[Cite as Goodman v. Orlando Baking Co., 2012-Ohio-1356.]


               Court of Appeals of Ohio
                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 97170


                                MARK J. GOODMAN
                                                           PLAINTIFF-APPELLANT

                                                  vs.

                 THE ORLANDO BAKING CO., ET AL.
                                                           DEFENDANTS-APPELLEES




                                         JUDGMENT:
                                          AFFIRMED



                                    Civil Appeal from the
                           Cuyahoga County Court of Common Pleas
                                    Case No. CV-732235

        BEFORE: S. Gallagher, J., Boyle, P.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED: March 29, 2012
ATTORNEYS FOR APPELLANT

Jonathan M. Ashton
Kevin J. Boissoneault
Gallon, Takacs, Boissoneault & Schaffer Co., LPA
3516 Granite Circle
Toledo, OH 43617


ATTORNEYS FOR APPELLEES

For Orlando Baking Company

Sean Allan
Allan & Gallagher, LLP
1300 The Rockefeller Building
614 West Superior Avenue
Cleveland, OH 44113

For A&L Compaction Equipment Co., LLC

Dawn E. Snyder
Brian T. Winchester
McNeal, Schick, Archibald & Biro Co.
Van Sweringen Arcade, Suite 250
123 West Prospect Avenue
Cleveland, OH 44115
SEAN C. GALLAGHER, J.:

       {¶1} Appellant, Mark J. Goodman, appeals the judgment of the Cuyahoga

County Court of Common Pleas that granted summary judgment in favor of appellees,

Orlando Baking Company (“Orlando”) and A&L Compaction Equipment Co., LLC

(“A&L”). For the reasons stated herein, we affirm.

       {¶2} On July 21, 2010, Goodman filed a complaint against Orlando and A&L.1

Goodman asserted claims for negligence arising from a knee injury he sustained on July

25, 2008. The injury occurred when he slipped on bakery waste while attempting to

service a waste dumper and compactor unit (“dumper”) at Orlando’s facility in Cleveland.

       {¶3} At the time of the incident, Goodman worked for Endres Processing, LLC

(“Endres”), as a maintenance technician. The dumper being serviced was owned by

Endres. Endres provides waste compactors and dumper units to bakeries in exchange for

bakery waste. Endres would pick up the compactors and process the bakery waste into

livestock feed.

       {¶4} Orlando had three compactors and one dumper located at its facility. All

servicing on the compactors and dumper unit was performed by Endres or a contractor



       1
            The complaint named as defendants the following: The Orlando Baking Company, The
Orlando Baking Company of Columbus, Inc., A&L Compaction Co., LLC, A&L Compaction
Equipment Company, and John Doe numbers one through five. The Orlando defendants were
treated and represented collectively as were the A&L defendants. Also, A&L indicates in its brief
that it was improperly named in the complaint.
sent on its behalf. It was the responsibility of the sanitation department at Orlando to

clean the dumper and the floor around it of any food waste.

       {¶5} On or about July 14, 2008, Orlando was experiencing problems with its

dumper.     Richard Johnson, a service technician for A&L, repaired the dumper by

welding a cracked bearing. Johnson indicated that the area was clean when he performed

this repair. Endres was then billed by A&L for the service call. Johnson also testified

that in his experience with working around bakery product, the nature of the product is

slippery.

       {¶6} Over a week later, on July 25, 2008, Goodman was dispatched by Endres to

perform service work on the dumper at Orlando during normal business hours. Upon his

arrival, Goodman proceeded through a “guard shack” and went to the dumper, which is

located outside the bakery facility. He observed that the area around the dumper was a

“big mess.” He stated in his deposition that “[there was bread dough everywhere. The

dumper was broke. Everything * * * was covered with bread dough, slippery, slimy. I

had never seen it that bad.” He also indicated that Orlando normally was pretty good

about keeping the area clean, though it would not be unusual to have some dough around

the machine.

       {¶7} The dough was comprised of water, flour, yeast, salt, and sometimes oil.

Goodman acknowledged that it was July and that dough rises when it sits in hot

temperatures. He further indicated his knowledge that when bakery dough sits, “it’s

crusty on top, but you think you’re okay, and you step on it, you don’t know if there’s oil
underneath it.” However, he was aware that bakery dough could be slippery and, as he

indicated, “you’re always walking on edge. You’re used to it.”

      {¶8} Goodman did not attempt to clean up the mess or request assistance from

Orlando’s sanitation department.     Instead, he locked and tagged the dumper and

proceeded to inspect it. While crawling over the power unit, Goodman’s foot slipped

and got caught, and his knee was injured. He proceeded to put new bearings on the

machine and completed the repair work.

      {¶9} After Goodman filed this lawsuit, Orlando and A&L filed motions for

summary judgment. The trial court granted the motions without opinion. This appeal

followed.

      {¶10} Goodman raises two assignments of error for our review.             His first

assignment of error challenges the grant of summary judgment to Orlando.

      {¶11} Appellate review of summary judgment is de novo, governed by the

standard set forth in Civ.R. 56. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559,

833 N.E.2d 712, ¶ 8.   Accordingly, we afford no deference to the trial court’s decision

and independently review the record to determine whether summary judgment is

appropriate. Hollins v. Shaffer, 182 Ohio App.3d 282, 2009-Ohio-2136, 912 N.E.2d

637, ¶ 12 (8th Dist.). Under Civ.R. 56(C), summary judgment is proper when the

moving party establishes that

             (1) no genuine issue of any material fact remains, (2) the moving
      party is entitled to judgment as a matter of law, and (3) it appears from the
      evidence that reasonable minds can come to but one conclusion, and
      construing the evidence most strongly in favor of the nonmoving party, that
      conclusion is adverse to the party against whom the motion for summary
      judgment is made. State ex rel. Duncan v. Mentor City Council, 105 Ohio
      St.3d 372, 2005-Ohio-2163, 826 N.E.2d 832, ¶ 9, citing Temple v. Wean
      United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

       {¶12} R.C. 4101.11, the “frequenter statute,” sets forth the duty of an employer to
protect employees and frequenters, and provides in pertinent part as follows:

             Every employer shall furnish employment which is safe for the
      employees engaged therein, shall furnish a place of employment which shall
      be safe for the employees therein and for frequenters thereof * * * and shall
      do every other thing reasonably necessary to protect the life, health, safety,
      and welfare of such employees and frequenters.

      {¶13} Additionally, R.C. 4101.12 sets forth the duty of an employer to furnish a

safe place of employment, and provides in pertinent part as follows:

             No employer shall require, permit, or suffer any employee to go or

      be in any employment or place of employment which is not safe * * *. No

      employer shall fail to do every other thing reasonably necessary to protect

      the life, health, safety, and welfare of such employees or frequenters. No

      such employer or other person shall construct, occupy, or maintain any

      place of employment that is not safe.

      {¶14} It is undisputed that Goodman was a frequenter at Orlando. The duty owed

to a frequenter is akin to that of the common-law duty owed to an invitee:

             The duty owed to frequenters, i.e., including employees of other

      companies, is no more than a codification of the common-law duty owed by

      an owner or occupier of premises to invitees, requiring that the premises be

      kept in a reasonably safe condition, and that warning be given of dangers of
         which he has knowledge. Eicher v. United States Steel Corp., 32 Ohio

         St.3d 248, 249, 512 N.E.2d 1165 (1987).

         {¶15} At common law, a property owner has no duty to protect business invitees

from dangers that are known to the invitee or are so obvious and apparent to the invitee

that he may reasonably be expected to discover them and take appropriate measures to

protect against them. Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 480

N.E.2d 474 (1985). The rationale behind the “open and obvious” doctrine is that the

open and obvious nature of the hazard itself serves as a warning. Armstrong v. Best Buy

Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 5. “The fact that a

plaintiff was unreasonable in choosing to encounter the danger is not what relieves the

property owner of liability. Rather, it is the fact that the condition itself is so obvious

that it absolves the property owner from taking any further action to protect the plaintiff.”

 Id. at ¶ 13. When applicable, “the open and obvious doctrine obviates the duty to warn

and acts as a complete bar to any negligence claims.” Id. at ¶ 5.

         {¶16} Goodman argues that the open and obvious doctrine applies only to static

conditions and does not apply in cases involving active negligence. As explained by one

court:

                Premises tort claims where the alleged negligence arises from static

         or passive conditions, such as preexisting latent defects, are legally distinct

         from claims averring active negligence by act or omission. * * * The

         distinction between static and dynamic forms of negligence is legally
       significant, because it directly correlates to the two separate and distinct

       duties an occupier owes its business invitees: (1) static conditions relate to

       the owner’s duty to maintain its premises in a reasonably safe condition,

       including an obligation to warn its invitees of latent or hidden dangers,

       while (2) active negligence relates to the owner’s duty not to injure its

       invitees by negligent activities conducted on the premises. Simmons v. Am.

       Pacific Ents., L.L.C., 164 Ohio App.3d 763, 2005-Ohio-6957, 843 N.E.2d

       1271, ¶ 20 (10th Dist.).

       {¶17} Regardless of the original nature of the condition, it has been recognized

that a condition may become static through a lapse of time. Id. at ¶ 22; Sherlock v. Shelly

Co., 10th Dist. No. 06AP-1303, 2007-Ohio-4522, ¶ 17-18; Routzahn v. Garrison, 2d Dist.

No. 21190, 2006-Ohio-3652, ¶ 25.

      {¶18} In the present case, there is no evidence to suggest that the conduct of

Orlando actively created or changed the condition while Goodman was at the facility. In

fact, the record reflects that no Orlando employees were present while Goodman was

working on the dumper. Goodman estimated that he had been there for approximately

one hour to one and one-half hours before the accident occurred. Thus, the bakery waste

surrounding the dumper was a static condition and the open and obvious doctrine applies.

      {¶19} Goodman further argues that he had no choice but to traverse the bakery

waste in order to do his job. In support of his argument, he cites the case of Mizenis v.

Sands Motel, Inc., 50 Ohio App.2d 226, 362 N.E.2d 661 (6th Dist.1975). In Mizenis, the
court held that a hotel guest did not voluntarily assume the risk of navigating a stairway

with melted snow and ice when he had unsuccessfully asked the motel manager to remedy

the condition and the stairway was the only means to exit the premises. Id. at 230-232.

Under these limited circumstances, in which no viable alternative was available, the court

found the invitee could not reasonably be expected to protect himself against the danger.

Id. at 230. Mizenis has been distinguished in cases in which the defendant is not faced

with forced circumstances or fails to show no reasonable alternatives were available. See

Al-Sorghali v. Modene & Assoc., Inc., 6th Dist. No. L-06-1156, 2006-Ohio-4911, ¶

19-20; Jeffries v. U.S., N.D.Ohio No. 3:09CV00430, 2010 WL 1258008 (Mar. 30, 2010).

      {¶20} Unlike the defendant in Mizenis, Goodman was not trapped inside a

premises and he never sought assistance from Orlando in cleaning up the dangerous

condition. Goodman conceded this alternative would have been a better course of action.

Further, Goodman could have chosen not to perform repair work on the dumper until the

area was cleaned.     See Routzahn, 2d Dist. No. 21190, 2006-Ohio-3652, ¶ 55-56

(recognizing that an independent contractor has a right to choose the manner in which the

work will be performed). Thus, Goodman was not faced with forced circumstances and

there were reasonable alternatives available. Under these facts, reasonable minds could

only conclude that Goodman voluntarily chose to encounter an open and obvious danger

when he traversed the bakery waste.

      {¶21} Goodman also asserts that bakery waste is not necessarily slippery and he

could not see beneath it. However, the record reflects that the bakery waste was clearly
observable and Goodman was fully aware of its presence. Indeed, he described it as “a

big mess” and described the dough as “slippery, slimy.” Goodman was an experienced

technician and had worked around bakery waste for a number of years. He was fully

aware that the substance could be slippery. Because the nature of the condition was open

and obvious, Goodman had a duty to protect himself against the associated dangers. See

Brown v. Whirlpool Corp., 3d Dist. No. 9-04-12, 2004-Ohio-5101, ¶ 13-15 (applying

open and obvious doctrine to a frequenter who was aware of oil-like substance on the

floor near a compactor unit); Basar v. Steel Serv. Plus, 8th Dist. No. 77091, 2000 WL

502875 (Apr. 27, 2000) (applying open and obvious doctrine to a frequenter who worked

on scaffolding with knowledge that the floor was covered with “junk”).

      {¶22} Because the bakery waste was an open and obvious condition as a matter of

law, the trial court properly granted summary judgment to Orlando. Accordingly, we

overrule Goodman’s first assignment of error.2

      {¶23} Goodman’s second assignment of error challenges the grant of summary

judgment to A&L. Goodman argues that by welding the bearings rather than replacing

them, A&L failed to properly repair the dumper and that this failure was a direct and

proximate cause of the circumstances that led to his injury. He further asserts that A&L

owed him a duty because his claims were foreseeable.




      2
            We need not address the duty owed to an independent contractor
performing inherently dangerous work.
      {¶24} In order to establish a negligence claim, a plaintiff must prove three

elements: (1) a legal duty on the part of the defendant; (2) the defendant’s breach of that

duty; and (3) an injury that is the proximate cause of that breach. Wallace v. Ohio Dept.

of Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d 1018, ¶ 22.                 The

existence of a duty depends upon the forseeability of the injury. Id. at ¶ 23. A duty is

established when a reasonably prudent person would have anticipated that an injury was

likely to result from a particular act. Id. Thus, “[o]nce the independent contractor has

completed a project on property, the contractor’s duty is set with respect to all who may

be foreseeably injured due to the contractor’s negligence.” Torchik v. Boyce, 121 Ohio

St.3d 440, 2009-Ohio-1248, 905 N.E.2d 179, ¶ 14.

      {¶25} In this case, Johnson performed repair work on the dumper more than a

week before Goodman was called to make a subsequent repair. Johnson testified that the

area was clean when he serviced the dumper. He repaired the machine by welding a

cracked bearing, which he testified was on the other side of the machine from where

Goodman’s fall occurred. Goodman testified that it is very hard to weld a bearing and

get it to hold. However, he did not have any documentation or information to indicate

that the work performed by A&L was not suitable. He further testified that the cause of

his fall was “[s]lipping off of the tank on wet bakery dough that was piled up over it * *

*.”

      {¶26} In this case, there was simply a lack of evidence to establish A&L’s

negligence or the foreseeability of Goodman’s injury. There was insufficient evidence to
show that A&L failed to properly repair the machine. While Goodman suggests that

replacing the bearing is the better course of action, there was a lack of evidence to show

that welding a bearing is not an acceptable method of repair or that Johnson failed to

exercise reasonable care in performing the repair work. Further, it was not foreseeable

that someone would be injured in the course of subsequent repair work by proceeding to

work around a machine that was covered in bakery waste. Therefore, we find the trial

court properly granted summary judgment to A&L.3

       {¶27} Judgment affirmed.

       It is ordered that appellees recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



SEAN C. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., and
EILEEN A. GALLAGHER, J., CONCUR




       3
           We express no opinion on the assumption-of-risk issue.
