[Cite as Price v. Frederick C. Smith Clinic, 2010-Ohio-4551.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MARION COUNTY



THELMA PRICE,                                                   CASE NO. 9-10-13

   PLAINTIFF-APPELLANT,

  v.

THE FREDERICK C. SMITH                                            OPINION
CLINIC, ET AL.,

   DEFENDANTS-APPELLEES.



                 Appeal from Marion County Common Pleas Court
                           Trial Court No. 09 CV 0277

                       Judgment Reversed and Cause Remanded

                          Date of Decision: September 27, 2010




APPEARANCES:

        Robert E. Wilson, for Appellant

        James P. Myers, for Appellees
Case No. 9-10-13




SHAW, J.

       {¶1} Plaintiff-appellant, Thelma Price (“Price”), appeals the January 20,

2010 judgment of the Common Pleas Court of Marion County, Ohio, granting

summary judgment in favor of Defendants-appellees, The Frederick C. Smith

Clinic and Clinic Investment LLC (collectively hereinafter “the clinic”) and

dismissing her complaint against them.

       {¶2} On September 19, 2005, Price, who was ninety-years old, went to

see her physician at the clinic. After the appointment, Price’s granddaughter, who

drove Price to her appointment, went to get the car while Price waited in the clinic

lobby. Upon seeing her granddaughter drive up, Price, who uses a walker, began

to exit the lobby through the automatic sliding doors located at the main entrance

of the clinic. As Price was in the threshold of the interior set of doors, she felt

something against her right hand. When she looked at her hand, she noticed that

the automatic door was closing on her. Price raised her arm to stop the door but it

continued to close, knocking both Price and her walker to the floor. As a result of

this fall, Price’s right leg was broken.

       {¶3} Price filed a complaint in the Marion County Common Pleas Court

on September 6, 2007, against the clinic for the injuries she sustained from the

accident. However, Price voluntarily dismissed her complaint pursuant to Civ.R.




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Case No. 9-10-13


41(A)(2) on June 12, 2008. On March 31, 2009, Price re-filed her complaint

against the clinic. The clinic filed its answer to Price’s complaint.

       {¶4} On November 9, 2009, the clinic filed a motion for summary

judgment. In its motion, the clinic asserted that Price could not demonstrate that

the clinic breached any duty it owed to Price. In addition, the clinic maintained

that the automatic sliding doors were an open and obvious danger, thereby

eliminating any duty that the clinic may have owed to Price. Price responded to

this motion on December 31, 2009. Thereafter, the clinic filed its reply brief in

support of its motion for summary judgment.

       {¶5} The trial court granted summary judgment in favor of the clinic on

January 20, 2010, and dismissed Price’s complaint. This appeal followed, and

Price now asserts two assignments of error.

                          ASSIGNMENT OF ERROR I

       THE TRIAL COURT FAILED TO APPLY THE DOCTRINE
       OF RES IPSA LOQUITUR TO THE PREMATURE CLOSING
       OF THE AUTOMATIC SLIDING GLASS DOORS WHICH
       CAUSED INJURY TO THE PLAINTIFF WHICH WOULD
       DEFEAT DEFENDANTS’ MOTION FOR SUMMARY
       JUDGMENT.

                          ASSIGNMENT OF ERROR II

       THERE IS A QUESTION OF FACT OF WHETHER A
       BUSINESS OWNER IS NEGLIGENT WHEN THE OWNER
       OF THE BUSINESS HAS PREVIOUSLY BEEN ADVISED
       THAT ITS AUTOMATIC SLIDING GLASS DOORS
       PREMATURELY CLOSED ON A BUSINESS INVITEE AND



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Case No. 9-10-13


       FAILS TO REMEDY THAT HAZARD WHICH CAUSES AN
       INJURY TO A SUBSEQUENT BUSINESS INVITEE.

       {¶6} For ease of discussion, we elect to address these assignments of error

out of the order in which they appear.

                            Second Assignment of Error

       {¶7} In Price’s second assignment of error, she contends that the trial

court erred in granting summary judgment in favor of the clinic because there was

a genuine issue of material fact as to whether the clinic breached the duty of care it

owed to her based upon its prior knowledge of the premature closing of the

automatic doors and failure to remedy this hazard. An appellate court reviews a

grant of summary judgment de novo, without any deference to the trial court.

Conley-Slowinski v. Superior Spinning & Stamping Co. (1998), 128 Ohio App.3d

360, 363, 714 N.E.2d 991; see, also, Hasenfratz v. Warnement, 3rd Dist. No. 1-06-

03, 2006-Ohio-2797, citing Lorain Nat’l. Bank v. Saratoga Apts. (1989), 61 Ohio

App.3d 127, 572 N.E.2d 198. A grant of summary judgment will be affirmed only

when the requirements of Civ.R. 56(C) are met. This requires the moving party to

establish that

       when, looking at the evidence as a whole, (1) no genuine issue of
       material fact remains to be litigated, (2) the moving party is
       entitled to judgment as a matter of law, and (3) it appears from
       the evidence, construed most strongly in favor of the nonmoving
       party, that reasonable minds could only conclude in favor of the
       moving party.




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Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 1995-Ohio-286, paragraph

three of the syllabus, 653 N.E.2d 1196; see, also, Civ.R. 56(C).

       {¶8} The party moving for summary judgment bears the initial burden of

identifying the basis for its motion in order to allow the opposing party a

“meaningful opportunity to respond.” Mitseff v. Wheeler (1988), 38 Ohio St.3d

112, 526 N.E.2d 798, syllabus.      The moving party also bears the burden of

demonstrating the absence of a genuine issue of material fact as to an essential

element of the case. Dresher v. Burt, 75 Ohio St.3d 280, 292, 1996-Ohio-107, 662

N.E.2d 264. Once the moving party demonstrates that he is entitled to summary

judgment, the burden shifts to the non-moving party to produce evidence on any

issue which that party bears the burden of production at trial. See Civ.R. 56(E).

       {¶9} In ruling on a summary judgment motion, a court is not permitted to

weigh evidence or choose among reasonable inferences, rather, the court must

evaluate evidence, taking all permissible inferences and resolving questions of

credibility in favor of the non-moving party. Jacobs v. Racevskis (1995), 105

Ohio App.3d 1, 7, 663 N.E.2d 653. Additionally, Civ.R.56(C) mandates that

summary judgment shall be rendered if the pleadings, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence, and written

stipulations of fact show that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law.




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       {¶10} To prevail in a negligence action, a plaintiff must demonstrate that:

(1) the defendant owed a duty of care to the plaintiff, (2) the defendant breached

that duty, and (3) the defendant’s breach proximately caused the plaintiff to be

injured. Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, 909

N.E.2d 120, at ¶ 10, citations omitted. The applicable duty is determined by the

relationship between the landowner and the plaintiff when the alleged negligence

occurs in a premises-liability context. Id., citing Gladon v. Greater Cleveland

Regional Transit Auth., 75 Ohio St.3d 312, 315, 1996-Ohio-137, 662 N.E.2d 287.

Here, the parties do not dispute that Price was a business invitee of the clinic.

       {¶11} “A shopkeeper ordinarily owes its business 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 v. Best Buy

Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, at ¶ 5, citing

Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203, 480 N.E.2d 474;

Jackson v. Kings Island (1979), 58 Ohio St.2d 357, 390 N.E.2d 810.                  In a

premises-liability action, the plaintiff can prove the defendant’s breach of duty if

any one of three conditions is satisfied:

       (1) the defendant, through its officers or employees, was
       responsible for the hazard complained of; (2) at least one of such
       persons had actual knowledge of the hazard and neglected to
       give adequate notice of its presence or to remove it promptly; or
       (3) such danger 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.


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Case No. 9-10-13



Gouhin v. Giant Eagle, 10th Dist. No. 07AP-548, 2008-Ohio-766, at ¶ 8, citing,

Sharp v. Anderson’s, Inc., 10th Dist. No. 06AP81, 2006-Ohio-4075, at ¶ 7, citing

Johnson v. Wagner Provision Co. (1943), 141 Ohio St. 584, 589, 49 N.E.2d 925.

Further, “[w]hen it is shown that the owner had superior knowledge of the

particular danger which caused the injury, liability attaches because, in such a

case, invitees may not reasonably be expected to protect themselves from a risk

they cannot fully appreciate.” Hairston v. Gary K. Corp., 8th Dist. No. 87199,

2006-Ohio-5566, at ¶ 10, citing Mikula v. Slavin Tailors (1970), 24 Ohio St.2d 48,

263 N.E.2d 316; LaCourse v. Fleitz (1986), 28 Ohio St.3d 209, 503 N.E.2d 159;

see, also, Cochran v. Ohio Auto Club (Oct. 3, 1996), 3rd Dist. No. 9-96-33, 1996

WL 562055.

      {¶12} Moreover,

              [i]n Perry v. Eastgreen Realty Co. (1978), 53 Ohio St.2d 51,
      a per curiam opinion, at pages 52 and 53, it is stated: “* * * once
      the evidence establishes that a dangerous condition existed, and
      that it is a condition about which the owner should have known,
      evidence of actual knowledge on his part is unnecessary.
              ‘The occupier is not an insurer of the safety of invitees,
      and his duty is only to exercise reasonable care for their
      protection. But the obligation of reasonable care is a full one,
      applicable in all respects, and extending to everything that
      threatens the invitee with an unreasonable risk of harm. The
      occupier must not only use care not to injure the visitor by
      negligent activities, and warn him of latent dangers of which the
      occupier knows, but he must also inspect the premises to
      discover possible dangerous conditions of which he does not
      know, and take reasonable precautions to protect the invitee
      from dangers which are foreseeable from the arrangement or


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Case No. 9-10-13


       use. The obligation extends to the original construction of the
       premises, where it results in a dangerous condition.’ Prosser on
       Torts (4 Ed.), 392-93 (1971). See, also, Peaster v. William Sikes
       Post No. 4825 V.F.W. (1966), 113 Ga.App. 211, 147 S.E.2d 686,
       687-8; De Weese v. J.C. Penney Co. (1956), 5 Utah 2d 116, 297
       P.2d 898, 901; Gallagher v. St. Raymond’s Roman Catholic
       Church (1968), 21 N.Y.2d 554, 236 N.E.2d 632, 633-34 (so
       changing the pre-existing common law as to require outdoor
       lighting where none had been requisite); F.W. Woolworth Co. v.
       Bland (1933), 22 Ohio Law Abs. 660, 660-61; 39 Ohio
       Jurisprudence 2d 586-87, Negligence, Section 64. * * *.”

Vondenhuevel v. Overhead Door Corp. (Apr. 26, 1988), 3rd Dist. No. 1-86-23,

1988 WL 40434.

       {¶13} In the case sub judice, Price maintains that the clinic was responsible

for the hazard, i.e. the doors closing while a person was in the threshold, because it

had no policies and procedures for implementing the daily safety checklist

provided to it by Stanley Access Technologies (“Stanley”), the company that

serviced the doors at the clinic, and had no method by which it documented which

employee implemented the checklist on any particular day. In addition, Price

asserts that the clinic was responsible for the hazard because it determined the

length of time the doors would remain open before the doors automatically closed

and because it was informed by a Stanley technician that the OmniScan sensor that

operated the opening and closing of the doors was obsolete and should be

upgraded.

       {¶14} We find Price’s assertion regarding the clinic’s control of the length

of time the doors would remain open before automatically closing has merit. First,


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Case No. 9-10-13


Rich Cole, a supervisor for Stanley, testified about the operation of various

sensors. For instance, Cole testified that one type of threshold sensor, referred to

as the “Stan-Guard,” “looks straight down from the bottom of the header across

the opening of the door to make sure that there’s nobody standing in the opening

of the door.” However, this sensor has a blind spot because of its limited width,

and if there is no movement in the threshold for a certain period of time, the sensor

will “time-out,” resulting in the doors closing. Cole testified that the timer on the

Stan-Guard is determined by the customer and can be set to time-out from

anywhere between thirty seconds and three minutes. He further testified that

because of the Stan-Guard’s limitations, a redundant threshold sensor, referred to

as a “holding beam”, is often used in the sides of the doorway so the door will not

close on someone who is in the threshold. Although Cole was unfamiliar with the

OmniScan sensor and how it operated, his testimony reveals that there are

numerous options available to customers and that it is the customer who chooses

the door and the safety mechanisms that will be installed. Further, a Stanley

technician recommended in June of 2003, that the OmniScan sensors be upgraded.

Although this recommendation was made based upon the sensors being obsolete

rather than because they were not working, the fact that the technician was making

a recommendation to the clinic to upgrade demonstrates that the choice of sensors

was the clinic’s, rather than the service provider’s. Thus, the clinic determined

what safety devices would be utilized.


                                         -9-
Case No. 9-10-13


       {¶15} Second, the testimony of Ralph Neddleton, the Facilities Director for

the clinic, revealed that the clinic chose what company would maintain these doors

and when the doors would be serviced. Further, the clinic knew in September of

2002, that another incident similar to Price’s had occurred when Lee Ann

Murraya, who was utilizing a walker to assist her, was knocked down by the same

doors as she was entering the clinic. Once the clinic knew this type of incident

could happen, it alone had the power to determine whether to have new sensors

installed to accommodate the types of invitees that frequented its establishment or,

if possible on the current sensors, to lengthen the amount of time before the doors

would time-out or adjust the sensors that detected whether someone/something

was in the pathway of the doors to ensure that the doors would not close if

someone was in the threshold. Yet, even after a second similar incident in April of

2004, involving Martha Smith, the record is devoid of any evidence that the clinic

took any measures to protect its invitees from this hazard.

       {¶16} When construing this evidence in a light most favorable to Price, we

find that a genuine issue of material fact exists as to whether the clinic created this

hazard by failing to choose adequate safety measures or otherwise warning its

invitees about the length of time they had to safely traverse the threshold.

       {¶17} Price also maintains that the clinic had actual knowledge of the

hazard and neglected to give adequate notice of its presence or to remove it




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Case No. 9-10-13


promptly. In support of her position, Price relies upon the occurrence of two

similar incidents involving these doors.

       {¶18} In the first incident, the affidavit of Lee Ann Murraya stated that she

was injured at the clinic on September 23, 2002. More specifically, Murraya

averred that she was entering the clinic through the automatic sliding doors at the

main entrance with the aid of her walker when the doors started to close on her.

She attempted to stop the doors but was unable to do so. The doors then knocked

her to the ground. This fall resulted in a broken finger on her right hand. Murraya

further stated that she was immediately taken by wheelchair to a receptionist

where she checked in for her doctor’s appointment. She told the receptionist about

her fall and completed an incident report. Four days later, Murraya was contacted

by a claims specialist from the clinic’s insurance company and her claim was later

settled out of court.

       {¶19} In the second incident, Martha Smith was entering the clinic on

April 20, 2004, aided by the use of a cane, when she was knocked down by the

automatic sliding doors at the main entrance while in the threshold of the doors.

As a result, Smith suffered a broken elbow. Gayle Hayman, who witnessed the

incident, stated that she waited with Smith until employees of the clinic arrived

and placed Smith on a stretcher and removed her from the scene.

       {¶20} When viewed in a light most favorable to Price, this evidence

reveals that the clinic was aware of two prior incidents where people, who were


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unable to walk without assistance, were injured while in the threshold of these sets

of doors. Yet, there is no evidence that the clinic took any steps to alleviate this

problem. While the evidence shows that Stanley conducted routine preventive

maintenance on these doors in March and June of 2003, and the doors were

functioning properly and within ANSI1 standards, there is nothing to indicate that

anyone attempted to determine at any point after Murraya’s fall or Smith’s fall

how long a person could remain in the threshold before the doors would close.

           {¶21} Further, the record is devoid of any evidence that steps were taken

by the clinic to ensure that disabled persons entering the clinic, who require more

time to walk through a doorway than the average non-disabled person, could

safely traverse through the doors. Notably, this is not a general place of business.

This is a medical clinic, catering to the needs of those who may be ill, injured,

and/or disabled. Although the doors may be operating properly and the time-out

setting is satisfactory for the average person using those doors, the clinic was

aware of at least two incidents wherein invitees who had to use assistance in order

to walk were struck by these doors closing on them. At that point, reasonable

minds could conclude that the clinic should have done one of two options: (1)

remedied this problem by installing better sensors that could detect whether an

object was in the threshold, even if that object was immobile, so that the doors

would either not begin to close or not continue to close while someone/something

1
    ANSI is the acronym for the American National Standards Institute.


                                                    -12-
Case No. 9-10-13


was in the path of these doors; or (2) placed some sort of notice in a location easily

observed by those entering and exiting these doors, warning people to use caution

and notifying them that the doors automatically close in “x” amount of time.

Given this evidence, a genuine issue of material fact existed as to whether the

clinic had actual knowledge of the hazard and neglected to give adequate notice of

its presence or to remove it promptly.

        {¶22} In addition, the clinic was made aware of the second incident on

April 20, 2004, some seventeen months prior to Price’s accident. However, the

record reveals only one time that the doors were serviced in any kind of manner

during this time frame.      On that occasion in December of 2004, a service

technician for Thomas Door Controls, Inc. (“Thomas Door”), the company that

was under contract to service the clinic’s doors at that time, came to the clinic.

However, the work order shows that the technician was contacted because of a

“dragging threshold,” which the technician repaired by installing new guide rollers

and a new operator. Nothing in this work order indicates that the technician did

anything with the sensors, testing them for safety or otherwise inspecting them.

Accordingly, reasonable minds could conclude that this hazard existed for a

sufficient length of time, i.e. seventeen months, reasonably to justify the inference

that the failure to warn against it or remove it was attributable to a want of

ordinary care. Thus, there is a genuine issue of material fact as to this issue as

well.


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Case No. 9-10-13


       {¶23} Lastly, a genuine issue of material fact exists as to whether the clinic

failed to take reasonable precautions to protect the invitee, Price, from dangers

which were foreseeable from the arrangement or use of these doors. As previously

noted, this obligation extends to the original installation of these doors, where it

results in a dangerous condition. See Perry, 53 Ohio St.2d at 53, 372 N.E.2d 335.

Therefore, even if these prior incidents did not occur, the clinic should have taken

reasonable precautions to protect its invitees, which undoubtedly included disabled

and ill persons, who often times require more time to walk through a doorway than

the average non-disabled person, by equipping its doors with protection devices to

prevent closure in the event that someone is in the threshold of the door.

       {¶24} In light of the evidence and construing all of the evidence in a light

most favorable to Price, we find that there exists a genuine issue of material fact as

to whether the clinic breached its duty of care to Price, and the trial court erred in

finding otherwise. Nevertheless, the clinic asserts that it did not owe Price a duty

of care because the opening and closing of the doors was an open and obvious

danger. We disagree, as did the trial court.

       {¶25} The Supreme Court of Ohio summarized the case law on the open-

and-obvious doctrine in the following manner:

       “Where a danger is open and obvious, a landowner owes no duty
       of care to individuals lawfully on the premises.” Armstrong v.
       Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d
       1088, syllabus, approving and following Sidle v. Humphrey
       (1968), 13 Ohio St.2d 45, 42 O.O.2d 96, 233 N.E.2d 589. “[T]he


                                        -14-
Case No. 9-10-13


       owner or occupier may reasonably expect that persons entering
       the premises will discover those dangers and take appropriate
       measures to protect themselves.” Simmers v. Bentley Constr. Co.
       (1992), 64 Ohio St.3d 642, 644, 597 N.E.2d 504. Thus, when a
       plaintiff is injured by an open and obvious danger, summary
       judgment is generally appropriate because the duty of care
       necessary to establish negligence does not exist as a matter of
       law. Armstrong ¶ 14-15.

Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, at ¶ 11, 909

N.E.2d 120.

       {¶26} Although a commercial building with automatic sliding doors is very

common place in today’s society, common experience with these doors does not

suggest that they are likely to close in on a person. To the contrary, most expect

that these doors are equipped with safety mechanisms to prevent the door from

closing on a person to prevent injuries from occurring. For instance, these doors

usually begin to close after a certain amount of time but when someone/something

enters the threshold, they cease closing and either remain in their position or begin

to open again. Thus, we do not find that automatic sliding doors pose the open

and obvious danger of closing in on a person and causing injury such that an

owner or occupier may reasonably expect that persons entering the premises will

take appropriate measures to protect themselves.        Accordingly, the open-and-

obvious doctrine does not apply in this case.

       {¶27} For all of these reasons, the first assignment of error is sustained.




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                             Second Assignment of Error

         {¶28} Price maintains in her second assignment of error that the trial court

erred by failing to apply the doctrine of res ipsa loquitur to the premature closing

of the automatic sliding doors. In contrast, the clinic asserts that this doctrine is

inapplicable because the clinic did not have exclusive control over the automatic

doors and two or more equally probable causes exist for the injuries sustained by

Price.

         {¶29} “The res ipsa loquitur doctrine is an evidentiary rule which permits,

but does not require, an inference of negligence when the elements of the doctrine

are shown.” Cochran v. Ohio Auto Club (Oct. 3, 1996), 3rd Dist. No. 9-96-33,

1996 WL 562055, citing Morgan v. Children’s Hospital (1985), 18 Ohio St.3d

185, 480 N.E.2d 464.        Whether the doctrine of res ipsa loquitur applies is

determined on a case-by-case basis. Jennings Buick, Inc. v. Cincinnati (1980), 63

Ohio St.2d 167, 171, 406 N.E.2d 1385.

         To warrant the application of the rule plaintiff must adduce
         evidence in support of two conclusions (1) That the
         instrumentality causing the injury was, at the time of the injury,
         or at the time of the creation of the condition causing the injury,
         under the exclusive management and control of the defendant;
         and (2) that the injury occurred under such circumstances that
         in the ordinary course of events it would not have occurred if
         ordinary care had been observed.

Id. at 170, citing Hake v. George Wiedemann Brewing Co. (1970), 23 Ohio St.2d

65, 66-67, 262 N.E.2d 703; Fink v. New York Cent. R. Co. (1944), 144 Ohio St. 1,



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Case No. 9-10-13


56 N.E.2d 456. “Res ipsa loquitur does not apply where the facts are such that an

inference that the accident was due to a cause other than defendant’s negligence

could be drawn as reasonably as if it was due to his negligence.” Cochran, supra,

citing Greer v. Frazier-Williams Chevrolet-Oldsmobile, Inc. (Apr. 3, 1991), 1st

Dist. No. C-900242.

       {¶30} Here, the clinic asserts that it did not have exclusive management

and control of the door because it contracted with Stanley and later Thomas Door

for the maintenance and inspection of the doors. The clinic also maintains that

there are other efficient and probable causes of Price’s injury that are not

attributable to the negligence of the clinic.

       {¶31} As to the issue of exclusive management and control, Cole testified

that the customer, such as the clinic, signs a contract for preventative maintenance

with the company and the contract terms provide how often maintenance will be

performed.     Further, the customer determines when maintenance will be

performed.    For instance, Cole testified that some customers request that the

Stanley technician call before coming to the customer’s location. Otherwise, the

technician will simply go to the location and inquire of the customer whether “it’s

a good day for the inspection.” (Cole Depo., p. 16-17.) Beyond preventative

maintenance, the service provided by Stanley is at the request of the customer

because “we [Stanley] don’t go somewhere we’re not asked to go.” (id. at p. 18.)




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        {¶32} Neddleton testified that the service contract with Stanley, and later

Thomas Door, was for a yearly inspection of the doors and for any

repairs/maintenance needed on the doors. If a repair was needed, the technician

would provide a service ticket to Neddleton, who would either approve or

disapprove of the repair. Then any approved repairs would be performed by the

technician. Beyond this, the clinic’s maintenance department is not responsible

for the maintenance of the doors but is responsible for making sure that the doors

operate safely at the beginning of each business day. In order to do this, a

maintenance worker unlocks the doors2 and turns them on at approximately 6:30

each morning. The worker then follows a checklist, which is located on the upper

right-hand corner of the outside door frame. This procedure consists of allowing

the doors to “cycle” close, and then the worker walks through both sets of doors

(beginning on the inside of the clinic, as the worker enters the clinic through an

employee entrance) and back through them. This walk-through is done one time.

However, this does not include stopping in the threshold to determine whether the

doors will close on the worker.

        {¶33} A review of the evidence also reveals that Stanley conducted

preventative maintenance in March and June of 2003, and at that time the

threshold scan and/or safety beams were working properly and within ANSI



2
  Neddleton testified that security for the clinic locks the doors each night between 10:00 p.m. and 10:30
p.m.


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Case No. 9-10-13


standards. The only other documentation regarding the servicing of these doors

was in December of 2004. At that time, the work order shows that a Thomas Door

technician was contacted because of a “dragging threshold.” This document states

in a section entitled “Service Performed” that the technician, “REMOVED

DOORS. INSTALLED NEW BOTTOM GUIDE ROLLERS AND INSTALLED

NEW OPERATOR. SET & ADJUST. AS NEEDED. WORKING GREAT AT

THIS TIME.” However, nothing in this work order indicates that the technician

did anything else with the door, including with the sensors, such as testing them

for safety or otherwise inspecting them, or that the technician was making any

representations as to whether the sensors on the door were within ANSI standards.

       {¶34} Price was injured in September of 2005, some nine months after this

last service.   During this time, the evidence reveals that the only people

responsible for ensuring that the doors worked properly and safely were the

employees in the clinic’s maintenance department. While anyone entering and

exiting the clinic was capable of activating the doors by merely entering the

pathway of the sensors responsible for automatically opening the doors, the record

is devoid of any evidence that the general public could manipulate the activity

and/or sensitivity of the sensors either purposely or inadvertently or, more

importantly, could make decisions about the timing of the sensors or the closing of




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Case No. 9-10-13


the doors.3

         {¶35} Further, the clinic exerted exclusive management and control over

when these doors were accessible to the public by locking them at night and

unlocking them in the morning. Neddleton also provided testimony as to what

would happen if the doors did not function properly, such as shutting them down

in the event that they malfunctioned or securing them in an open position if there

was an operational problem. (Neddleton Depo., pp. 27, 30.) Thus, the evidence

when viewed in a light most favorable to Price indicates that the clinic had the sole

power to determine when and if the public would have access to these doors.

         {¶36} Moreover, the clinic determined what kind of doors it would have,

what sensors it wanted on these doors,4 what company would maintain these

doors, and when the doors would be serviced. Further, once the clinic knew of

two other incidents similar to Price’s, it alone had the power to determine whether

to have new sensors installed to accommodate the types of invitees that frequented

its establishment or, if possible on the current sensors, to lengthen the amount of

time before the doors would time-out or adjust the sensors that detected



3
  We find the cases cited by the clinic regarding public access to instrumentalities causing an invitee injury
to be inapposite to the case sub judice. Rather, those cases involved situations wherein the public’s access
to these things could have as readily resulted in the injuries to the plaintiff as any act or omission by the
defendant-business. See e.g., Hansen v. Wal-Mart Stores, 4th Dist. No. 07CA2990, 2008-Ohio-2477
(merchandise display was in location that customers could access and manipulate).
4
  The June, 2003, work order of Stanley indicated that the Stanley technician recommended the OmniScan
sensors be upgraded. As noted, this recommendation was made based upon the sensors being obsolete,
rather than because they were not working. The fact that the technician was making a recommendation to
the clinic to upgrade obviates the fact that the choice of sensors was the clinic’s, rather than the service
provider’s.


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whether someone/something was in the pathway of the doors.

      {¶37} For all of these reasons, we find that Price presented sufficient

evidence that at the time of her injury, the doors were under the exclusive

management and control of the clinic.

      {¶38} Our inquiry does not end there, however. The next question is

whether the injury occurred under such circumstances that in the ordinary course

of events it would not have occurred if ordinary care had been observed. Several

courts have concluded that “[a]utomatic doors do not, in the ordinary course of

things, cause injury to those who pass through them.” Brown v. Scrivner, Inc.

(1992), 241 Neb. 286, 488 N.W.2d 17, 19, see, also, Rose v. Port of New York

Auth. (1972), 61 N.J. 129, 293 A.2d 371, 375 (holding that “[m]embers of the

public passing through automatic doors, whether in an airport, office building or

supermarket do so generally, without sustaining injury. What happened to the

plaintiff here is fortunately unusual and not commonplace. It strongly suggests a

malfunction which in turn suggests neglect.”) (noted in Prosser and Keeton on the

Law of Torts (W. Keeton 5th ed. 1984)); Landmark Hotel & Casino, Inc. v. Moore

(1988), 104 Nev. 297, 757 P.2d 361, 364 (finding that “[a]utomatic sliding glass

doors * * * are ubiquitous, affording the public safe ingress and egress to

countless facilities on a daily basis. What happened to Moore is unusual; it

strongly suggests a malfunction attributable to negligence.”). But see, Hisey v.

Cashway Supermarkets, Inc. (1967), 77 N.M. 638, 426 P.2d 784.


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       {¶39} We agree with those courts that have found that automatic doors do

not ordinarily close on a person absent negligence.       Nevertheless, the clinic

maintains that there is more than one reasonable probable cause of the doors

closing on Price, which is not attributable to the clinic’s negligence: (1) the

manufacturer’s limit to a maximum of three minutes for the doors to remain open

when Price may have needed more time to traverse the doors; (2) poor design of

the sensor that may not have “seen” Price while she was standing in that area of

the door; and (3) Price’s failure to position herself where the sensors could detect

her or “to move quickly enough to have avoided the closing door.”

       {¶40} What the clinic fails to acknowledge is that none of these

contentions alleviates its knowledge of the door’s sensors and thus, its negligence

in failing to address these issues. The clinic knew the make-up of its clientele.

The clinic would be the party with the knowledge about what doors it used and

what type of timing the sensors had. The clinic knew of two other incidents

wherein disabled invitees were injured when they did not “move quickly enough”

to avoid being struck by the closing automatic doors. Yet, the record is devoid of

any evidence that the clinic did anything to obtain more sensitive sensors, lengthen

the amount of time before the doors timed-out, if possible, or otherwise warn its

disabled invitees to stay in the path of the sensors and/or “move quickly enough to

avoid injury.” Further, there is nothing in the record to show that Price acted in

any negligent manner. Her undisputed testimony demonstrates that she merely


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Case No. 9-10-13


attempted to walk through the doorway as one would ordinarily do, albeit slowly

due to the fact that she needed a walker to walk, having had six hip replacements

in her lifetime. Simply not having the agility to avoid being hit by a closing door

does not amount to negligence. Therefore, we find that Price was injured under

such circumstances that in the ordinary course of events would not have occurred

if ordinary care had been observed. Accordingly, the doctrine of res ipsa loquitur

does apply, and the first assignment of error is sustained.

       {¶41} For all of these reasons, the judgment of the Common Pleas Court of

Marion County, Ohio, is reversed and the cause remanded for further proceedings

consistent with this opinion.

                                         Judgment Reversed and Cause Remanded


WILLAMOWSKI, P.J., and ROGERS, J., concur.

/jnc




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