[Cite as Witt v. Univ. of Toledo, 2011-Ohio-5576.]



                                       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




CAITLYN WITT,                                             Case No. 2011-05521-AD

        Plaintiff,

        v.

UNIVERSITY OF TOLEDO,                                     Acting Clerk Daniel R. Borchert

        Defendant.



                                      MEMORANDUM DECISION


        {¶ 1} On February 1, 2011, plaintiff, Caitlyn Witt, suffered personal injury when
she slipped and fell over snow and ice covered steps at Parks Tower located on the
campus of defendant, University of Toledo. Specifically, plaintiff asserted she “fell down
stairs that were not cleared of snow and ice and hurt her back.” Plaintiff has contended
defendant should bear liability for damages she suffered as a proximate result of her
slip and fall. Plaintiff filed this complaint seeking to recover $568.37, for her medical
treatment expenses, medications, and work loss resulting from the February 1, 2011,
personal injury incident. Plaintiff submitted the filing fee.
        {¶ 2} Defendant filed an investigation report denying liability in this matter.
        {¶ 3} Plaintiff’s cause of action is grounded in negligence. In order to prevail on
a negligence action, plaintiff must establish: (1) a duty on the part of defendant to
protect her from injury; (2) a breach of that duty; and (3) injury proximately resulting
from the breach. Huston v. Konieczny (1990), 52 Ohio St. 3d 214, 556 N.E. 2d 505;
Jeffers v. Olexo (1989), 43 Ohio St. 3d 140, 142, 539 N.E. 2d 614; Thomas v. Parma
(1993), 88 Ohio App. 3d 523, 527, 624 N.E. 2d 337; Parsons v. Lawton Co. (1989), 57
Ohio App. 3d 49, 50, 566 N.E. 2d 698.
       {¶ 4} Based on plaintiff’s status as a student, she is considered an invitee on
defendant’s premises, defendant university owed her a duty to exercise reasonable care
in keeping the premises in a safe condition and warning plaintiff of any latent or
concealed dangers which defendant had knowledge.              Perry v. Eastgreen Realty
Company (1978), 53 Ohio St. 2d 51, 52-53, 7 O.O. 3d 130, 372 N.E. 2d 335; Presley v.
Norwood (1973), 36 Ohio St. 2d 29, 31, 65 O.O. 2d 129, 303 N.E. 2d 81; Sweet v.
Clare-Mar Camp, Inc. (1987), 38 Ohio App. 3d 6, 9, 526 N.E. 2d 74. However, a
property owner is under no duty to protect a business invitee from hazards which are so
obvious and apparent that the invitee is reasonably expected to discover and protect
against them herself. Sidle v. Humphrey (1968), 13 Ohio St. 2d 45, 42 O.O. 2d 96, 233
N.E. 2d 589, at paragraph one of the syllabus; Paschal v. Rite Aid Pharmacy (1985), 18
Ohio St. 3d 45, 18 OBR 267, 480 N.D. 2d 474.
       {¶ 5} Nonetheless, since defendant agreed to assume responsibility for snow
and ice removal, the University would bear the duty to exercise ordinary or reasonable
care for plaintiff’s safety and protection, and this includes having the premises in a
reasonably safe condition and warning her of latent or concealed defects or perils which
the possessor has or should have knowledge. Durst v. VanGundy (1982), 8 Ohio App.
3d 72, 8 OBR 103, 455 N.E.2d 1319; Wells v. University Hospital (1985), 86-01392-AD.
Although the occupant owes this duty of ordinary care, “the liability of an owner or
occupant to an invitee for negligence in failing to render the premises reasonably safe
for the invitee, or in failing to warn him of dangers thereon, must be predicated upon a
superior knowledge concerning the dangers of the premises to persons going thereon.”
38 American Jurisprudence, 757, Negligence, Section 97, as cited in Debie v. Cochran
Pharmacy Berwick, Inc. (1967), 11 Ohio St. 2d 38, 40, 40 O.O. 2d 52, 227 N.E. 2d 603.
       {¶ 6} “The knowledge of the condition removes the sting of unreasonableness
from any danger that lies in it, and obviousness may be relied on to supply knowledge.
Hence the obvious character of the condition is incompatible with negligence in
maintaining it. If plaintiff happens to be hurt by the condition, he is barred from recovery
by lack of defendant’s negligence towards him, no matter how careful plaintiff himself
may have been.” 2 Harper and James, Law of Torts (1956), 1491, as cited in Sidle v.
Humphrey, at 48. In short, if the condition or circumstances are such that the invitee
has knowledge of the condition in advance, there is no negligence. Debie.
      {¶ 7} “In a climate where the winter brings frequently recurring storms of snow
and rain and sudden and extreme changes in temperature, these dangerous conditions
appear with a frequency and suddenness which defy prevention and, usually,
correction. Ordinarily, they would disappear before correction would be practicable. . .
To hold that a liability results from these actions of the elements would be the
affirmance of a duty which it would often be impossible, and ordinarily impracticable . . .
to perform.” Norwalk v. Tuttle (1906), 73 Ohio St. 242, 245, 76 N.E. 617, as quoted in
Sidle, at 49. Therefore, the danger from ice and snow is an obvious danger and an
occupier of the premises should expect that an invitee will discover and realize that
danger and protect herself against it. Sidle, Debie.
      {¶ 8} Plaintiff should have realized the steps would have been slippery from a
natural accumulation of falling snow and climatic conditions. Consequently, there is no
actionable negligence upon which she can recover.
                  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



CAITLYN WITT,                                           Case No. 2011-05521-AD

        Plaintiff,

        v.                                              Acting Clerk Daniel R. Borchert

UNIVERSITY OF TOLEDO,

        Defendant.


                         ENTRY OF ADMINISTRATIVE DETERMINATION


        Having considered all the evidence in the claim file and, for the reasons set forth
in the memorandum decision filed concurrently herewith, judgment is rendered in favor
of defendant. Court costs are assessed against plaintiff.



                                                 ________________________________
                                                 DANIEL R. BORCHERT
                                                 Acting Clerk

Entry cc:

Caitlyn Witt                                     Janelle Schaller
13770 CR 8-2                                     Associate General Counsel
Delta, Ohio 43515                                University of Toledo
                                                 2801 W. Bancroft St. MS 943
                                                 Toledo, Ohio 43606



6/21
Filed 7/19/11
Sent to S.C. reporter 10/27/11
