[Cite as Preston v. Ohio State Univ. Med. Ctr., 2011-Ohio-3898.]




                                                         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




CYNTHIA D. PRESTON

        Plaintiff

        v.

THE OHIO STATE UNIVERSITY MEDICAL CENTER

        Defendant

        Case No. 2010-05676

Judge Clark B. Weaver Sr.

DECISION


        {¶ 1} This case is sua sponte assigned to Judge Clark B. Weaver Sr. to conduct
all proceedings necessary for decision in this matter.
        {¶ 2} On April 11, 2011,             defendant filed a motion for summary judgment
pursuant to Civ.R. 56. Plaintiff did not file a response. The motion is now before the
court for a non-oral hearing. See Civ.R. 56 and L.C.C.R. 4.
        {¶ 3} Civ.R. 56(C) states, in part, as follows:
        {¶ 4} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, 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. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317.
      {¶ 5} On April 1, 2008, plaintiff was admitted to defendant’s hospital for treatment
of the condition of preeclampsia, which is high blood pressure during pregnancy. On
April 3, 2008, plaintiff took a bath in Room 692 of the hospital. While attempting to exit
the bathtub, plaintiff reached for the railing, which came loose from the wall, causing her
to fall. Plaintiff alleges that she sustained permanent injuries to her head, neck, back,
and legs as a result of defendant’s negligent maintenance of its premises. Plaintiff
further alleges that as a result of defendant’s negligence, she gave birth to a premature
baby with permanent disabilities on April 4, 2008.
      {¶ 6} In order for plaintiff to prevail upon her claim of negligence, she must prove
by a preponderance of the evidence that defendant owed her a duty, that defendant’s
acts or omissions resulted in a breach of that duty, and that the breach proximately
caused her 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.
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 * * *.”
Armstrong, supra, at 80.
      {¶ 7} “The duty of ordinary care includes maintaining the premises in a
reasonably safe condition and inspecting the premises to discover hidden or latent
dangers. Perry v. Eastgreen Realty Co. (1978), 53 Ohio St.2d 51, 52. The owner of
premises is liable to an invitee for injuries caused by latent defects when the owner
knows, or in the exercise of ordinary care should have known, about the hazard for a
time sufficient to correct the defect. Presley v. Norwood (1973), 36 Ohio St.2d 29, 31;
see, also, Restatement of the Law 2d, Torts (1965) 215, Section 343.” Tarkany v.
Board of Trustees of Ohio State Univ. (June 4, 1991), Franklin App. No. 90AP-1398.
The distinction between actual and constructive notice is in the manner in which notice
is obtained rather than in the amount of information obtained. Whenever the trier of fact
is entitled to find from competent evidence that information was personally
communicated to or received by the party, the notice is actual. Constructive notice is
that notice which the law regards as sufficient to give notice and is regarded as a
substitute for actual notice. In re Estate of Fahle (1950), 90 Ohio App. 195, 197.
        {¶ 8} In support of its motion, defendant submitted the affidavit of Paul Willis, who
avers as follows:
        {¶ 9} “1. I am currently employed as a full time employee by The Ohio State
University Medical Center (‘OSUMC’) as a Zone Technician 3 in the facilities services
department. During April 2008, I worked this same position;
        {¶ 10} “2. I have personal knowledge, and I am competent to testify to the facts
contained in this Affidavit;
        {¶ 11} “3. During April, 2008, my assignment included the 6th Floor of Doan Hall,
which included room 692. Neither I nor my department had notice of the bathtub railing
being loose in Doan Hall Room 692 prior to Cynthia Preston’s alleged fall on April 3,
2008;
        {¶ 12} “4. The OSUMC maintenance department regularly conducts inspections
of its bathtub railings, like the one in Doan Hall, Room 692, whenever doing other
maintenance projects in the bathrooms. In addition, the cleaning staff and nursing staff
are frequently cleaning or preparing the bathtubs for patient use.             Whenever a
maintenance problem is discovered, the cleaning staff or nursing staff is to notify the
maintenance staff. I am not aware of any evidence that someone on the cleaning or
nursing staffs saw the loose railing but never notified the maintenance department;
        {¶ 13} “5. On April 4, 2008, I responded to the maintenance request and fixed
the loose railing on [sic] in Room 692. The bathtub railings are attached to the wall with
four anchors. I discovered that one anchor was loose, and that part of the railing did
move a couple of inches. However, the rest of the railing did not budge from the wall.”
       {¶ 14} In addition, defendant submitted the affidavits of Karen Stone, patient care
assistant, Darla Miller, R.N., and Karen Phelps, R.N., who all aver that they were
assigned to care for plaintiff at various times during her stay at defendant’s hospital from
April 3-4, 2008, but did not have notice that the bathtub railing in Doan Hall Room 692
may have been loose prior to plaintiff’s fall.
       {¶ 15} Civ.R. 56(E) states, in part: “When a motion for summary judgment is
made and supported as provided in this rule, an adverse party may not rest upon the
mere allegations or denials of the party’s pleadings, but the party’s response, by
affidavit or as otherwise provided in this rule, must set forth specific facts showing that
there is a genuine issue for trial. If the party does not so respond, summary judgment, if
appropriate, shall be entered against the party.”
       {¶ 16} Plaintiff did not file a response to defendant’s motion.      Construing the
evidence most strongly in plaintiff’s favor, the court finds that defendant had neither
constructive nor actual notice of the defective condition of the bathtub railing prior to
plaintiff’s fall. Therefore, the court finds that there exists no genuine issue as to any
material fact and that defendant is entitled to judgment as a matter of law. Inasmuch as
the court has found that defendant did not commit a breach of its duty of care owed to
plaintiff, the issue of proximate cause of injury to either plaintiff or to her baby is not
before the court. Based upon the foregoing, defendant’s motion for summary judgment
shall be granted and judgment shall be rendered in favor of defendant.
                                               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




CYNTHIA D. PRESTON

      Plaintiff

      v.

THE OHIO STATE UNIVERSITY MEDICAL CENTER

      Defendant
      Case No. 2010-05676

Judge Clark B. Weaver Sr.

JUDGMENT ENTRY




       A non-oral hearing was conducted in this case upon defendant’s motion for
summary judgment.       For the reasons set forth in the decision filed concurrently
herewith, defendant’s motion for summary judgment is GRANTED and judgment is
rendered in favor of defendant. Court costs are assessed against plaintiff. The clerk
shall serve upon all parties notice of this judgment and its date of entry upon the journal.



                                          _____________________________________
                                          CLARK B. WEAVER SR.
                                          Judge
cc:
Daniel R. Forsythe                Cynthia D. Preston
Karl W. Schedler                  3117 Easthaven Drive South
Assistant Attorneys General       Columbus, Ohio 43232
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

HTS/cmd
Filed July 1, 2011
To S.C. reporter August 2, 2011
