Sanborn v. Univ. of Cincinnati

[Cite as Sanborn v. Univ. of Cincinnati, 2023-Ohio-2657.]

IN THE COURT OF CLAIMS OF OHIO

CASIE SANBORN Case No. 2022-00222JD

Plaintiff Magistrate Scott Sheets

v. DECISION OF THE MAGISTRATE

UNIVERSITY OF CINCINNATI

Defendant

{¶1} Plaintiff asserts a negligence claim for injuries she sustained on July 28, 2018

when she fell while returning to her vehicle after she and her family attended a soccer

match at defendant’s Nippert Stadium. The case was bifurcated and the issue of liability

was tried before a magistrate on June 20, 2023. In addition to plaintiff, defendant’s

Director of Facilities, Grounds, Moving, and Transportation, Elizabeth Rains, and Senior

Construction Administrator, Doug Newell, testified at trial. Several photographs, marked

as joint exhibits, were admitted into evidence. For the following reasons, the magistrate

recommends judgment in defendant’s favor.

Findings of Fact

{¶2} On July 28, 2018, plaintiff attended a soccer match on defendant’s campus

with her husband and four children. While walking to the parking garage after the game,

plaintiff fell and injured her left leg after she left the sidewalk to cut through a grassy, hilly,

and unlit tree grove. Defendant’s college of business was under construction and

adjacent to the area as well. However, a fence enclosed the entire construction zone and

signs were present to detour pedestrians around the construction. Plaintiff’s fall occurred

in an area outside of this construction zone, where no construction activity had taken

place.

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{¶3} Plaintiff left the soccer venue at approximately 9:30 or 9:45; it was dark.

Plaintiff and her family walked around the fenced-off construction area, following the

sidewalk to the left depicted in Exhibit C, toward their parked car. As depicted in Exhibit

J, lights lined the sidewalk. Plaintiff, while carrying her 4-year-old child, followed her

husband off the sidewalk to cut through an adjacent dark grassy area that, in addition to

being unlit, contained hills and several large trees.

{¶4} As plaintiff descended one of the hills, which she approximated as 3-4 feet

high, plaintiff’s left leg and foot got caught in a grass covered hole large enough to engulf

her entire foot. No pictures of the hole were offered at trial and plaintiff did not testify to

its exact dimensions or any other physical characteristics. However, plaintiff testified that

she did not see the hole before stepping into it and that, as grass concealed it, she did

not believe that she would have been able to see it even in daylight. Plaintiff’s left leg

eventually required surgery.

{¶5} Plaintiff fell in the area encompassed within the red circle in Exhibit A, after

departing the curved sidewalk near the bottom of the circle. Exhibits B-1 and B-2 depict

the area during the daytime from ground level. Exhibit J is an elevated picture of the area

from an adjacent building. It depicts the area on July 28, 2018, at 9:46 p.m. Plaintiff’s fall

occurred somewhere in the dark group of trees near the center of this picture that are

between the partially constructed business college at the top and the curvy sidewalk that

runs along the trees’ left side.

{¶6} Elizabeth Rains, defendant’s Director of Facilities, Grounds, Moving and

Transportation, oversees maintenance of defendant’s grounds. She explained that the

grassy, mounded area where plaintiff fell is a tree grove intended to provide a natural

aesthetic to defendant’s campus and is not intended for pedestrian traffic. Mounds were

intentionally placed in the tree grove and accessible sidewalks surround the tree grove to

discourage pedestrian travel and to prevent “cow paths” caused by foot traffic through

natural areas. The sidewalks are lit. However, there are no warning signs in the tree

grove where plaintiff fell and defendant was aware that pedestrians traversed this area.

{¶7} Ms. Rains is notified of all repairs to defendant’s grounds as well as reported

injuries that occur on and/or are related to grounds. She has access to the work order

system where repairs are recorded. Ms. Rains received no reports of any injuries in the

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area where plaintiff fell before July 28, 2018. She could locate no record of any damage

or work in the area leading up to plaintiff’s injury.

{¶8} Grounds crew employees traverse campus on a daily basis performing their

various job duties and report hazards and needed repairs. Other staff, as well as students

and vistiors, can also report hazards on campus. Additionally, there are enviornmental

health and safety employees who perform daily “walkabouts,” inspecting defendant’s

campus for possible hazards. Rains also personally performs a walkabout once a week.

These walkabouts are not limited to sidewalks.

Conclusions of Law

{¶9} To prevail on a claim for negligence, plaintiff must prove by a preponderance

of the evidence that (1) the defendant owed the plaintiff a duty, (2) the defendant breached

that duty, and (3) the breach of the duty proximately caused the plaintiff’s injury.” Jenkins

v. Ohio Dept. of Rehab & Corr., 10th Dist. No. 12AP-787, 2013-Ohio-5106, ¶ 6. It is well

established that a preponderance of the evidence “‘means evidence that is more

probable, more persuasive, or of greater probative value.’” Brothers v. Morrone-O’Keefe

Dev. Co., LLC, 10th Dist. Franklin No. 06AP-713, 2007-Ohio-1942, ¶ 49, quoting Manogg

v. Stickle, 5th Dist. Licking NO. 99CA56, 1999 Ohio App. LEXIS 6322 (Dec. 29, 1999).

{¶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, 662 N.E.2d

287 (1996). Though seemingly not in dispute, the magistrate finds that plaintiff was an

invitee on July 28, 2018. See Brown v. Cleveland Baseball Co., 158 Ohio St.1, 106

N.E.2d 632 (1952). An owner or occupier of premises generally owes invitees “a duty of

ordinary care in maintaining the premises in a reasonably safe condition and has the duty

to warn its invitees of latent or hidden dangers.” Armstrong v. Best Buy Co., Inc., 99 Ohio

St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 5.

{¶11} In order “to establish that the owner or occupier failed to exercise ordinary

care, the invitee must establish that: (1) the owner of the premises or his 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

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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. Franklin No. 04AP-

83, 2004-Ohio-3392, ¶ 6. Indeed, if defendant failed “to conduct a reasonable inspection

of the premises, [it] will be charged with constructive knowledge of any latent defect which

[it] would have discovered had [it] conducted the reasonable inspection” and it “may face

liability for failing to warn the invitee of the latent defect or otherwise make the premises

reasonably safe.” Rowe v. Pseekos, 10th Dist. Franklin No. 13AP-889, 2014-Ohio-2024,

¶ 7. However, a landowner’s duty is to “undertake reasonable inspections, not to inspect

everything that might conceivably cause injury.” (Emphasis sic.) Aldamen v. Sunburst

USA, Inc., 10th Dist. Franklin No. 08AP-235, 2008-Ohio-5071, ¶ 17, quoting Tarkany v.

Bd. of Trustees of Ohio State Univ., 10th Dist. Franklin No. 90AP-1398, 1991 Ohio App.

LEXIS 2648, 5 (June 4, 1991). Moreover, “a landowner who undertakes an inspection is

not held to a 100 percent success rate, if the inspection was reasonable under the

circumstances.” Rowe at ¶ 8.

Decision

{¶12} Based on the predicative facts set forth, supra, the magistrate makes the

following additional factual findings as well as his recommendation for judgment to the

court.

{¶13} At trial, plaintiff conceded that defendant lacked actual notice. The

magistrate also finds that plaintiff failed to prove by the greater weight of the evidence

that defendant had constructive notice. Plaintiff presented no evidence as to the length

of time that the hole existed. In addition, there had been no hazards discovered or

reported and no repairs in the tree grove before plaintiff’s accident. Thus, no

circumstances existed that would have imparted notice to defendant of a general problem

with holes or other tripping hazards in the area.

{¶14} There is also no evidence that nearby construction somehow imparted

constructive notice. Mr. Newell testified that the fence separated all construction activity

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from areas outside the fence and that no construction activity took place in the tree grove

where plaintiff fell. Plaintiff presented no evidence that construction activity caused or

contributed to the hole in which she fell.

{¶15} Moreover, the magistrate finds plaintiff failed to prove by the greater weight

of the evidence that defendant failed to conduct reasonable inspections, which might also

have imparted constructive notice. Defendant presented evidence establishing that, in

addition to reports from employees who perform daily grounds’ work, there are designated

environmental health and safety employees who perform daily walkabouts looking for

hazards. Ms. Rains also walks the campus on a weekly basis. The magistrate also notes

that plaintiff testified that grass completely covered the hole that caused her fall. Thus,

the magistrate finds that the hole would have been discovered only through a very close

inspection of the exact area where plaintiff fell. This is simply not what a reasonable

inspection or the duty of ordinary care requires. The evidence establishes that several of

defendant’s employees undertake regular and frequent visual inspections and the

magistrate finds that defendant’s visual inspection routine is reasonable under the

circumstances. See Tarkany at 6 (A routine visual inspection can satisfy the duty of

ordinary care.); Rowe at ¶ 9-11 (A cursory, visual inspection does not breach the duty to

conduct a reasonable inspection.)

{¶16} Consequently, lacking notice of the hole that caused plaintiff’s fall, defendant

did not breach its duty of ordinary care despite the absence of warning signs in the tree

grove. The hills and darkness themselves served as an obvious warning of their inherent

hazards. Moreover, plaintiff did not trip on a tree root or on one of the hills in the tree

grove; she stepped into a concealed hole. If defendant had notice of the hole, then it

would have had a duty to remedy the condition or warn of it, but it lacked notice and,

therefore, it breached no duty.

{¶17} For the foregoing reasons, the magistrate recommends judgment in

defendant’s favor.

{¶18} A party may file written objections to the magistrate’s decision within 14 days

of the filing of the decision, whether or not the court has adopted the decision during that

14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files objections,

any other party may also file objections not later than ten days after the first objections

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are filed. A party shall not assign as error on appeal the court’s adoption of any factual

finding or legal conclusion, whether or not specifically designated as a finding of fact or

conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically

objects to that factual finding or legal conclusion within 14 days of the filing of the decision,

as required by Civ.R. 53(D)(3)(b).

SCOTT SHEETS

Magistrate

Filed June 27, 2023

Sent to S.C. Reporter 7/31/23