[Cite as Casteel v. Univ. of Akron, 2013-Ohio-5934.]




                                                             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



DENISE CASTEEL, et al.

        Plaintiffs

        v.

THE UNIVERSITY OF AKRON, et al.

        Defendants

Case No. 2011-12188

Judge Patrick M. McGrath

DECISION

        {¶ 1} Plaintiffs brought this action alleging negligence.1 The issues of liability and
damages were bifurcated and the case proceeded to trial on the issue of liability.
        {¶ 2} This case arises from events that took place on the evening of September
19, 2007, when plaintiff attended a series of intramural flag football games located on
the AstroTurf football practice field at the University of Akron (Akron) known as Jackson
Field. Plaintiff attended the games with Chris and Daniel Goodrow in order to watch
their children, Christopher Casteel and Tess Goodrow, who were students at Akron,
play in the intramural games. Plaintiff had been at Jackson Field the prior week to
watch her son play in an intramural game. The AstroTurf field was surrounded by a
fence and plaintiff sat in a grassy area along the eastern side of the field behind the
fence. Plaintiff sat in a folding chair, Chris Goodrow sat in a chair to her right, and there
were at least 100 people watching the games in the same area. Daniel Goodrow was



             
                 Throughout this decision, “plaintiff” shall refer to Denise Casteel.
Case No. 2011-12188                       -2-                               DECISION

standing in the grassy area taking pictures during the games. Plaintiff brought her dog,
a 150 pound Great Dane, to the game, and the dog sat to her left.
      {¶ 3} Tess Goodrow played in a 7:00 p.m. game between two sororities and the
game took place without incident. Plaintiff and the Goodrows remained at the field until
Christopher’s game began at 10:00 p.m. During the middle of Christopher’s game, both
plaintiff and Chris Goodrow testified that they heard a “hissing” sound, people began
yelling in fear, and people ran away from the grassy area. Plaintiff did not know what
was occurring so she and Chris Goodrow began to run away from the field. Plaintiff
admitted that when she got up, she tripped over her dog, fell to the ground, and injured
her ankle. While plaintiff was on the ground, she felt a watery mist hitting her and
Daniel Goodrow informed her that the sprinkler system had turned on in the grassy
area. Plaintiff and Chris Goodrow both testified that when they first heard the hissing
noise they did not know what it was and that they were frightened. Furthermore, plaintiff
testified that she was concerned by the hissing noise inasmuch as Akron had received
three bomb threats in the weeks prior to September 19, 2007, and that she initially
thought the noise was a bomb.
      {¶ 4} In 2007, Mark Allen was employed by Akron as the manager for
recreational sports programming, a position he held for 22 years. In his employment,
Allen was responsible for scheduling games on Akron’s athletic fields, including
intramural games. Allen testified that he submitted weekly schedules of the athletic
events to the university and that the sprinkler system should not turn on during a
scheduled game.
      {¶ 5} Allen was present at the intramural games on September 19, 2007, and he
was positioned near the southeast gate of the practice field. Allen saw the sprinkler
system turn on in the grassy area where the spectators were sitting. Allen testified that
the football games were interrupted for a brief period of time when the sprinklers began
spraying water but that the games resumed shortly thereafter. Allen testified that when
Case No. 2011-12188                         -3-                                DECISION

the water began spraying, he heard playful laughing and screaming coming from the
grassy area.
       {¶ 6} Jim Fleming, Akron’s grounds superintendent for the athletic fields, arrived
at work on September 20, 2007 to find the sprinklers in the grassy area turned on.
Fleming testified that there was standing water on the ground, which led him to believe
that the sprinklers had been on all night. Fleming discovered that a soda can was
wedged in between two components of the sprinkler system that are located in an
unlocked, covered bucket in the ground: the flow valve and the solenoid.          Fleming
believed that this caused the sprinklers to turn on.
       {¶ 7} While the testimony of plaintiff and Chris Goodrow conflicts with the
testimony of Mark Allen regarding the level of fearfulness in the crowd when the
sprinklers began spraying water, the court determines that the testimony of Allen is
more credible. The court finds that the crowd was generally playful and not fearful when
the sprinklers turned on. Additionally, the testimony of those present at the field on
September 19, 2007, supports the finding that the sprinklers turned off shortly after they
turned on; however, the sprinklers were still running the following morning, as Jim
Fleming credibly testified.   The court finds that the sprinklers turned on during the
intramural games, that the games were able to resume shortly thereafter, and that the
following morning Fleming found the sprinklers in the grassy area activated.
       {¶ 8} Plaintiffs assert that defendants were negligent in allowing the sprinkler
system to be activated during a sporting event, which resulted in plaintiff falling and
injuring her ankle. Defendants assert that they did not breach any duty it owed to
plaintiff and that plaintiff has failed to established proximate cause.
       {¶ 9} In order for plaintiff to prevail upon her claim of negligence, she must prove
by a preponderance of the evidence that defendants owed her a duty, that defendants’
acts or omissions resulted in a breach of that duty, and that the breach proximately
Case No. 2011-12188                        -4-                                DECISION

caused her injuries. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-
2573, ¶ 8, citing Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77 (1984).
        {¶ 10} 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).
Plaintiff was on Akron’s premises for purposes that would classify her as an invitee,
which is 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., 49 Ohio App.3d 46, 47 (10th Dist.1988). The duty owed to an invitee is one
of ordinary and reasonable care to protect her from an unreasonable risk of physical
harm of which defendant knew or had reason to know. Perry v. Eastgreen Realty Co.,
53 Ohio St.2d 51, 52 (1978); see also Armstrong, supra, at ¶ 5. “[T]o establish that the
owner or occupier failed to exercise ordinary care, the invitee must establish that: (1)
the owner of the premises or [its] agent was responsible for the hazard of which the
invitee has complained; (2) at least one of such persons had actual knowledge of the
hazard and neglected to give adequate notice of its existence or to remove it promptly;
or (3) the hazard existed for a sufficient length of time to justify the inference that the
failure to warn against it or remove it was attributable to a lack of ordinary care.” Price
v. United Dairy Farmers, Inc., 10th Dist. No. 04AP-83, 2004-Ohio-3392, ¶ 6.
        {¶ 11} Plaintiff argues that the sprinklers were activated during the flag football
game due to a malfunctioning sprinkler timer, which was a breach of the standard of
care.   However, upon review of the evidence, the court finds that plaintiff failed to
present sufficient evidence to support such a theory.
        {¶ 12} Jim Fleming has been employed by Akron as the grounds superintendent
for the athletic fields for 30 years. Fleming’s duties include maintenance of the athletic
fields, including the sprinkler system that was installed in 2003. Fleming explained that
he is very familiar with the sprinkler system. The AstroTurf field where the flag football
Case No. 2011-12188                        -5-                               DECISION

games were played is not watered, but the grassy area surrounding the fields, where
the spectators were sitting on September 19, 2007, is watered by the sprinkler system.
Fleming testified that he gets a weekly schedule from Akron’s athletic department of all
scheduled sporting events and that the sprinklers are not supposed to be activated
during an event. Fleming explained that there are three ways that the sprinkler can be
activated: 1) setting the timer on the locked control box, located on the AstroTurf
practice field, for a specific day and length of time; 2) a member of his “crew” manually
turning on the sprinkler; and 3) an act of vandalism.
       {¶ 13} Fleming described how the sprinkler system works. Fleming explained
that the sprinkler flow valve control and solenoid are located inside of a bucket that is
placed in the ground. The bucket is covered with a lid, which is level with the ground.
Each sprinkler valve controls a specific area of sprinklers and Fleming explained that six
sprinklers connect to the same valve station.       According to Fleming, the sprinkler
system is pressurized and the solenoid prevents the water from constantly flowing.
Fleming explained that if the solenoid is broken, the water begins to flow out of the
sprinkler.
       {¶ 14} Fleming’s office at Akron is located approximately 40 yards from the
grassy area where the sprinklers turned on.         When Fleming arrived at work on
September 20, 2007, the morning after plaintiff was injured, he noticed that six
sprinklers were activated on the grassy area next to the AstroTurf practice field. He
determined that the sprinklers had been running all night because there was standing
water on the grass. According to Fleming, he first checked the locked timer box to see
if the timer was set to be running at that time; the timer was not turned on. Next,
Fleming saw that the lid to the valve bucket controlling the sprinklers in the grassy area
was lying on the ground next to the bucket. Fleming looked inside the bucket and found
a soda can wedged in between the flow valve and the solenoid. Fleming stated that he
turned off the flow valve, and the sprinklers turned off. Shortly thereafter, he removed
Case No. 2011-12188                        -6-                                DECISION

the broken valve and replaced it with a new one.         Fleming testified that no Akron
employee, including Allen, called him on the night of September 19, 2007, when the
sprinklers turned on.
      {¶ 15} Based on his knowledge, skill, and experience, Fleming opined that the
soda can jammed in between the flow valve and the solenoid caused the solenoid to
break. Fleming stated that a broken solenoid causes the sprinkler to turn on.
      {¶ 16} Plaintiff’s argument that the sprinklers turned on due to a malfunction with
the timer is unpersuasive. The court finds that an act of vandalism caused the sprinkler
system to activate during the intramural games.        Fleming testified credibly that he
checked the sprinkler timer the following morning, that it was turned off, and that there
was no power from the timer to the solenoid. Fleming also explained that he only
waters the grass “as needed”; that he does not regularly use the automatic timers on
the sprinkler system; and that his staff does not operate the timers.         Additionally,
Fleming testified that he and his crew members did not manually engage the sprinklers
on September 19, 2007. The third and final way the sprinkler system could turn on, by
an act of vandalism, is supported by the weight of the evidence. Fleming testified
credibly that on September 20, 2007, he found the lid removed from the bucket
containing the valve and solenoid and that a soda can was jammed in between the
valve and solenoid, which caused the solenoid to break.         The court finds that the
sprinkler was activated due to an act of vandalism, which occurred at the same time that
the sprinklers turned on during the intramural football games on September 19, 2007.
The weight of the evidence supports a finding that the sprinklers turned on during the
intramural games due to an act of vandalism and that defendants did not create the
hazard of the sprinklers turning on. Additionally, plaintiff has failed to present evidence
that defendants had either actual or constructive notice of the act of vandalism prior to
the sprinkler turning on such that it was under a duty to protect plaintiff from an
unreasonable risk of harm.
Case No. 2011-12188                        -7-                                 DECISION

       {¶ 17} Moreover, even if the court were to find that defendants breached a duty
owed to plaintiff, plaintiff has failed to prove proximate cause. Plaintiff testified that
when she first heard the “hissing” sound, she did not know the noise was the sound of a
sprinkler turning on. Plaintiff testified that she stood up and started to run because
people were screaming and she did not know what was happening. Plaintiff admitted
that she fell over her Great Dane when she stood up, and following the incident, plaintiff
told several persons that she had tripped over her dog. (Defendants’ Exhibits A, A1, B,
C.) The court finds that even if defendants had breached their duty of care to plaintiff by
allowing the sprinklers to turn on during a sporting event, it is unforeseeable that a
spectator at the event would trip over a 150 pound dog and suffer injury. Additionally,
the court finds that plaintiff’s fearful reaction to the “hissing” noise was not foreseeable
by Akron. The court finds that plaintiff’s injury, caused by falling over her 150 pound
Great Dane that was sitting next to her, was unforeseeable and the sole proximate
cause of her injury. See Mussivand v. David, 45 Ohio St.3d 314, 321 (1989); Strother v.
Hutchinson, 67 Ohio St.2d 282, 287 (1981); Ross v. Nutt, 177 Ohio St. 113, 114 (1964).
       {¶ 18} Additionally, plaintiff argues that defendants are liable under a theory of
res ipsa loquitur; however, the court does not agree.        Plaintiff contends that under
Akron’s policy, the sprinkler system is not supposed to turn on during sport events, and
that the sprinkler system could only have turned on as a result of defendants’
negligence. The doctrine of res ipsa loquitur is a rule of evidence which allows the trier
of fact to draw an inference of negligence from the facts presented.            Morgan v.
Children’s Hosp., 18 Ohio St.3d 185, 187 (1985).          “A plaintiff must establish two
elements for the doctrine of res ipsa loquitur to apply: ‘(1) [t]hat 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
Case No. 2011-12188                         -8-                                  DECISION

observed.’” Estate of Hall v. Akron Gen. Med. Ctr., 125 Ohio St.3d 300, 2010-Ohio-
1041, ¶ 27, quoting Hake v. George Wiedemann Brewing Co., 23 Ohio St.2d 65, 66-67
(1970).
       {¶ 19} Both Fleming and Allen testified that the sprinkler system is not supposed
to turn on during athletic events at Akron. However, as stated above, the court finds
that some unknown third party removed the lid to the sprinkler valve, placed a soda can
in the valve, and broke the solenoid. Fleming testified that a vandal could unsecure the
lid on the valve cover and tamper with the valve.          The act of vandalism occurred
simultaneously with the sprinklers turning on.       Inasmuch as the court has already
concluded that the sprinkler valve was vandalized by some unknown third party, the
sprinkler was not under the “exclusive management and control” of defendants.
Therefore, plaintiff’s argument that res ipsa loquitur applies to this case must fail.
       {¶ 20} Plaintiffs have also asserted a claim for loss of consortium. “[A] claim for
loss of consortium is derivative in that the claim is dependent upon the defendant’s
having committed a legally cognizable tort upon the spouse who suffers bodily injury.”
Bowen v. Kil-Kare, Inc., 63 Ohio St.3d 84, 93 (1992). Since plaintiff has failed to prove
her claims of negligence, the loss of consortium claim must also fail.
       {¶ 21} For the foregoing reasons, the court finds that plaintiffs have failed to
prove their claims by a preponderance of the evidence. Accordingly, judgment shall be
rendered in favor of defendants.



                                           _____________________________________
                                           PATRICK M. MCGRATH
                                           Judge
Case No. 2011-12188                       -9-                                    DECISION




                                              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



DENISE CASTEEL, et al.

      Plaintiffs

      v.

THE UNIVERSITY OF AKRON, et al.

      Defendants

Case No. 2011-12188

Judge Patrick M. McGrath

JUDGMENT ENTRY

      {¶ 22} This case was tried to the court on the issue of liability. The court has
considered the evidence and, for the reasons set forth in the decision filed concurrently
herewith, judgment is rendered in favor of defendants.        Court costs are assessed
against plaintiffs. The clerk shall serve upon all parties notice of this judgment and its
date of entry upon the journal.



                                         _____________________________________
                                         PATRICK M. MCGRATH
                                         Judge

cc:
Case No. 2011-12188                    - 10 -                          DECISION



Brian M. Kneafsey, Jr.                    Richard L. Demsey
Paula Luna Paoletti                       U.S. Bank Centre
Assistant Attorneys General               1350 Euclid Avenue, Suite 1550
150 East Gay Street, 18th Floor           Cleveland, Ohio 44115
Columbus, Ohio 43215-3130

007
Filed July 25, 2013
Sent to S.C. Reporter April 30, 2014
