs on the light fixture,
and the "light bulbs have to be taken out before" the metal reflector can be detached from
the fixture. (Tr. at 124.) When Davis ascended the ladder, he had his "back to the door" of
the janitor's closet. (Dec. 11, 2014 Davis Depo. at 18.)
       {¶ 14} As Davis was on the ladder removing the light bulbs, he "thought [he] heard
some footsteps," and he "was trying to hang onto the light," when the metal reflector "just
slipped." (Tr. at 38, 33.) Davis "didn't see anybody. And [he] thought [he] heard a noise.
And [Quaye] just comes out of nowhere." (Tr. at 31.) When the reflector slipped, Davis
"didn't even know [Quaye] was even back behind" him. (Tr. at 38.) Davis couldn't see
Quaye because he "had [his] back [] turned," and Davis first saw Quaye bleeding "when [he]
came out from the room" and saw Quaye sitting "on the bench." (Davis Depo. at 20-21.)
Davis apologized to Quaye because he "didn't see him." (Tr. at 41.)
       {¶ 15} Davis confirmed that it would have been impossible for him to not see
another person in the small janitor's closet. Davis stated that he had "no idea" that Quaye
would be "coming back" to the closet, and stated that, if he had known Quaye "was coming
back that quick, [he] would never have touched that thing." (Tr. at 42.)
       {¶ 16} After the incident, Davis called 911 and Quaye was transported to Grant
Hospital by ambulance. At the hospital, doctors used metal staples to close the wound on
Quaye's head and gave him pain medication. Three days after the incident, Quaye went to
a BWC doctor, who told Quaye to "go back to work." (Tr. at 64.) Quaye told the doctor that
                                                                                               5
No. 15AP-1102
he was "really in pain" and could not "go back to work." (Tr. at 64.) Quaye did not return
to work for almost one year after the incident.
       {¶ 17} Doersam confirmed that, when he arrived at the janitor's closet the following
day, "the light fixture itself was still in place." (Tr. at 130-31.) Doersam stated that only the
metal "reflector was not on the fixture," and he "just put it back" by attaching "these two
spring clips here * * * and turned them 90 degrees." (Tr. at 122, 124.) Doersam stated that,
while it was "not a good practice" to change a light when someone was below you, he did
not "know of any specific rule that addresses that situation." (Tr. at 126.) Doersam opined
that "[i]t seem[ed] unlikely" that Davis could have entered the closet and set the ladder up
while Quaye was also in the closet, as there "[j]ust [wasn't] enough space." (Tr. at 135.)
       {¶ 18} On November 5, 2015, the trial court issued a decision and judgment entry,
concluding that Quaye "failed to prove by a preponderance of the evidence that either North
Market or Davis acted negligently." (Nov. 5, 2015 Decision at 3.) The court observed that
Davis "did not see anyone in the closet when he entered," and the court "agree[d] with
Davis' assessment" of the incident. (Decision at 2.) The court found Quaye's explanation
"of the accident wanting," because, "[i]n order for the reflector to have fallen from the
fixture, both lightbulbs must have been removed. This indicates that Davis entered the
closet, set up the ladder, climbed to the top of the ladder, and removed both light bulbs
before [Quaye] was struck by the reflector." (Decision at 3.) The court concluded that,
"[e]ven if [Quaye was] truthful in his assertion that he was in the closet when Davis
entered," it was "unreasonable that [Quaye] would not alert Davis to his presence."
(Decision at 3.) The court determined that it was "far more likely that [Quaye] entered the
closet while Davis was already up on the ladder, startling Davis and causing him to lose grip
on the reflector." (Decision at 3.)
II. ANALYSIS
       {¶ 19} Quaye asserts that the trial court erred in failing to find that Davis acted
negligently on August 12, 2012. Quaye does not appeal the trial court's ruling with respect
to the North Market.
       {¶ 20} In reviewing a decision reached at a bench trial, we utilize a manifest weight
standard. Walker v. Hartford on the Lake, L.L.C., 10th Dist. No. 16AP-271, 2016-Ohio-
7792, ¶ 27. The weight of the evidence is quantitatively and qualitatively different from the
sufficiency of the evidence. Id., quoting Eastley v. Volkman, 132 Ohio St.3d 328, 2012-
                                                                                                6
No. 15AP-1102
Ohio-2179, paragraph two of the syllabus. Sufficiency is a term of art " 'which is applied to
determine whether the case may go to the jury or whether the evidence is legally sufficient
to support the jury verdict as a matter of law.' * * * In essence, sufficiency is a test of
adequacy." Eastley at ¶ 11, quoting State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
The weight of the evidence concerns " 'the inclination of the greater amount of credible
evidence, offered in a trial, to support one side of the issue rather than the other. It indicates
clearly to the jury that the party having the burden of proof will be entitled to their verdict.'
" (Emphasis sic.) Eastley at ¶ 12, quoting Thompkins at 387. The weight of the evidence "
'is not a question of mathematics, but depends on its effect in inducing belief.' " (Emphasis
sic.) Id.
        {¶ 21} We recently explained our approach to manifest weight of the evidence as
follows:
               In addressing a manifest weight of the evidence argument, we
               are able to consider the credibility of the witnesses. State v.
               Cattledge, 10th Dist. No. 10AP-105, 2010-Ohio-4953, ¶ 6.
               However, in conducting our review, we are guided by the
               presumption that the jury, or the trial court in a bench trial, " 'is
               best able to view the witnesses and observe their demeanor,
               gestures and voice inflections, and use these observations in
               weighing the credibility of the proffered testimony.' " Id.,
               quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80
               (1984). Accordingly, we afford great deference to the jury's
               determination of witness credibility. State v. Redman, 10th
               Dist. No. 10AP-654, 2011-Ohio-1894, ¶ 26, citing State v.
               Jennings, 10th Dist. No. 09AP-70, 2009-Ohio-6840, ¶ 55. See
               also State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one
               of the syllabus (credibility determinations are primarily for the
               trier of fact).

State v. Sims, 10th Dist. No. 14AP-1025, 2016-Ohio-4763, ¶ 17.
        {¶ 22} To establish actionable negligence, Quaye was required to prove the existence
of a duty, a breach of that duty, and injury resulting proximately from the breach.
Mussivand v. David, 45 Ohio St.3d 314, 318 (1989). The existence of a duty is a question
of law for the court to determine. Id. at 318. A defendant's duty to a plaintiff depends on
the relationship between the parties and the foreseeability of injury to someone in the
plaintiff's position. McCoy v. Kroger Co., 10th Dist. No. 05AP-7, 2005-Ohio-6965, ¶ 7;
Menifee v. Ohio Welding Prods., 15 Ohio St.3d 75, 77 (1984). "The test for foreseeability is
                                                                                              7
No. 15AP-1102
whether a reasonably prudent person would have anticipated that an injury was likely to
result from the performance or nonperformance of an act." Menifee at 77. " 'Only when
the injured person comes within the circle of those to whom injury may reasonably be
anticipated does the defendant owe him a duty of care.' " Jeffers v. Olexo, 43 Ohio St.3d
140, 142 (1989), quoting Gedeon v. E. Ohio Gas Co., 128 Ohio St. 335, 338 (1934).
       {¶ 23} Furthermore, " 'negligence is without legal consequence unless it is a
proximate cause of an injury.' " Whiting v. Ohio Dept. of Mental Health, 141 Ohio App.3d
198, 202 (10th Dist.2001), quoting Osler v. Lorain, 28 Ohio St.3d 345, 347 (1986).
Proximate cause "is generally established where an original act is wrongful or negligent and,
in a natural and continuous sequence, produces a result that would not have taken place
without the act." Whiting at 202. "[B]efore finding in a party's favor on a negligence claim,
a fact finder must be persuaded of each element of the claim by a preponderance of the
evidence." Brothers v. Morrone-O'Keefe Dev. Co., L.L.C., 10th Dist. No. 05AP-161, 2006-
Ohio-1160, ¶ 20.
       {¶ 24} The court heard the conflicting evidence about how the incident occurred,
and concluded that it was more likely that Quaye entered the closet after Davis had already
ascended the ladder. See State v. Eisenman, 10th Dist. No. 10AP-809, 2011-Ohio-2810,
¶ 19 (noting that "[i]t is the province of the fact finder to determine the truth from
conflicting evidence, whether the conflicting evidence comes from different witnesses or
is contained within the same witness's testimony"). As the trial court was in the best
position to observe the witnesses' demeanors as they testified, we defer to the trial court's
beliefs of their testimony and observations on credibility. Sims at ¶ 17. See also Seasons
Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984).
       {¶ 25} The record supports the trial court's conclusion that Quaye's version of the
accident seemed to lack critical details. Quaye's version required the court to believe that
Davis never noticed Quaye, and that Quaye never said anything to Davis, throughout the
entire time that Davis entered a small janitor's closet, set up a ladder, climbed up the ladder,
and removed two fluorescent tube light bulbs. Notably, Quaye admitted that the accident
affected his memory and caused him to "forget things fast." (Tr. at 80.)
       {¶ 26} On appeal, Quaye asserts that Davis was negligent in failing to block off the
area before changing the light bulbs. Quaye states that "Davis clearly did not follow his own
                                                                                             8
No. 15AP-1102
safety precautions by 'blocking off' the area before he started changing the light bulbs," and
asserts that, if "Davis had 'blocked off' the area before attempting to change the light bulbs,
[Quaye] would not have been hit by a falling object." (Appellant Brief at 12.)
       {¶ 27} But Quaye did not argue this to the trial court. This argument also tends to
support Davis' version of the facts, that Quaye entered the closet after Davis had begun to
change the bulb. Quaye asserted in his complaint that Davis failed to use ordinary care in
replacing the fluorescent bulb, and asserted at trial that Davis had negligently set up the
ladder and attempted to replace the light bulbs while Quaye was gathering rags on the
ground underneath the ladder. Quaye's attorney argued in closing that the "general safety
rule" that everyone "agreed upon" was that "whenever you're doing overhead work you
need to make sure that if anybody's below there, they need to be protected or removed from
the area." (Tr. at 174.) Counsel asserted that Davis was negligent because he was "working
over [Quaye's] head." (Tr. at 192.) Quaye did not at any point argue to the trial court that
Davis was negligent in failing to block off the area before changing the light bulbs.
       {¶ 28} An appellant cannot change the theory of his case and present new arguments
for the first time on appeal. State ex rel. Gutierrez v. Trumbull Cty. Bd. of Elections, 65
Ohio St.3d 175, 177 (1992). See also Clemens v. Nelson Fin. Group, Inc., 10th Dist. No.
14AP-537, 2015-Ohio-1232, ¶ 27. "These rules are deeply embedded in a just regard for the
fair administration of justice," as they "afford the opposing party a meaningful opportunity
to respond to issues or errors that may affect or vitiate his or her cause [and] do not permit
a party to sit idly by until he or she loses on one ground only to avail himself or herself of
another on appeal." State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 81
(1997).
       {¶ 29} By not presenting his current theory of relief to the trial court, Quaye
deprived the trial court the opportunity to rule on this theory of the case, and prevented
Davis from defending against this theory of liability. Accordingly, Quaye is not entitled to
change the theory of his case on appeal.
       {¶ 30} Even if we were to consider Quaye's new argument on appeal, the record does
not support a finding of negligence on this theory that Davis failed to block off the area
before he began his work. Davis affirmed that he takes certain safety precautions when
using ladders at his job, testifying as follows:
                                                                                         9
No. 15AP-1102
              A. I make sure and wait till everybody -- I make sure
              everything's out of -- everybody's out of the way before I block
              it off and everything and --

              Q. And why is that?

              A. Because we're -- so something won't fall down.

              Q. In other words, you need to do that in order to prevent
              somebody from getting hurt by a falling object?

              A. Yeah.

              Q. And that's an important safety rule?

              A. Yeah.

              Q. That's something that you've known for the 35 years that
              you've been employed --

              A. Yes.

              Q. -- at the North Market?

              A. Yeah.

              Q. And is that something that you always do?

              A. Yeah.

(Tr. at 21-22.)
       {¶ 31} At his deposition, Davis explained that when he uses a ladder at the North
Market, "sometimes [he] used to put cones and [he] used to block it off." (Davis Depo. at
23.) However, because the light at issue "was inside of a room, [Davis] didn't think it was
necessary to block it off," as he didn't see anybody inside the room. (Davis Depo. at 23.)
Davis noted that he "never thought somebody was going to go walking behind [him] when
[he was] on top of a ladder." (Davis Depo. at 33.) Doersam observed that with the "ladder
in place and that door open, that's taking up a pretty sizeable chunk of that room." (Tr.
at 133-34.)
       {¶ 32} In determining whether a reasonably prudent person in Davis' position
should have perceived the risk of injury to another, "only those circumstances which they
perceived, or should have perceived, at the time of their respective actions should be
considered." Menifee at 77. As Davis did not see anyone in the closet, he had no reason to
                                                                                           10
No. 15AP-1102
believe that someone would attempt to walk into the small janitor's closet when a six-foot
ladder was visibly set up inside the closet. Quaye's walking into the closet was not
foreseeable.
       {¶ 33} Furthermore, Quaye testified only that he was in the closet gathering rags
when Davis entered the closet and set up the ladder. Thus, based on Quaye's testimony,
cones blocking off the entrance to the closet would not have prevented the accident, as
Quaye testified at trial that he was already inside the closet when Davis set up the ladder.
And the trial court did not hear evidence such as if Quaye had seen a cone outside the closet,
that it would have warned and deterred him from entering the closet. Thus even if Quaye's
theory of negligence based on not blocking off the closet could be considered, he did not
present evidence to demonstrate a causal connection between his injury and Davis' failure
to block off the closet from entrance. Compare Burth v. CPK Constr., 9th Dist. No. 22713,
2006-Ohio-70, ¶ 15; Plank v. McKeever, 10th Dist. No. 04AP-1273, 2005-Ohio-5645, ¶ 18
(observing that the "plaintiffs lost not because no one caused the accident, but because
plaintiffs failed to meet their respective burdens to show, by a preponderance of the
evidence, whose negligence was the proximate cause").
       {¶ 34} Quaye's sole assignment of error is overruled and we affirm the judgment of
the Franklin County Court of Common Pleas.
                                                                        Judgment affirmed.
                          DORRIAN and HORTON, JJ., concur.
