[Cite as Peterson v. Cuyahoga Hills Boys' School, 2011-Ohio-1856.]

                                                        Court of Claims of Ohio
                                                                                       The Ohio Judicial Center
                                                                               65 South Front Street, Third Floor
                                                                                          Columbus, OH 43215
                                                                                614.387.9800 or 1.800.824.8263
                                                                                           www.cco.state.oh.us




CHERYL PETERSON, et al.

       Plaintiffs

       v.

CUYAHOGA HILLS BOYS’ SCHOOL

       Defendant
       Case No. 2009-03533

Judge Joseph T. Clark

DECISION




        {¶ 1} Plaintiffs brought this action alleging negligence. The issues of liability
and damages were bifurcated and the case proceeded to trial on the issue of liability.
        {¶ 2} On June 1, 2006, plaintiff1 was working as a speech therapist pursuant to
a personal services contract with defendant. As plaintiff walked in the hallway from the
education office to her office, she turned right at a corner, walked a few steps, felt her
foot slide, and fell to the floor. Plaintiff sustained personal injury, including a broken
right foot, as a result of the fall. Plaintiff explained that her shirt and the area of her
pants around her knee became wet from a substance on the floor as a result of her fall.
        {¶ 3} Joint Exhibit I, a DVD of the surveillance video that was recorded on the
day of the incident, shows that a juvenile used a mop to clean the floor, and that
approximately six minutes later, plaintiff walked through the area of the floor that had



1
 “Plaintiff” shall be used to refer to Cheryl Peterson throughout this decision.
been mopped and fell.2 No warning signs or cones are visible on the surveillance tape.
Plaintiff testified that in her experience at the building, one side of the hallway would be
mopped at a time, and cones would be placed to warn of a wet floor. However, on the
day that she fell, no signs or cones were in place.
       {¶ 4} Although defendant admits that the floor had been mopped, that the floor
was wet at the time of plaintiff’s fall, and that no warning signs or cones were placed to
show that the floor was wet, defendant denies liability. Defendant argues that plaintiff’s
decision to wear high-heeled shoes to work and her failure to look down while she was
walking show a lack of ordinary care and a disregard for her own safety.


I. NEGLIGENCE
       {¶ 5} In order for plaintiffs to prevail upon their claim of negligence, they must
prove by a preponderance of the evidence that defendant owed them a duty, that
defendant’s acts or omissions resulted in a breach of that duty, and that the breach
proximately caused plaintiff’s injuries. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d
79, 81, 2003-Ohio-2573, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio
St.3d 75, 77.
       {¶ 6} Under Ohio law, the duty owed by an owner or occupier of premises
generally depends on whether the injured person is an invitee, licensee, or trespasser.
Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315, 1996-
Ohio-137. Plaintiff was on defendant’s premises for purposes that would classify her as
an invitee, defined as a person who comes “upon the premises of another, by invitation,
express or implied, for some purpose which is beneficial to the owner.” Baldauf v. Kent
State Univ. (1988), 49 Ohio App.3d 46, 47. An owner or occupier of premises owes its
invitees “a duty of ordinary care in maintaining the premises in a reasonably safe
condition and has the duty to warn its invitees of latent or hidden dangers.” Armstrong,
supra, at 80.
       {¶ 7} In order for a business invitee to recover in a negligence action based
upon a slip-and-fall accident it must be established:


2
 Although no testimony was presented regarding what material the floor consisted of, the surveillance
video shows that it was either tile or linoleum.
        {¶ 8} “1. That the defendant through its officers or employees was responsible
for the hazard complained of; or
        {¶ 9} “2. That at least one of such persons had actual knowledge of the hazard
and neglected to give adequate notice of its presence or remove it promptly; or
        {¶ 10} “3. That such danger had existed for a sufficient length of time
reasonably to justify the inference that the failure to warn against it or remove it was
attributable to a want of ordinary care.” Evans v. Armstrong Group (Sept. 23, 1999),
Franklin App. No. 99AP-17, citing Johnson v. Wagner Provision Co. (1943), 141 Ohio
St. 584, 589.
        {¶ 11} Upon review of the evidence, the court finds that plaintiff has established
that defendant created the hazard which caused her injury and that the standard of care
required defendant to warn of the danger of the wet floor.
        {¶ 12} Turning to defendant’s assertion that plaintiff contributed to her injuries,
the court finds that defendant’s argument is completely without merit.                      Defendant
presented no evidence that plaintiff failed to use ordinary care for her own safety.
Although defendant argues that plaintiff failed to “look down” while she was walking,
defendant elicited no testimony in that regard.3                  Furthermore, a review of the
surveillance video is inconclusive as to whether plaintiff was looking down while she
was walking, and defendant presented no evidence to suggest that, even if plaintiff had
been looking down while she was walking, she would have seen that the floor was wet.
        {¶ 13} With regard to defendant’s argument that plaintiff’s choice of footwear
contributed to her injuries, the court finds that plaintiff’s testimony, coupled with
Plaintiffs’ Exhibit 5 (the pair of shoes that plaintiff was wearing at the time of her fall)
show that her shoes were appropriate business attire and that the heels of the shoes
were not unusually high.         Plaintiff testified that she was wearing “dress pants” and
“black pumps” when she fell; that she was required to wear closed-toed shoes that were
“business-like” to work; and that she was not allowed to wear athletic footwear to work.
Defendant failed to produce any evidence that the shoes that plaintiff was wearing were


3
 Even if defendant had established that plaintiff failed to look down, by analogy “[a] pedestrian using a
public sidewalk is under a duty to use care reasonably proportioned to the danger likely to be
encountered but is not, as a matter of law, required to look constantly downward.” Grossnickle v. Village
of Germantown (1965), 3 Ohio St.2d 96, paragraph two of the syllabus.
inappropriate for her duties as a speech therapist. Accordingly, the court finds that no
comparative negligence shall be attributed to plaintiff. See R.C. 2315.33.


II. LOSS OF CONSORTIUM
       {¶ 14} Finally, at trial, defendant made an oral motion to dismiss plaintiffs’ claim
for loss of consortium on behalf of plaintiff’s husband, Michael Peterson, pursuant to
Civ.R. 41(B)(2), on the ground that, upon the facts and the law, plaintiffs had shown no
right to relief. Counsel for plaintiffs argued that inasmuch as the issues of liability and
damages were bifurcated for trial, he did not present Michael Peterson as a witness and
reserved his right to do so at any trial on the issue of damages.
       {¶ 15} “[A]n action for loss of consortium occasioned by a spouse’s injury is a
separate and distinct cause of action * * *[.]” Bowen v. Kil-Kare, Inc. (1992), 63 Ohio
St.3d 84, 92.    “[A] claim for loss of consortium is derivative in that the claim is
dependent upon the defendant’s having caused a legally cognizable tort claim upon the
spouse who suffers bodily injury.” Id. at 93.
       {¶ 16} The Ninth District Court of Appeals has stated: “In cases where the two
claims [loss of consortium and bodily injury] are premised on the same alleged incident,
the mandates of both logic and judicial economy would seem to dictate that the primary
claim should be determined either prior to, or at the same time as, the consortium claim,
since failure to prove the underlying claim may dispose of the derivative claim
altogether, thus rendering two separate trials unnecessary.” Balazs v. Watts, (Sept. 20,
1995), Summit App. No. 17164, page 10. The court is persuaded by the reasoning in
Balazs, supra.    Accordingly, defendant’s oral motion to dismiss plaintiff’s, Michael
Peterson, claim for loss of consortium pursuant to Civ.R. 41(B)(2) is DENIED. Plaintiffs
may present evidence regarding the loss of consortium claim at the trial on the issue of
damages.
       {¶ 17} For the foregoing reasons, the court finds that plaintiffs have proven their
claim of negligence and, accordingly, judgment shall be rendered in favor of plaintiffs.




                                                Court of Claims of Ohio
                                                                       The Ohio Judicial Center
                                                               65 South Front Street, Third Floor
                                                                          Columbus, OH 43215
                                                                614.387.9800 or 1.800.824.8263
                                                                           www.cco.state.oh.us




CHERYL PETERSON, et al.

      Plaintiffs

      v.

CUYAHOGA HILLS BOYS’ SCHOOL

      Defendant
      Case No. 2009-03533

Judge Joseph T. Clark

JUDGMENT ENTRY




       This case was tried to the court on the issue of liability.          The court has
considered the evidence and, for the reasons set forth in the decision filed concurrently
herewith, judgment is rendered in favor of plaintiffs on their claim of negligence. The
case will be set for trial on the issue of damages and on plaintiff’s, Michael Peterson,
claim for loss of consortium.



                                         _____________________________________
                                         JOSEPH T. CLARK
                                         Judge

cc:

Arthur E. Dombek                            Douglas R. Folkert
Leonard Ehrenreich                          Assistant Attorney General
The Leader Building                         150 East Gay Street, 18th Floor
526 Superior Avenue, N.E., Suite 1130       Columbus, Ohio 43215-3130
Cleveland, Ohio 44114
HTS/cmd
Filed March 24, 2011
To S.C. reporter April 12, 2011
