# Yoak v. Univ. Hosps. Health Sys., Inc.

> Ohio Court of Appeals · October 6, 2022 · 2022 Ohio 3550

URL: https://www.frixlaw.com/law-library/cases/8212246

## Case

- **Court:** Ohio Court of Appeals
- **Decided:** October 6, 2022
- **Citations:** 2022 Ohio 3550
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Forbes
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

[Cite as Yoak v. Univ. Hosps. Health Sys., Inc., 2022-Ohio-3550.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

GERALD WAYNE YOAK, :

Plaintiff-Appellant, :
No. 111224
v. :

UNIVERSITY HOSPITALS HEALTH :
SYSTEMS, INC., ET AL.,

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: October 6, 2022

Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-20-935769

Appearances:

DWORKEN & BERNSTEIN CO., L.P.A., Patrick T.
Murphy, and Christian D. Foisy, for appellant.

WESTON HURD LLP, and Daniel A. Richards, for
appellees.

LISA B. FORBES, J.:

Gerald Wayne Yoak (“Yoak”) appeals from the trial court’s order

granting summary judgment to University Hospitals Health System, Inc., and

University Hospitals Geauga Medical Center (collectively “UH”) in this trip-and-fall
case. After reviewing the facts of the case and pertinent law, we affirm the lower

court’s judgment in part, reverse in part, and remand for further proceedings

consistent with this opinion.

I. Facts and Procedural History

UH operates a physical therapy and rehabilitation center (“UH rehab

center”) located at the Geauga YMCA (the “YMCA”) in Chardon. The building that

houses the UH rehab center and the YMCA is owned by the YMCA. The YMCA leases

space to UH for the UH rehab center. The UH rehab center is “separated by a set of

glass doors from the [YMCA] exercise facilities * * *.”

On August 13, 2018, Yoak was exercising at the YMCA when he

“tripped over a board that was * * * between the glass doors separating the [UH

rehab center] from the YMCA exercise facilities.” This board was placed between

the two doors by a UH employee “to keep them from shutting and locking.” After

tripping over the board, Yoak allegedly fell and suffered injuries to his left knee and

ankle.

On August 10, 2020, Yoak filed a complaint against UH and the

YMCA. Yoak did not delineate precisely what claims he asserted in his complaint,

although they all relate to his tripping over the board and falling at the YMCA. The

complaint alleges, in part, the following:

• Yoak was a “business invitee” at the YMCA;

• The “board placed between the glass doors constituted a
dangerous and hidden condition at the premises”;
• “Defendants negligently maintained the facility, failed to warn
[Yoak] of the dangerous condition and permitted a nuisance to
remain on the premises”;

• “Defendants violated their duty to ‘[k]eep all common areas of
the premises in a safe and sanitary condition,’ in violation of
[R.C.] 5321.04(A)(3), and was negligent per se”;

• Yoak “tripped over a board that was placed by [a UH] employee
* * * between the glass doors separating the [UH rehab center]
from the YMCA exercise facilities.”

On August 27, 2021, Yoak dismissed his claims against the YMCA,

leaving UH as the sole defendant.

On January 18, 2022, the trial court granted UH’s summary judgment

motion, finding that Yoak “cannot establish that [UH] owed him any actionable

duty” to establish a premises-liability claim; Yoak failed to plead common-law

negligence in his complaint; R.C. 5321.04(A)(3), which governs the obligations of a

landlord, does not apply to UH in the case at hand because UH did not own the

property; and because Yoak did not “set forth an actionable duty owed by UH * * *,

his nuisance claim fails as a matter of law.”

It is from this order that Yoak now appeals, raising one assignment of

error: “The trial court committed reversible error in granting defendants’ motion

for summary judgment.”

II. Law and Analysis

A. Summary Judgment Standard of Review

Appellate review of a decision granting summary judgment is de

novo. Barley v. Fitcheard, 8th Dist. Cuyahoga No. 91458, 2008-Ohio-6159, ¶ 12.
Pursuant to Civ.R. 56(C), the party seeking summary judgment must prove that

(1) there is no genuine issue of material fact; (2) they are 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 nonmoving party. Dresher v. Burt, 75 Ohio St.3d 280,

662 N.E.2d 264 (1996).

B. Notice Pleading Under Civ.R. 8

In granting summary judgment in the case at hand, the trial court

found that Yoak’s complaint “is devoid of * * * any allegations in regard to common

law negligence against” UH. We disagree.

Pursuant to Civ.R. 8(A), a complaint “shall contain * * * a short and

plain statement of the claim showing that the party is entitled to relief * * *.” The

Ohio Supreme Court has held that a “party is not required to plead the legal theory

of recovery or the consequences which naturally flow by operation of the law from

the legal relationship of the parties.” Ill. Controls v. Langham, 70 Ohio St.3d 512,

526, 639 N.E.2d 771 (1994). Rather, “the party asserting a claim must give sufficient

operative facts to provide fair notice to the defender of the claim.” Dottore v. Vorys,

Sater, Seymour & Pease, L.L.P., 8th Dist. Cuyahoga No. 98861, 2014-Ohio-25, ¶ 113.

“[T]o establish actionable negligence, the plaintiff must show the

existence of a duty, a breach of the duty, and an injury proximately resulting

therefrom.” Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d

677, 680, 693 N.E.2d 271 (1998).
Yoak’s complaint alleges that he “tripped over a board that was placed

by [a UH] employee * * * between the glass doors separating the [UH rehab center]

from the YMCA exercise facilities,” resulting in injury to his knee and ankle. We find

that these allegations are sufficient to put UH on notice that Yoak is claiming

common-law negligence. See Alexander v. Culp, 124 Ohio App.3d 13, 18, 705 N.E.2d

378 (8th Dist.1997) (“Although appellant did not plead common law negligence, it

is sufficient that the facts of the complaint assert the elements of common law

negligence.”).

C. Common-Law Negligence

1. Duty

Having found that Yoak pled a negligence claim, we turn to whether

this claim survives UH’s motion for summary judgment. We start by determining

whether UH owed Yoak a duty under common-law negligence jurisprudence. This

court has held that a “defendant’s duty to a plaintiff depends upon the relationship

between the parties and the foreseeability of injury.” Thayer v. B.L. Bldg. &

Remodeling, L.L.C., 8th Dist. Cuyahoga No. 105950, 2018-Ohio-1197, ¶ 24. “The

test for foreseeability is whether a reasonably prudent person would have

anticipated that an injury was likely to result from the performance or

nonperformance of an act.” Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75,

77, 472 N.E.2d 707 (1984).

“[A]ctors engaging in conduct that creates a risk to others have a duty

to exercise reasonable care to avoid causing physical harm.” Restatement of the Law
3d, Torts, Section 7 (2010). “The minimum standard of care expected under any

circumstance is to exercise that degree of care and caution that an ordinary careful

and prudent person would exercise under similar circumstances.” Cromer v.

Children’s Hosp. Med. Ctr. of Akron, 142 Ohio St.3d 257, 2015-Ohio-229, 29 N.E.3d

921, ¶ 27.

In the case at hand, the relationship between UH and Yoak is based

on a UH employee creating the allegedly dangerous condition that caused injury to

Yoak. UH physical-therapy assistant Jeanine Tamburro (“Tamburro”) testified in

deposition that she “was responsible for putting the board in the door” and that Yoak

“said he had just tripped and fell on it.” According to Tamburro, “probably less than

half an hour passed” between when she placed the board between the two doors and

when Yoak tripped on it. Tamburro “put it in the door so that it keeps the door from

shutting.” Additionally, injury is foreseeable if someone creates a tripping hazard

by stopping a door from shutting without using reasonable care.

Accordingly, we find that UH had a duty to act with reasonable care

when stopping the door from shutting.

2. Breach

We turn to whether UH breached its duty. Tamburro testified that

the board was “2 inches thick by approximately 5 or 6 inches high by about 6 inches

long.” This specific board was used as a “step-over” block during physical therapy,

and according to Tamburro, “we also used it to block the door.” Tamburro testified

that on “an average of twice a week for three years * * * the entire staff [of UH
employees] that worked at the Y” stopped the door from closing and locking using

this particular piece of wood.

Tamburro testified that she uses something called “transfer boards”

during physical therapy, but she did not stop the door from closing using a transfer

board. A transfer board is 20- to 24-inches long, and, according to Tamburro, “it

creates a tripping hazard immediately” if used to stop a door from shutting.

Yoak testified in his deposition that the board he tripped over was “a

one by six” that was “32 to 36 inches” long. Yoak further testified that

“12 to 16 inches” of this board was protruding from the doorway into the YMCA.

According to Yoak, had he looked straight down when he was walking, he could have

seen the board.

Upon review, we find that there are genuine issues of material fact as

to whether UH breached its duty. The evidence conflicts as to the size of the board

that was used to stop the door from closing. Specifically, Tamburro testified that it

was approximately six-inches long and Yoak testified that it was 32- to 36-inches

long. Compare Texler, 81 Ohio St.3d at 681, 693 N.E.2d 271 (finding that “the

bucket used to prop open the door contained protruding concrete blocks that could

cause serious injuries” and “adequate evidence in the record * * * supports the * * *

finding that” the defendant “was one hundred percent negligent in the manner by

which the bucket of concrete propped open the door * * *”).
3. Causation and Harm

Turning to the final two elements of a negligence claim, we find that

the issues of causation and harm were not argued or addressed by either party on

summary judgment. Because we find that the trial court erred by determining that

Yoak “cannot establish that * * * UH * * * owed him any actionable duty,” and thus,

summary judgment was improperly granted, we need not address causation and

harm for the first time on appeal.

4. Open and Obvious

On appeal, the parties raise the issue of an open-and-obvious danger,

which bars a landowner or occupier’s duty “to persons entering those premises

regarding dangers that are open and obvious.” Armstrong v. Best Buy Co., 99 Ohio

St.3d 79, 2003-Ohio-2573, 799 N.E.2d 1088, ¶ 5. Because UH is not an owner or

occupier of the YMCA premises, which is where this alleged incident took place, the

open-and-obvious doctrine does not “relieve [UH] of a duty of care * * *.” Thayer,

8th Dist. Cuyahoga No. 105950, 2018-Ohio-1197, at ¶ 26.

While the open-and-obvious doctrine does not eliminate the duty of

care in a common-law negligence action, “the open and obvious nature of a hazard

may be relevant for other purposes in connection with a negligence claim.” Thayer

at ¶ 26. Specifically, a “plaintiff’s failure to protect himself or herself from an obvious

hazard may constitute comparative negligence * * *.” Crumb v. LeafGuard by

Beldon, Inc., 8th Dist. Cuyahoga No. 108321, 2020-Ohio-796, ¶ 36. “Issues of

comparative negligence are for the jury to resolve unless the evidence is so
compelling that reasonable minds can reach but one conclusion.” Simmers v.

Bentley Constr. Co., 64 Ohio St.3d 642, 646, 597 N.E.2d 504 (1992).

Upon review, we find that reasonable minds can reach different

conclusions on whether Yoak was negligent, and if so, to what extent.

D. Premises Liability

“In Ohio, the status of the person who enters upon the land of another

* * * continues to define the scope of the legal duty that the landowner owes the

entrant.” Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312,

315, 662 N.E.2d 287 (1996). Traditionally, common law recognized three

classifications of entrants: 1) trespasser; 2) licensee; and 3) invitee. Id.

It is undisputed that Yoak did not enter UH’s premises — specifically,

the UH rehab center — on August 13, 2018. Yoak allegedly fell and was injured while

on the YMCA’s premises. In other words, UH was not a “landowner” who owed a

duty to an “entrant” in the case at hand. Therefore, we find that UH did not owe a

duty to Yoak under premises liability law, and the court properly granted summary

judgment to UH on this claim.

E. Nuisance

This court has held that a “qualified nuisance involves a lawful act ‘so

negligently or carelessly done as to create a potential and unreasonable risk of harm,

which in due course results in injury to another.’” Temple v. Fence One, Inc., 8th

Dist. Cuyahoga No. 85703, 2005-Ohio-6628, ¶ 41, quoting Taylor v. Cincinnati, 143

Ohio St. 426, 436, 55 N.E.2d 724 (1943). In other words, for a plaintiff to succeed
on a qualified nuisance claim, he or she “must show that the [defendant] breached

an applicable duty of care and the breach proximately caused [the plaintiff’s]

injuries.” Hardin v. Naughton, 8th Dist. Cuyahoga No. 98645, 2013-Ohio-1549,

¶ 22.

In the case at hand, the trial court granted summary judgment to UH

on Yoak’s nuisance claim based on a finding that, as a matter of law, “the allegations

of the Complaint do not set forth an actionable duty owed by * * * UH * * * to [Yoak].”

Because we reversed the trial court on this point and found that the allegations of

the complaint contain a cause of action for common-law negligence, we likewise find

that the complaint alleges a cause of action for qualified nuisance. Furthermore, for

the same reason that Yoak’s negligence claim survives summary judgment, Yoak’s

claim for qualified nuisance survives summary judgment.

F. Negligence Per Se

The trial court granted summary judgment to UH on Yoak’s

negligence per se claim, finding that he “concedes that R.C. 5321.0[4](A)(3) is not

applicable to * * * UH * * * in this matter because [the] YMCA, not * * * UH * * *,

was the property owner.” It does not appear that Yoak is appealing the granting of

summary judgment on this claim; therefore, we will not review this aspect of the

trial court’s journal entry.

G. Conclusion

The trial court erred by granting summary judgment in favor of UH

on Yoak’s negligence and qualified-nuisance claims, and his sole assignment of error
is sustained in part. The trial court’s journal entry is affirmed in part and reversed

in part. Summary judgment remains as to the premises-liability and negligence per

se causes of action. Summary judgment is reversed as to the common-law

negligence and qualified-nuisance claims. Case remanded for proceedings

consistent with this opinion.

Judgment affirmed in part, reversed in part, and remanded for

proceedings consistent with this sentence.

It is ordered that appellees and appellant share costs herein taxed.

The court finds there were reasonable grounds for this appeal.

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.

LISA B. FORBES, JUDGE

EILEEN A. GALLAGHER, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8212246. Public record. Not legal advice.