[Cite as Thayer v. B.L. Bldg. & Remodeling, L.L.C., 2018-Ohio-1197.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 105950




                           SUZANNE THAYER, ET AL.
                                                          PLAINTIFFS-APPELLANTS

                                                    vs.

       B.L. BUILDING & REMODELING, L.L.C., ET AL.

                                                          DEFENDANTS-APPELLEES




                                     JUDGMENT:
                                 REVERSED; REMANDED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-16-863454

        BEFORE:         E.A. Gallagher, A.J., Stewart, J., and Laster Mays, J.

        RELEASED AND JOURNALIZED:                         March 29, 2018
ATTORNEYS FOR APPELLANTS

Michael D. Shroge
Plevin & Gallucci Co., L.P.A.
55 Public Square, Suite 2222
Cleveland, Ohio 44113

Paul W. Flowers
Paul W. Flowers Co., L.P.A.
Terminal Tower, Suite 1910
50 Public Square
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEES

Colleen A. Mountcastle
Gary L. Nicholson
Todd M. Haemmerle
Gallagher Sharp L.L.P.
Buckley Building, Sixth Floor
1501 Euclid Avenue
Cleveland, Ohio 44115
EILEEN A. GALLAGHER, A.J.:

       {¶1} Plaintiffs-appellants Suzanne Thayer (“Thayer”) and Mark Thayer

(collectively, “appellants”) appeal from the trial court’s order granting summary judgment

in favor of defendant-appellee B.L. Building & Remodeling, L.L.C. (“B.L. Building”) on

their negligence claim arising out of a trip-and-fall accident. For the reasons that follow,

we reverse the trial court’s judgment and remand the matter for further proceedings.

       Factual and Procedural Background

       {¶2} On June 18, 2014, Thayer, a registered nurse, was working the night shift

(7:00 p.m. to 7:00 a.m.) in the labor and delivery department of St. John Medical Center

(“St. John’s”) in Westlake, Ohio. She began working at St. John in May 2014 as a PRN

nurse, working 12 to 24 hours a week on average, after working 20 years as a labor and

delivery nurse at Mercy Hospital f.k.a. Lorain Community Hospital.

       {¶3} At some point during her shift, Thayer and another nurse, Kristin Mulica,

went into the kitchenette area of the labor and delivery floor to get a beverage and ice for

a patient’s husband.    The kitchenette contained a refrigerator, ice machine, coffee

machine, microwave and a table and chairs where patients’ families could sit and wait.

At the time, the kitchenette was being remodeled and was under construction. Thayer

and Mulica testified that the nurses had not been given prior notice of the construction

and that they first learned the kitchenette was being remodeled when they entered the area

that evening.
         {¶4} B.L. Building was the contractor hired to remodel the kitchenette. Prior to

the construction, the kitchenette had been open. Brian Landon, the company’s owner

and president, testified that his company had been installing new railings for St. John’s

when the hospital’s director handed him a sketch and asked if he could close off the

kitchenette to make it more private.              Landon testified that the project involved

constructing a partial wall and installing a three-foot-by-seven-foot door and a

three-foot-by-six-foot window.1 He testified that B.L. Building used drywall, metal studs

and a metal sill to create a “pictured framed window opening.” The hospital supplied the

door.

         {¶5} On the evening of June 18, 2014, the opening for the window had been

partially constructed, but glass had not yet been placed in the window opening.2 The

base of the partially constructed window opening was approximately 12 inches from the

floor.

         {¶6}    Thayer testified that she was conversing with Mulica and Jennifer

Campbell, M.D., an OB hospitalist at St. John’s, as she entered the kitchenette. Thayer

testified that she was “not sure” how she entered the kitchenette but stated that she “did



       At his deposition, Landon testified that, prior to the project, the opening for the kitchenette
         1


was “an 8 to a 10-foot opening.” In an affidavit submitted in support of B.L. Building’s motion for
summary judgment, he testified that the opening was “approximately 7 feet by 13 feet.”

          It is not clear from the record whether the door had yet been installed. Although Campbell
         2


testified that she entered the kitchenette through the door, Thayer could not recall if there were “one
or two openings” in the wall at the time of her fall or whether the “strip [of wall] in the middle that
separates the door from the window” was yet in place.
not walk over anything.”         Mulica testified that when she and Thayer entered the

kitchenette, they were “focused on what the patient asked for, and we were getting her

that item, so that was our focus” and that they did not discuss the construction.

Campbell, who was in the kitchenette getting ice water, testified that she entered the

kitchenette by walking through the door.3

        {¶7} After she got the beverage and ice, Thayer exited the kitchenette. Thayer

testified that she was talking to Mulica and Campbell, looking “[s]traight ahead,” when

she tripped on “an eight-inch piece of wood” and fell through the partially constructed

window opening. Thayer testified that she struck both of her shins against the base of

the window opening, hit both of her forearms on the “outside of the molding” and that her

body then “flung to the left side of the pane” as she went through the window opening.

Thayer testified that she caught herself and stayed on her feet albeit “[w]ith some kind of

body contortion.”

        {¶8} Mulica witnessed the incident.            Mulica testified that she was in the

kitchenette when she saw Thayer trip over the “hump” at the bottom of the wall where the

window was going to be installed. Mulica testified that Thayer fell through the window

opening but “caught herself,” hitting her shoulder against the window jamb and “skinning

up” her knees and elbows. Campbell did not see Thayer trip and fall, i.e., Campbell

testified that Thayer fell to her right, out of her field of vision, but saw her immediately

after the fall.


        Neither Mulica nor Campbell testified as to how Thayer entered the kitchenette.
        3
       {¶9} Campbell testified that there was nothing precluding anyone from using the

door to enter or exit the kitchenette, that the portion of the wall between the floor and the

window opening was in plain view with nothing obstructing it and that she had not seen

anyone else attempt to exit the kitchenette through the partially constructed window

opening. Mulica testified that the area was well lit.

       {¶10} Thayer, Mulica and Campbell each testified that, at the time Thayer fell,

there was no caution tape, cones or any other “markings” or warnings to indicate that the

area was under construction or to block off access to the partially constructed window.

Nurse manager Julianne Cribbs similarly testified that when she viewed the kitchenette

area shortly after the incident, “there was nothing there.”

       {¶11} Landon disputed the claim that B.L. Building had placed no caution tape

over the partially constructed window opening prior to Thayer’s fall. He testified that he

and one of his employees, Adam Biltz, were the only two persons who worked on the

construction portion of the kitchenette remodel.4 He testified that the hospital did not

want the area closed off to the public during the remodeling and that, therefore, they

“would not leave anything open without caution tape being on it.” He stated that when

he and Biltz left for the day, they would put caution tape over the window opening that

existed before the glass plate was installed. He testified that they did this “so that you

see obviously that you can’t walk through an opening.” “It’s just what you do * * * if

you have something that’s not completed. * * * You don’t want them to use that.”


       Landon testified that subcontractors did the wallpaper removal, painting and flooring work.
       4
Landon testified he was typically on the job from 8:00 a.m. until 4:30 p.m. and that he

had no way of knowing what may have happened or who may have had access to the

room after he left for the day. Landon testified that B.L. Building did not place any other

warnings on, or barriers to, the partially constructed window opening before the project

was completed.

       {¶12} Thayer testified that after she fell, her shins were bleeding, she felt a sharp

pain in her left shoulder and she had abrasions on her forearms. She changed her scrubs,

cleaned the blood off of her legs and finished her shift. After her shift, Thayer went

home and went to bed. She did not immediately seek medical treatment for her injuries.

On July 13, 2014, Thayer went to the emergency room due to “intense pain” and loss of

motion in her left arm and shoulder. In February 2015, Thayer had surgery on her left

shoulder

       {¶13} On May 18, 2016, appellants filed suit against B.L. Building, asserting a

negligence claim for the injuries Thayer sustained in the incident. Appellants alleged

that B.L. Building knew or should have known of the dangers presented by the

construction area and failed to take reasonable precautions, including providing warnings

or other safeguards, to prevent her foreseeable injuries. Appellants claimed over $60,000

in medical expenses and $70,000 in lost wages as a result of the incident. Mark Thayer

also asserted a loss of consortium claim.

       {¶14} B.L. Building filed an answer denying liability and asserting various

affirmative defenses. In March 2017, it filed a motion for summary judgment. B.L.
Building argued that appellants’ claims were barred because the danger posed by the

window opening was open and obvious, that B.L. Building owed no duty to warn or

protect Thayer from open and obvious hazards and there was no evidence that B.L.

Building otherwise breached any duty owed to Thayer.

      {¶15} Appellants opposed the motion. They argued that the open and obvious

doctrine did not apply to independent contractors and that, under the facts and

circumstances at issue, a reasonable jury could find that B.L. Building had breached a

duty of care owed to Thayer and caused her injuries.

      {¶16} On June 5, 2017, the trial court granted B.L. Building’s motion for summary

judgment. The trial court found that there were no genuine issues of material fact, that

reasonable minds could reach only one conclusion and that B.L. Building was entitled to

judgment as a matter of law. The trial court did not explain the reasoning behind its

decision.

      {¶17} Appellants appealed, raising the following assignment of error for review:

      The trial judge erred, as a matter of law, by granting summary judgment
      upon plaintiff[s]-appellants’ claims of common law negligence.

      Law and Analysis

      Standard of Review

      {¶18} We review summary judgment rulings de novo, applying the same standard

as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241

(1996). We accord no deference to the trial court’s decision and conduct an independent

review of the record to determine whether summary judgment is appropriate.
       {¶19} Under Civ.R. 56, summary judgment is appropriate when no genuine issue

as to any material fact exists and, viewing the evidence most strongly in favor of the

nonmoving party, reasonable minds can reach only one conclusion that is adverse to the

nonmoving party, entitling the moving party to judgment as a matter of law.

       {¶20} On a motion for summary judgment, the moving party carries an initial

burden of identifying specific facts in the record that demonstrate his or her entitlement to

summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264

(1996).   If the moving party fails to meet this burden, summary judgment is not

appropriate; if the moving party meets this burden, the nonmoving party has a reciprocal

burden to point to evidence of specific facts in the record demonstrating the existence of a

genuine issue of material fact for trial. Id. at 293. Summary judgment is appropriate if

the nonmoving party fails to meet this burden. Id.

       Negligence

       {¶21} In their sole assignment of error, appellants contend that the trial court erred

in granting summary judgment in favor of B.L. Building on their negligence claim. They

argue that summary judgment was improper because                 (1) Thayer’s injury was

foreseeable, (2) the open and obvious doctrine did not apply, (3) “sensible jurors” could

conclude that B.L. Building breached a duty owed to Thayer by installing a “one foot

high trip hazard” without any warnings or barriers and (4) any issues of comparative

negligence needed to be resolved by the jury.
      {¶22} B.L. Building asserts that the trial court’s entry of summary judgment was

proper because (1) “reasonable minds” could only conclude, given the“open and obvious

nature” of the alleged hazard, that B.L. Building did not breach a duty owed to Thayer,

(2) Thayer presented no evidence of “attendant circumstances” that excused her failure to

observe the potential hazard and (3) Thayer’s own negligence outweighed any alleged

negligence by B.L. Building.

      {¶23}    “Under Ohio law, an independent contractor who creates a dangerous

condition on someone else’s property is subject to the general laws of negligence.”

Miller v. Moyer, 6th Dist. Sandusky      No. S-16-033, 2017-Ohio-7106, ¶ 15; see also

Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 645, 597 N.E.2d 504 (1992). In such

cases, the open and obvious doctrine — which provides that a property owner or occupier

has no duty to warn or protect an invitee against open and obvious dangers on the

property — does not apply and is not a bar to a negligence claim brought by a person

injured by the dangerous condition.        See Simmers at syllabus (“An independent

contractor who creates a dangerous condition on real property is not relieved of liability

under the doctrine which exonerates an owner or occupier of land from the duty to warn

those entering the property concerning open and obvious dangers on the property.”).

      {¶24} To prove negligence, a plaintiff must establish the existence of a duty, a

breach of that duty and an injury proximately resulting from the breach of duty. See, e.g.,

Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984). A

defendant’s duty to a plaintiff depends upon the relationship between the parties and the
foreseeability of injury. Simmers at 645. Injury is foreseeable if a reasonably prudent

person would anticipate that his or her act is likely to cause harm. Id.; Menifee at 77.

Whether a duty exists is question of law for the court to determine.         Mussivand v.

David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989). Whether a defendant “properly

discharged [its] duty of care” is usually a question of fact for the jury. Commerce &

Industry Ins. Co. v. Toledo, 45 Ohio St.3d 96, 98, 543 N.E.2d 1188 (1989).

       {¶25} In this case, B.L. Building owed a duty of ordinary care to Thayer to protect

her from harm related to its construction work on the kitchenette. See, e.g., Royce v.

Yardmaster, 11th Dist. Lake No. 2007-L-080, 2008-Ohio-1030, ¶ 21 (“An independent

contractor owes a general duty of care toward the owner’s invitee, i.e., he must exercise

that degree of care which an ordinarily careful and prudent person would exercise under

the same or similar circumstances.”); see also Jackson v. J-F Ents., 6th Dist. Lucas No.

L-10-1285, 2011-Ohio-1543, ¶ 13; McGuire v. Sears, Roebuck & Co., 118 Ohio App.3d

494, 500, 693 N.E.2d 807 (1st Dist.1996) (“As an independent contractor, * * *

[defendant] * * * was required to warn [store’s] customers of any foreseeable risk of

harm it created on the premises”).        However, Thayer also had a duty to exercise

reasonable care to avoid injury to herself.

       {¶26} While the open and obvious doctrine does not relieve an independent

contractor of a duty of care, the open and obvious nature of a hazard may be relevant for

other purposes in connection with a negligence claim. As the Ohio Supreme Court

explained in Simmers, a hazardous condition that is “sufficiently discernible” may, in and
of itself, “constitute an adequate warning of the danger,” precluding a finding of breach.

Simmers, 64 Ohio St.3d at 646, 597 N.E.2d 504; see also Brock v. Food, Folks & Fun,

Inc., 2d Dist. Montgomery No. 25719, 2014-Ohio-2668, ¶ 20-23 (plaintiff could not

prove that defendant contractor breached its duty of ordinary care to plaintiff who fell on

or near handicap accessible ramp where ramp was “distinct and observable,” plaintiff’s

view of the ramp was not obstructed in anyway and plaintiff’s “admitted failure to

recognize and appreciate the attendant hazards and ordinary danger associated with the

handicap accessible ramp were not foreseeable” by the defendant); Zitron v. Sweep-A-Lot,

10th Dist. Franklin No. 09AP-1110, 2010-Ohio-2733, ¶ 2-3, 16 (trial court did not err in

granting summary judgment on negligence claim against independent contractor where

plaintiff tripped on a hose contractor’s employee was using to clean sidewalk; plaintiff

could not prove that contractor breached its duty of ordinary care because hose “was in

plain sight, was easily observable to a reasonably prudent person who could be expected

to protect himself or herself, and did not create a foreseeable risk of unreasonable harm”).

       {¶27} Likewise, a plaintiff’s failure to protect himself or herself from an obvious

hazard may constitute contributory negligence. A plaintiff’s contributory negligence,

however, does not automatically preclude the plaintiff from recovering damages

proximately caused by a defendant’s negligence. Under R.C. 2315.33,

       “[t]he contributory fault of a person does not bar the person as plaintiff
       from recovering damages that have directly and proximately resulted from
       the tortious conduct of one or more other persons, if the contributory fault
       of the plaintiff was not greater than the combined tortious conduct of all
       other persons from whom the plaintiff seeks recovery in [the] action and of
       all other persons from whom the plaintiff does not seek recovery in [the]
       action.”
       {¶28} Following a thorough review of the record, viewing the evidence in the light

most favorable to Thayer, we find that genuine issues of material fact exist that cannot be

properly resolved on summary judgment. On the record before us, we believe reasonable

minds could disagree as to whether B.L. Building breached its duty of ordinary care to

Thayer and whether any such breach was the proximate cause of Thayer’s injuries. We

also believe issues of fact exist as to whether Thayer was contributorily negligent in

failing to observe and avoid the hazard presented by the partially constructed window

and, if so, the extent to which Thayer’s own negligence proximately caused her injuries.

       {¶29} This is not a case in which the trip hazard was so open and obvious that

reasonable minds could only conclude that no warnings or other safeguards were

necessary to protect persons who were using the kitchenette from the hazard. Compare

Brock, 2014-Ohio-2668, at ¶ 20-23; Zitron, 2010-Ohio-2733, at ¶ 16. Indeed, Landon

testified that the reason B.L. Building placed caution tape over the window opening5 was

“so that you see obviously that you can’t walk through [the] opening,” apparently

anticipating that someone entering or exiting the kitchenette might not otherwise see or

appreciate the danger posed by the partially constructed window opening.




         As noted above, the parties dispute whether B.L. Building, in fact, placed caution tape over
       5


the partially constructed window opening prior to Thayer’s fall. Landon testified that caution tape
was placed over the window opening; Thayer and her coworkers testified unequivocally that they saw
no caution tape over the window opening prior to the incident.
       {¶30} Likewise, although there is evidence from which it could be inferred that

Thayer’s injuries were due to distraction or lack of attentiveness on her part, this is not a

case in which the evidence of contributory negligence is “so compelling” that a

reasonable jury could only find that Thayer’s contributory fault was “greater than the

combined tortious conduct of all other persons from whom [she] seeks recovery in this

action and of all other persons from whom [she] does not seek recovery in this action”

such that she would be barred from recovery under Ohio’s comparative negligence

statute. R.C. 2315.33; Simmers, 64 Ohio St.3d at 646, 597 N.E.2d 504 (“Issues of

comparative negligence are for the jury to resolve unless the evidence is so compelling

that reasonable minds can reach but one conclusion.”); see also Young v. New Southgate

Lanes, 8th Dist. Cuyahoga No. 88552, 2007-Ohio-2923, ¶ 39 (summary judgment in

favor of defendant bowling alley was not proper where evidence demonstrated a genuine

issue of material fact as to whether plaintiff was more than 50 percent at fault for her

injuries when she lost her balance and fell while bowling).        Rather, this is a case in

which “[t]he question of whether appropriate steps were taken to prevent reasonably

foreseeable injuries must be resolved by the trier of fact.” Rodriguez v. Rockefeller Bldg.

Assocs., 8th Dist. Cuyahoga No. 86059, 2006-Ohio-2208, ¶ 16.

       {¶31} Accordingly, the trial court erred in entering summary judgment in favor of

B.L. Building. Appellants’ assignment of error is sustained

       {¶32} Judgment reversed; case remanded.

       It is ordered that appellants recover from appellee the costs herein taxed.
       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to Cuyahoga County Court of Common

Pleas to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



____________________________________________________
EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE

MELODY J. STEWART, J., and
ANITA LASTER MAYS, J., CONCUR
