[Cite as Petrasek v. TC3 Operations, Inc., 2011-Ohio-1962.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 95519



                                MARGARET PETRASEK

                                                              PLAINTIFF-APPELLANT

                                                     vs.

                                 TC3 OPERATIONS, INC.
                                                              DEFENDANT-APPELLEE




                                            JUDGMENT:
                                             AFFIRMED


                                       Civil Appeal from the
                                 Cuyahoga County Common Pleas Court
                                       Case No. CV-653003

        BEFORE:          Boyle, P.J., Cooney, J., and Rocco, J.

        RELEASED AND JOURNALIZED:                          April 21, 2011
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ATTORNEY FOR APPELLANT

Richard L. Demsey
Richard L. Demsey Co., L.P.A.
U.S. Bank Centre
1350 Euclid Avenue, Suite 1550
Cleveland, Ohio 44115


ATTORNEYS FOR APPELLEE

John M. Heffernan
Samuel G. Casolari, Jr.
Beau D. Hollowell
Marshall, Dennehey, Warner, Coleman & Goggin
39 E. Market Street
Suite 301
Akron, Ohio 44308




MARY J. BOYLE, P.J.:

       {¶ 1} Plaintiff-appellant, Margaret Petrasek, 1 appeals from the trial

court’s order granting summary judgment to defendant-appellee, TC3

Operations, Inc. (“TC3”). Finding no merit to the appeal, we affirm.


         Petrasek passed away during the pendency of the case. The executor of her estate,
       1


Salvatore Grano, was substituted as the plaintiff. But for purposes of this appeal, we will simply
refer to Petrasek as the plaintiff-appellant.
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      {¶ 2} Petrasek filed a negligence action against TC3 after she was

injured on one of its buses in November 2007. TC3 denied the allegations in

its answer and moved for summary judgment after discovery was completed.



      {¶ 3} The trial court granted TC3’s motion, finding that TC3 was a

private carrier that owed a duty of ordinary care to Petrasek. But then the

trial court determined that TC3 had no duty to actively assist Petrasek up

the steps, because steps pose an open and obvious inherent danger. It is from

this judgment that Petrasek appeals, raising four assignments of error for

our review:

      {¶ 4} “[1.] The trial court abused its discretion in granting appellee

TC3 Operations’ motion for summary judgment when material facts clearly

are in dispute and reasonable minds could come to a conclusion in favor of

appellant Margaret Petrasek.

      {¶ 5} “[2.] The trial court abused its discretion in granting appellee

TC3 Operations’ motion for summary judgment by finding that appellee did

not breach its duty of care owed to appellant.

      {¶ 6} “[3.] The trial court abused its discretion in finding that an open

and obvious condition existed.
                                           4

       {¶ 7} “[4.] The trial court abused its discretion in failing to strike

appellee’s defenses of contributory and comparative negligence.”

       {¶ 8} Petrasek’s first three assignments of error raise the same issue,

i.e., whether the trial court erred when it granted summary judgment to

TC3. Thus, we will address them together.

                                    Summary Judgment

       {¶ 9} This court reviews a decision granting summary judgment on a de novo basis.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241.

Summary judgment is properly granted when: (1) there is no genuine issue as to any material

fact; (2) the moving party is entitled to judgment as a matter of law; and, (3) 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. Civ.R. 56(C); State ex rel. Duganitz

v. Ohio Adult Parole Auth., 77 Ohio St.3d 190, 191, 1996-Ohio-326, 672

N.E.2d 654.

                                             Facts

       {¶ 10} Under Civ.R. 56(C), this court must independently determine if

any genuine issues of material fact remain such that the trial court erred

when it granted summary judgment to TC3.                   The following facts were

established in the depositions of Petrasek, Nancy Fiordalisi, the executive
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director of TC3, and Winifred Merles, the person driving the TC3 bus the day

Petrasek was injured.

      {¶ 11} TC3 (Transportation Consortium Coordinating Committee) was

a nonprofit corporation that was created to provide transportation services

for independent seniors and disabled persons living in University Heights,

Mayfield Heights, and Shaker Heights. In order to use TC3’s services, a

person had to complete an application with the municipality where he or she

lived, be approved by that municipality as a qualifying person, and pay $5

per year to enroll in the program. The person then had to pay only $2 for

each ride.

      {¶ 12} TC3’s buses were specifically designed to transport seniors and

disabled persons. They were equipped with three steps and a mechanical

lift. The bus on which Petrasek was injured was only six months old. It

had a wide entrance with double doors and railings on each side of the steps.

 The three steps were brightly marked with yellow paint on the edge. At

the top of the third step, almost at eye-level when entering the bus, was the

warning, “WATCH YOUR STEP.” The warning was in red lettering that

was enclosed in a white box.

      {¶ 13} Petrasek had been using TC3 for approximately ten years. At

the time of the accident, Petrasek was 91 years old.   About a week before the
                                                6

accident, she arranged for a TC3 bus to pick her up at her apartment in

Mayfield Heights at 9:30 a.m. to take her to her regular hair salon

appointment.

        {¶ 14} Petrasek testified in her deposition that on the day of her accident, it had

snowed that morning.       But by the time the bus arrived, it had stopped snowing and there was

no snow on the ground.        She waited in the lobby of her apartment building for the bus to

come.    She was wearing a skirt that day and rubber-soled shoes.

        {¶ 15} When the TC3 bus arrived, Petrasek walked to it with the help of her walker.

Merles, whom had never driven Petrasek before, was driving the bus that day.        Merles was

standing outside of the bus when Petrasek reached it.     Petrasek handed her walker to Merles

and proceeded to step onto the first step of the bus.   Petrasek did not inform Merles that she

needed any assistance.      Petrasek placed her right foot onto the first step and then followed

with her left foot.     At that point, once she had placed both feet on the first step, Petrasek

testified that she knew she could not go any further by herself.     So she decided to go back

down the steps.       She did not tell Merles that she was coming back down.      It was on the

way down, with both hands on the railings, that she scraped her left shin on the step of the

van.

        {¶ 16} Petrasek stated that Merles did not assist her up the steps on her first try.

Merles testified that she did gently place her hand on Petrasek’s back as she was attempting
                                               7

to ascend the stairs the first time.     Merles was surprised to hear that Petrasek testified

otherwise, and said that Petrasek may have not felt her hand.

        {¶ 17} Once Petrasek was back on the ground, she attempted to climb the stairs to the

bus a second time, again not asking for any assistance.        This time, Petrasek testified that

Merles did place her hand on her back.      With Merles’s help, Petrasek was able to climb the

three steps and get on the bus.    Once she sat down, she saw that her bone and muscle were

exposed, and she was bleeding very badly.        She remained on the bus until the ambulance

came.

        {¶ 18} Petrasek testified that in the past, she usually had the same driver who had

always placed a hand on her back to assist her up the steps, but he passed away several

months before her accident.     She said, “[t]hey knew at that time I needed help in going up.”

 She also expected that Merles would do the same as the other drivers had.         She explained

that she did not tell Merles that she needed help because she thought TC3 drivers were

supposed to help.    Petrasek further testified that she did not ask for help on the way down

the steps before she got hurt because “on the way down [she] wouldn’t need help.”

        {¶ 19} Merles testified that she had all the required training that is necessary to assist

seniors and disabled persons.     She was taught that a driver should “be there for [passengers]

in their vicinity making sure that they are sure footed getting on the bus.”     She recognized

that Petrasek was “in the ninety-year-old” range and was frail.     She therefore knew from her
                                              8

training and experience that Petrasek may need assistance getting on the bus.            Merles

testified that she was trained to place a hand gently on a person’s back if they needed

assistance.

       {¶ 20} But Merles stated that as Petrasek began to get on the bus the first time, she

stood behind her as she was trained to do and placed a hand gently behind her.            When

Petrasek came back down the steps, Merles did not realize she was hurt at that time.     Merles

said that she told Petrasek that she could “let the lift down,” but Petrasek just turned away

from her and attempted to go up the steps for the second time.      Merles said that she placed

her hand behind Petrasek again, and this time, Petrasek made it on the bus.       After Petrasek

sat down on the bus, Merles realized that Petrasek was hurt.

                                Common Carrier versus Private Carrier

       {¶ 21} The trial court found that TC3 is a private carrier and, thus, owed Petrasek a

duty of ordinary care.   But Petrasek claims that the evidence suggests that TC3 is a common

carrier and should therefore be held to the more stringent duty of care with respect to its

passengers.   We disagree.

       {¶ 22} In Conver v. EKH Co., 10th Dist. No. 02AP-1307, 2003-Ohio-5033, ¶32-34,

the court aptly explained the difference between a common and private carrier as follows:

       {¶ 23} “A ‘common’ carrier is one who undertakes to transport persons or property

from place to place, for hire, and holds itself “‘out to the public as ready and willing to serve
                                                    9

 the public indifferently.’”       Harper v. Agency Rent-A-Car, Inc. (C.A.5, 1990), 905 F.2d 71,

 quoting Burnett v. Riter (Tex.App.1925), 276 S.W. 347, 349; 13 Ohio Jurisprudence 3d

 (1995) 567, Carriers, Section 1.         The common carrier must hold ‘itself ready to serve the

 public impartially to the limit of its capacity.’        Id.   For example, taxicabs are common

 carriers under Ohio law. Korner v. Cosgrove (1923), 108 Ohio St. 484, 141 N.E. 267.                In

 contrast, a private carrier is one that undertakes by special agreement or contract to transport

 a definite number of persons for a special undertaking.         Id.; Columbus-Cincinnati Trucking

 Co. v. Pub. Util. Comm. (1943), 141 Ohio St. 228, 47 N.E.2d 623; Spath v. Dillon

 Enterprises (D.Mon.1999), 97 F.Supp.2d 1215, 1218 (defendant was a private carrier where it

 contracted to transport individuals on white water rafting trips; this was by nature a special

 agreement).           The controlling factor in determining the status of a carrier ‘is its public
               ]2[




 profession, or holding out, by words or course of conduct, as to the service offered or

 performed.          The issue of whether a particular person or instrumentality is a common carrier




          R.C. 4921.02, dealing with the general powers of the Public Utilities Commission to
       2


regulate certain common and private carriers, includes in its definition of common carrier ‘every
corporation, company *** engag[ed] in the business of transporting persons or property, or the
business of providing or furnishing such transportation service, for hire, whether directly or by lease
or other arrangement, for the public in general.’ (Emphasis added.) In contrast, R.C. 4923.02
which defines a private motor carrier does not use the language ‘for the public in general.
                                                 10

is generally a question of law for the court.’    13 Ohio Jurisprudence 3d (1995) 567, Carriers,

Section 1; Harper, supra.

       {¶ 24} “A common carrier’s duty is to ‘exercise the highest degree of care for the

safety of its passengers consistent with the practical operation of its business.’    Bodley v.

U.S. Air, Inc. (Dec. 9, 1997), 10th Dist. No. 97APE03-430.          Included in this duty is to

provide a reasonably safe place for its passengers to alight and a duty to warn passengers

against dangerous agents or conditions known to or reasonably ascertainable by the carrier.

Feldman v. Howard (1967), 10 Ohio St.2d 189, 192, 226 N.E.2d 564; James v. Wright

(1991), 76 Ohio App.3d 493, 495, 602 N.E.2d 392.           However, the foregoing duty applies

‘only to perils which the passengers [themselves] should not be expected to discover or

protect themselves against.’   Id.

       {¶ 25} “In contrast, a private carrier’s duty is simply that of reasonable ordinary care.

 Harper; Spath, supra (recognizing lessened duty of private carriers); Long v. Illinois Power

Co. (1989), 187 Ill.App.3d 614, 629-630, 135 Ill.Dec. 142, 543 N.E.2d 525 (discussing

distinction between private carriers and common carriers and heightened standard of care for

common carriers).     What is reasonable may vary depending on the situation. Nichols v.

TransCor America, Inc. (June 25, 2002), Tenn.Ct.App. No. 98C-2177.”

       {¶ 26} Here, TC3 clearly did not hold itself out to the public.       It was created and

existed to serve the transportation needs of qualifying seniors and disabled persons in several
                                              11

municipalities.   In order to qualify for the discounted transportation program, one had to fill

out an application form with his or her municipality and be approved by the municipality.

To use the service, the person then had to schedule a time to be picked up by one of TC3’s

buses.    Accordingly, we find that TC3 was a private carrier owing a duty of ordinary care to

Petrasek as its passenger.

                                         Duty of Ordinary Care

         {¶ 27} Petrasek argues that the trial court erred when it applied the open-and- obvious

doctrine because that only applies to land and premises liability.    We disagree.     But while

we agree with the trial court that steps have an inherent danger that one must take precautions

against, here the question really is whether ordinary care entails actively assisting passengers

onto the bus.     And we find that it does not.      Despite the fact that TC3 was created to

provide transportation to seniors and disabled persons, we find that does not mean that the

driver had to assist Petrasek onto the bus when she did not request help.          The      Ohio

Supreme Court has held that — even with the higher degree of care owed by a common

carrier — that it does not entail actively assisting passengers onto a bus.              Gray v.

Youngstown Mun. Ry. Co. (1954), 160 Ohio St. 511, 517-518, 117 N.E.2d 27.                This is

especially so when the passenger does not request help.    Id.

         {¶ 28} In Gray, the passenger was elderly and carrying a cane.     It was a sunny, clear

day.     There were no hazards on the steps of the bus.       The plaintiff, without requesting
                                             12

assistance, made it to the first step of a city bus but then lost her balance and fell as she

reached for a railing inside the bus.

       {¶ 29} Here, Petrasek was elderly and walked with the assistance of a walker.

Although it had snowed that morning, the snow had melted       by the time the bus arrived.    It

is undisputed that the steps were free of any snow or any other hazard.     And Petrasek made

it to the first step before deciding she could not go any further and injured herself stepping

backwards off of the bus.

       {¶ 30} Petrasek attempts to distinguish Gray, claiming that the plaintiff in Gray was

entering a city bus, but that here, the bus was “specifically designed and equipped to transport

elderly or disabled individuals,” and that “its primary purpose of operation was to transport

seniors and people with disabilities who were living independently in the community.”

These facts, however, do not raise the level of care that TC3 owed to its passengers.   In fact,

they actually lower the degree to that of ordinary care.   And more significantly, in Gray —

the city bus driver was held to the more stringent duty of care, rather than an ordinary duty of

care owed here.

       {¶ 31} If the facts in this case were such that a passenger was injured because the

driver did not properly assist the passenger onto the bus — such as not adequately securing

the passenger’s wheelchair to the lift — thereby causing the passenger’s injury, then we

would agree that under those facts, the driver breached the duty of ordinary care.            See
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Hostettler v. Community Care Ambulance, 11th Dist. No. 2004-A-0001, 2004-Ohio-6339

(patient — passenger in an ambulance, which was considered to be a private carrier because

it had been specifically hired for a nonemergency job, was injured when paramedic did not

properly secure gurney to the ambulance).       But we have no such facts here.

          {¶ 32} We further find no merit to Petrasek’s argument that a question of material fact

exists.    She claims that because Merles testified that she did place a hand on Petrasek’s back

the first time, but Petrasek testified that Merles did not, that a question of fact exists as to

which happened.       Although we agree that this is a question of fact, we find — as the trial

court did — that it is not a material fact since we conclude that Merles did not have an

affirmative duty to assist Petrasek up the steps.

          {¶ 33} Although it is unfortunate that Petrasek was injured so badly, we conclude that

it was not caused by any fault of TC3.      Accordingly, we find no error on the part of the trial

court since TC3 is entitled to judgment as a matter of law.

          {¶ 34} Petrasek’s first three assignments of error are overruled.           Her fourth

assignment of error has been rendered moot by our disposition of the first three assigned

errors.

          Judgment affirmed.

          It is ordered that appellee recover from appellant costs herein taxed.

          The court finds there were reasonable grounds for this appeal.
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       It is ordered that a special mandate be sent to said court 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.




MARY J. BOYLE, PRESIDING JUDGE

COLLEEN CONWAY COONEY, J., CONCURS;
KENNETH A. ROCCO, J., CONCURS IN JUDGMENT ONLY
