[Cite as Smith v. Frederick C. Smith Clinic, 189 Ohio App.3d 473, 2010-Ohio-4548.]




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



SMITH, EXR.,                                                       CASE NO. 9-09-50

   APPELLANT,

  v.

FREDERICK C. SMITH                                                    OPINION
CLINIC ET AL.,

   APPELLEES.



                 Appeal from Marion County Common Pleas Court
                           Trial Court No. 08 CV 0124

                      Judgment Reversed and Cause Remanded

                         Date of Decision: September 27, 2010




APPEARANCES:

        Robert E. Wilson, for appellant.

        James P. Myers, for appellees.


        SHAW, Judge.
Case No. 9-09-50


          {¶ 1} Plaintiff-appellant, Randy Smith, executor of the estate of Martha

Smith, deceased, appeals the 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 L.L.C. (“the clinic”) and

dismissing his complaint against them.

          {¶ 2} On April 20, 2004, Martha was entering the clinic, 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. Gayle Hayman, who had witnessed

the incident, waited with Martha until employees of the clinic arrived and placed

Martha on a stretcher and removed her from the scene. As a result of this incident,

Martha suffered a broken elbow.

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

on March 7, 2006, against the clinic and “John Doe No. 1 Corporation and John

Doe No. 2 Individual” for the injuries she sustained from the accident. On June 15,

2005, Martha died from causes unrelated to the injuries she sustained in this

matter, and, on July 15, 2005, her son, Randy, was appointed executor of her

estate.

          {¶ 4} On February 15, 2007, the complaint was voluntarily dismissed

pursuant to Civ.R. 41(A)(2). On February 8, 2008, Randy, as executor, refiled the

complaint against the clinic and The Stanley Works, Stanley Access Technologies,




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Case No. 9-09-50


and Stanley Magic-Door, Inc. (“Stanley”), the manufacturer and provider of

preventative maintenance for the doors by contract.

         {¶ 5} On February 25, 2008, and April 7, 2008, respectively, the clinic and

Stanley filed their answers. Thereafter, on June 20, 2008, and July 24, 2008,

respectively, the clinic and Stanley filed motions for summary judgment. On

February 10, 2009, Randy filed a response to the clinic’s motion, but on February

12, 2009, Randy voluntarily dismissed Stanley. On February 27, 2009, the clinic

filed a reply and memorandum in support of its motion for summary judgment.

         {¶ 6} On October 16, 2009, the trial court granted the clinic’s motion for

summary judgment, finding that the automatic sliding doors were an open and

obvious danger for which the clinic owed no duty to warn Martha. On November

12, 2009, the trial court filed a journal entry dismissing the action with prejudice.

         {¶ 7} This appeal followed, and Randy 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



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Case No. 9-09-50


       a business invitee and fails to remedy that hazard which causes an
       injury to a subsequent business invitee.

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

out of the order in which they appear.

                             Second Assignment of Error

       {¶ 9} In Randy’s second assignment of error, he 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 Martha based upon its failure to provide a warning about not stopping on

the threshold, its creation of the hazard, and its failure to remedy the hazard after it

existed for 19 months.

       {¶ 10} 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, 3d Dist. No. 1-06-03, 2006-Ohio-2797, citing Lorain

Natl. 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. Summary judgment requires the moving party to establish the

following:

               [W]hen, 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,


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Case No. 9-09-50


         that reasonable minds could only conclude in favor of the moving
         party.

Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196,

paragraph three of the syllabus. See also Civ.R. 56(C).

         {¶ 11} 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 (1996), 75 Ohio St.3d 280, 292, 662 N.E.2d

264.     Once the moving party demonstrates that he is entitled to summary

judgment, the burden shifts to the nonmoving party to produce evidence on any

issue about which that party bears the burden of production at trial. See Civ.R.

56(E).

         {¶ 12} 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 nonmoving 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



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Case No. 9-09-50


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.

          {¶ 13} 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. (Citations omitted.) Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120,

2009-Ohio-2495, 909 N.E.2d 120, at ¶ 10. 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. (1996), 75 Ohio St.3d 312, 315, 662 N.E.2d

287. Here, the parties do not dispute that Martha was a business invitee of the

clinic.

          {¶ 14} “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:




                                            -6-
Case No. 9-09-50


              [T]he 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.

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), 3d Dist. No. 9-96-33, 1996

WL 562055.

      {¶ 15} Moreover:

             In Perry v. Eastgreen Realty Co. (1978), 53 Ohio St.2d 51, a
      per curiam opinion, at pages 52 and 53, it is stated: “[O]nce 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


                                        -7-
Case No. 9-09-50


      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 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), 3d Dist. No. 1-86-23,

1988 WL 40434, 1.

      {¶ 16} In the case sub judice, Randy 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, 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, Randy

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




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Case No. 9-09-50


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

upgraded.

       {¶ 17} We find that Randy’s assertion regarding the clinic’s control of the

length of time the doors would remain open before automatically closing has

merit. First, 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 30 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 2003 that the OmniScan sensors be upgraded.

Although this recommendation was made based upon the sensors’ being obsolete


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Case No. 9-09-50


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.

       {¶ 18} 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

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

Murraya, who was using a walker, 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.           In the

alternative, if possible on the current sensors, it could have lengthened the amount

of time before the doors would time-out or it could have adjusted 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.

       {¶ 19} When construing this evidence in a light most favorable to Randy,

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.




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       {¶ 20} Randy also maintains that the clinic had actual knowledge of the

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

promptly. In support of his position, Randy relies upon the previously noted prior

occurrence of a similar incident involving these doors.

       {¶ 21} In this 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.

       {¶ 22} When viewed in a light most favorable to Randy, this evidence

reveals that the clinic was aware of a prior incident in which a woman, who was

unable to walk without assistance, was 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 after the first incident. While the evidence shows that Stanley conducted

routine preventive maintenance on these doors in March and June 2003 and the


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Case No. 9-09-50


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 how

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

           {¶ 23} 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 nondisabled person, could safely

traverse through the doors. Notably, 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 that a previous invitee who had to use

assistance in order to walk was struck and injured by these doors. At that point,

reasonable minds could conclude that the clinic should have pursued one of two

options: (1) remedy 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 was in the path of these doors, or (2) place 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, we find that a genuine issue of material fact




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


                                                    -12-
Case No. 9-09-50


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.

       {¶ 24} In addition, the clinic was made aware of this incident on September

23, 2002, some 19 months prior to Martha’s accident.           However, the record

reveals only two times that the doors were inspected, and neither of these indicates

that the clinic ever attempted to evaluate whether it needed to obtain more

sensitive sensors or install sensors that could detect when someone/something was

in the threshold, whether that person was mobile or stationary. Accordingly,

reasonable minds could conclude that this hazard existed for a sufficient length of

time, i.e., 19 months, to reasonably 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.

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

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

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

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

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

Therefore, even if this prior incident had not occurred, the clinic should have taken

reasonable precautions to protect its invitees, who undoubtedly included disabled

and ill persons and oftentimes require more time to walk through a doorway than




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the average nondisabled person, by equipping its doors with protection devices to

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

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

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

as to whether the clinic breached its duty of care to Martha, and the trial court

erred in finding otherwise. Nevertheless, the clinic asserts that it did not owe

Martha 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.

       {¶ 27} 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 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 at ¶ 14-15.

Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d

120., at ¶ 11.

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

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



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suggest that they are likely to close 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 or something

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

reopen. Thus, we do not find that automatic sliding doors pose the open and

obvious danger of closing on a person and causing injury so that an owner or

occupier may reasonably expect that persons entering the premises will take

appropriate measures to protect themselves.2 Accordingly, the open-and-obvious

doctrine does not apply in this case.

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

                                     First Assignment of Error

         {¶ 30} Randy contends in his first 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



2
  The dissent cites a number of cases, many of which are from courts in Michigan, in support of its position
that the open-and-obvious doctrine should apply in this case. A review of those cases reveals that those
decisions are inapposite to the case sub judice. In fact, most of those cases did not involve automatic
sliding doors that retract to the sides, as is the case sub judice, but were automatic hinged doors. We find a
distinct difference as to the open and obvious danger presented by automatic hinged doors, which need
space to open and can actually open and hit a person who is in the path of the doors, and the type of doors
at issue in this case, which do not present such dangers in their normal operation.


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Martha.

      {¶ 31} “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), 3d Dist. No. 9-96-33, 1996

WL 562055, citing Morgan v. Children’s Hosp. (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. RR. Co. (1944), 144 Ohio St.

1, 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, 3d Dist.

No. 9-96-33, 1996 WL 562055, *4, citing Greer v. Frazier-Williams Chevrolet-

Oldsmobile, Inc. (Apr. 3, 1991), 1st Dist. No. C-900242.




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

and control of the door because it contracted with Stanley for the maintenance and

inspection of the doors. The clinic also maintains that there are other efficient and

probable causes of Martha’s injury that are not attributable to the negligence of the

clinic.

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

that the customer, such as the clinic, signs a contract for preventive 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.”        Beyond preventive maintenance, the service

provided by Stanley is at the request of the customer: “[W]e [Stanley] don’t go

somewhere we’re not asked to go.”

          {¶ 34} Neddleton testified that the service contract with Stanley was for a

yearly inspection of the doors and for any repairs or maintenance needed on the

doors. If a repair was needed, the technician would provide a service ticket to

Neddleton, who would either approve or not approve 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


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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 doors3 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” and 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 check does not

include stopping in the threshold to determine whether the doors will close on the

worker.

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

preventive maintenance in March and June 2003 and at that time, the threshold

scan and/or safety beams were working properly and within ANSI standards.

           {¶ 36} Martha was injured in April 2004, some ten 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




3
    Neddleton testified that security for the clinic locks the doors each night between 10:00 and 10:30.


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Case No. 9-09-50


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 the doors.4

         {¶ 37} 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. Thus, the evidence when viewed in a light most

favorable to Randy indicates that the clinic had the sole power to determine when

and if the public would have access to these doors.

         {¶ 38} Moreover, as previously noted, the clinic determined what kind of

doors it would have, what sensors it wanted on these doors, what company would

maintain these doors, and when the doors would be serviced. Further, once the

clinic knew of another incident similar to Martha’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




4
  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).


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Case No. 9-09-50


lengthen the amount of time before the doors would time-out or adjust the sensors

that detected whether someone or something was in the pathway of the doors.

      {¶ 39} For all of these reasons, we find that Randy presented sufficient

evidence that at the time of Martha’s injury, the doors were under the exclusive

management and control of the clinic.

      {¶ 40} 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 (“[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 & Keeton, Law of Torts (5th

Ed.1984)); Landmark Hotel & Casino, Inc. v. Moore (1988), 104 Nev. 297, 757

P.2d 361, 364 (“[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




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negligence”). But see Hisey v. Cashway Supermarkets, Inc. (1967), 77 N.M. 638,

426 P.2d 784.5

        {¶ 41} 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 door’s

closing on Martha that 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 Martha may have needed more time to traverse the doors, (2) poor design of

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

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

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

        {¶ 42} 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 another incident wherein

a disabled invitee was injured when she 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



5
  Once again the dissent relies on a number of cases that are factually distinguishable from the case sub
judice to avoid application of the doctrine of res ipsa loquitor.


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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 Martha had

acted in any negligent manner. Hayman’s undisputed affidavit demonstrates that

Martha merely attempted to walk through the doorway as one would ordinarily do,

albeit slowly because she needed a cane to walk. Simply not having the agility to

avoid being hit by a closing door does not amount to negligence. Therefore, we

find that Martha 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.

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

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

proceedings consistent with this opinion.

                                                                Judgment reversed

                                                              and cause remanded.

       ROGERS, J., concurs.

       Preston, J., dissents.

                                __________________

       PRESTON, J., dissenting.




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       {¶ 44} The majority’s opinion fails to hold Randy to his reciprocal burden

under Civ.R. 56(E) to set forth facts showing a genuine issue for trial. As a result

of this fundamental error, the majority opinion incorrectly concludes that a

question of fact remains, fails to apply the open-and-obvious doctrine, and

incorrectly applies the doctrine of res ipsa loquitur. Therefore, I respectfully

dissent.

       {¶ 45} The Smith Clinic moved for summary judgment primarily for two

reasons: (1) that plaintiff failed to demonstrate a breach of duty and (2) that it

owed Martha no duty of care since the automatic doors’ normal operation was an

open and obvious danger. In his response brief at trial and on appeal, Randy

offered no argument regarding the application of the open-and-obvious doctrine to

the normal operation of the automatic doors; rather, Randy argued that the

doctrine of res ipsa loquitur applied and that evidence existed demonstrating a

breach of the clinic’s duty of care. In fact, the trial court noted Randy’s lack of

argument in its judgment entry: “Plaintiff did not address this issue in its response

brief and therefore has not raised any genuine issue of material fact with regards to

the operation of the open and obvious doctrine.”

       {¶ 46} Nevertheless, the majority concludes—with little analysis—that the

open-and-obvious doctrine does not apply to the automatic doors in this case.

Several courts have concluded otherwise when, like here, there is no evidence that

the automatic doors malfunctioned. Brown v. Pet Supplies Plus (Aug. 26, 1999),


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7th Dist. No. 98 CA 9; Cassani v. Meijer, Inc., (Mich.Ct.App.2003), No. 240486,

2003   WL     1365919,    at   *1;   Rummel    v.   Henry   Ford    Health    Sys.

(Mich.Ct.App.2007), No. 271563, 2007 WL 1791955, at *1. See also Mann v.

Tractor Supply Co. (S.D.Ohio 2010), No. 2:08-cv-569, 2010 WL 1856312, at *4-5

(open-and-obvious    doctrine does    not apply when the automatic door

malfunctions); Horvath v. Fisher Foods, Inc. (App.1963), 93 Ohio Law Abs. 182,

194 N.E.2d 452, 455 (question of fact concerning abnormal operation of

automatic door); Hoganson v. Menard, Inc. (W.D.Mich.2007), No. 2:04-cv-299,

2007 WL 4395534 (same).        The evidence in this case demonstrated that the

automatic doors were inspected just months prior to Martha’s accident and found

to be working within ANSI safety standards. But for the accidents, there is simply

a lack of evidence indicating a door malfunction in this case, and to avoid

summary judgment, Randy was required under Civ.R. 56(E) to set forth specific

facts indicating a malfunction. As an additional matter, the warning that Randy

suggests should have been provided to patrons—“[d]on’t stop on the threshold”—

declares the open-and-obvious nature of the hazard upon ordinary inspection by a

reasonable person.

       {¶ 47} The majority also incorrectly concludes that a question of fact

remains concerning a breach of duty. Like in Gouhin v. Giant Eagle, there was

simply a lack of evidence in this case demonstrating a breach of duty. 10th Dist.

No. 07AP-548, 2008-Ohio-766. Rich Cole’s testimony concerning the operation


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of the Stanley “Stan-Guard” sensor is irrelevant to show a breach of duty because

the Smith Clinic’s automatic doors were equipped with “Omni-Scan” sensors.

When asked how Stan-Guard sensors differed from Omni-Scan sensors, Cole

testified, “I don’t know. I don’t know what an OmniScan is or does. * * * [a]nd I

had never heard of them before I saw it on the document here.” When asked if

Stan-Guard sensors were technologically superior to Omni-Scan sensors, Cole

testified, “Not better, just different. I don’t know that it was better or not, I don’t

know what the OmniScan was, what it did.” In fact, the record indicates that Cole

has never even seen the clinic’s automatic doors or sensors. Despite Cole’s lack

of knowledge and his testimony that the clinic’s OmniScan sensor was operating

within ANSI safety standards, the majority concludes that the clinic’s ability to

replace the OmniScan sensors with better or additional safety sensors—including

those not required by ANSI safety standards—demonstrates a breach of the

clinic’s duty.

       {¶ 48} The majority’s decision is even more troubling because, in practice,

it requires business owners to install safety devices beyond those ANSI safety

standards require—at least to avoid tort liability.      For example, the majority

suggests that the clinic should have installed a sensor that would have held the

doors open when someone/something was in the door’s path and immobile. This

would have probably required that the clinic install a “holding beam,” which Cole

testified that ANSI safety standards did not require at that time. The Smith Clinic


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could have reasonably relied upon Stanley Door’s conclusion that their automatic

doors were compliant with ANSI safety standards. Reliance upon these national

standards provides businesses with guidance in maintaining safe automatic doors.

The majority’s opinion undermines this guidance and reliance. The majority has

inappropriately replaced ANSI safety standards with its own.

       {¶ 49} The majority also errs in concluding that the doctrine of res ipsa

loquitur applies in this case. Again, Randy has failed to meet his burden to

“adduce evidence” in support of the doctrine’s two required conclusions. Jennings

Buick, Inc. v. Cincinnati (1980), 63 Ohio St.2d 167, 171, 406 N.E.2d 1385. In his

response to the clinic’s motion for summary judgment, Randy merely alleged:

“There should be no dispute * * * that at the time of the injury * * * the sliding

glass doors to the main entrance to the Fredrick C. Smith Clinic was under the

exclusive management and control of the defendant.” Likewise, on appeal, Randy

failed to point to any evidence in the record upon which a rational trier of fact

could conclude that the automatic doors were in the clinic’s exclusive

management and control. In fact, Randy mistakenly asserted: “It is unrefuted that

Defendant Clinic had exclusive management and control of the automatic sliding

doors during the time in question.” The clinic, both in its reply brief in the trial

court and in its appellate brief, strongly refuted that the automatic doors were in

their exclusive control and management. Further, Randy has filed no reply brief

with this court. Aside from that, the doctrine is inapplicable here because the


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evidence affirmatively demonstrated that the accident could have occurred even if

the OmniScan sensor was functioning properly and the doors were equipped with

holding beams.

       {¶ 50} Furthermore, the Court of Appeals in Ohio has rejected the

application of the doctrine, finding that the business owners did not have exclusive

management and control of the automatic doors since patrons control the doors’

operation. Knox v. Bag-N-Save Foods (Apr. 8, 1999), 5th Dist. No.

1998AP080100, at *3; Lewis v. Newburg Supermarket (Sept. 24, 1998), 8th Dist.

No. 73238, at *4. See also Farina v. First Natl. Bank (1943), 72 Ohio App. 109,

51 N.E.2d 36 (manual revolving bank door). One district in Ohio found the

doctrine applicable where the evidence affirmatively demonstrated “that automatic

doors, when properly operating, do not close on people.” Musial v. Tamarkin Co.

(Sept. 1, 1994), 7th Dist. No. 93 C.A. 40, at *1. Cole’s testimony here was exactly

the opposite. The majority ignores these Ohio decisions, and instead, relies upon

cases from other states to reach its decision.

       {¶ 51} For all these reasons, I respectfully dissent. I would overrule the

assignments of error and affirm the trial court’s grant of summary judgment.




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