Brian Miller Columbus Ohio Personal Injury Attorney    

Case Law Summary - 2014: July – September

   

Trip and Fall

Yockey v. Best Buy

Mrs. Yockey and her husband entered the Best Buy in Wooster to return a printer, where Mrs. Yockey tripped and fell on a rug that was bunched up. The trial court dismissed on summary judgment after finding the rug was an open and obvious danger. However, the 9th District reversed. The lower court primarily relied on Alfonso v. Marc Glassman, Inc., 9th Dist. Summit No. 24604, 2009-Ohio-5149, which held that a Plaintiff who had tripped on a bunched up rug could not recover based on the open and obvious doctrine. In Alfonso, the Plaintiff had taken several steps on the rug before falling, there was evidence on the record that the hump in the rug was visible to the average person, and there was nothing obstructing the rug.

Here, the court distinguished the case from Alfonso. Even though a Best Buy employee testified that he had checked the rug, which had a tendency to bunch up, and smoothed it out immediately prior to the Yockeys entering the store, Mrs. Yockey fell immediately upon taking her first step on the rug, and there was no evidence that anyone, including her husband who was 3-5 steps in front of her, could visibly see the humps in the rug. Additionally, there was tinted glass immediately preceding the rug at the entrance of the store which obstructed the view of patrons entering the store. The fact that nothing would have obscured the rug had Mrs. Yockey looked down was not dispositive as to whether the ripples in the rug would have been observable to Mrs. Yockey as she walked in. Since there was an issue of fact with respect to whether the rug was open and obvious, the Court held that summary judgment based upon the open and obvious doctrine was inappropriate.

Yockey v. Best Buy, 2014-Ohio-4330 (9th Dist.)

   

Johnson v. Wal-Mart Stores E., L.P.

A customer in Wal-Mart was injured when an electric cart either hit or nearly hit her as both entered a “blind intersection,” causing her to fall and become injured.

Here, the court distinguished the case from Alfonso. Even though a Best Buy employee testified that he had checked the rug, which had a tendency to bunch up, and smoothed it out immediately prior to the Yockeys entering the store, Mrs. Yockey fell immediately upon taking her first step on the rug, and there was no evidence that anyone, including her husband who was 3-5 steps in front of her, could visibly see the humps in the rug. Additionally, there was tinted glass immediately preceding the rug at the entrance of the store which obstructed the view of patrons entering the store. The fact that nothing would have obscured the rug had Mrs. Yockey looked down was not dispositive as to whether the ripples in the rug would have been observable to Mrs. Yockey as she walked in. Since there was an issue of fact with respect to whether the rug was open and obvious, the Court held that summary judgment based upon the open and obvious doctrine was inappropriate.

The court held that the store operator had no duty to warn customers using a cart of the dangers inherent in its use or to warn an injured customer of the dangers posed by carts. The alleged failure to warn customers as to proper operation was not material, as there was no allegation of improper use of the cart. The Court also held that the store had no duty to reduce the height of product displays near intersections as to prevent the creation of blind intersections.

Johnson v. Wal-Mart Stores E., L.P.,2014-Ohio-2998 (2nd Dist.)

 


 

Wrongful Death

Moore v. Covenant Care Ohio, Inc.

A nursing home resident’s estate brought a survivorship and wrongful death suit against a pharmacy, the dispensing pharmacist, and a consulting pharmacist for the defendants’ failure to ensure delivery of physician-ordered anticoagulant. The resident died after she developed blood clots. The trial court granted summary judgment for the pharmacy based on determination that the pharmacy did not owe a duty of care to the resident.

The 6th District reversed. It held that the Plaintiff’s expert witness, a coroner who determined the resident’s death could have been prevented had the pharmacy issued the resident’s physician-ordered anticoagulation medication, was permissible even though she was not a physician. The responsibility of others, including nursing home employees, was irrelevant as to the issue of whether the pharmacy owed the resident a duty of care.

The Court further held that the pharmacy had assumed the nursing home’s statutory duties to the resident when they contracted with the nursing home to provide those services. Finally, the pharmacy owed the resident the common law duty to exercise reasonable care in dispensing medication.

Moore v. Covenant Care Ohio, Inc., 2014-Ohio-4113 (6th Dist.)

 


 

Public Transportation - Negligence

Foster v. Central Ohio Transit Authority

Plaintiff filed suit after he fell on a COTA bus as it pulled away from the stop where he got on the bus. The trial court granted summary judgment for COTA, citing Yager v. Marshall, 129 Ohio St. 584, 587 (1935), and held that there was no “jerk [which was] unusual in some respect such as in its suddenness, force, or violence.” Here, the 10th District reversed on the grounds that there was a material issue of fact. The plaintiff testified that the bus driver caused the bus to lurch forward suddenly, unlike the usual bus driver, causing him to fall and dislocate his shoulder. The Court found that since there was some evidence that could be used to prove that the bus had jerked in an unusually sudden, forceful, or violent manner, summary judgment was improper.

Foster v. Cent. Ohio Transit Auth., 2014-Ohio-4362 (10th Dist.)

 


 

Recreational Activity Doctrine

Price v. Decker

The plaintiff, Price, was injured when he was flying a model airplane. Price was struck in the leg by Decker’s model plane. The court found that the loss of control of a model airplane is a foreseeable and customary risk of participating in the recreational activity of flying model airplanes. Therefore, the injuries to Price when the plane struck his leg was a foreseeable and customary risk of the activity he was engaged in and the defendant, Decker, was entitled to summary judgment. Price was denied recovery for his injuries because he was not able to prove that Decker’s actions—losing control of the model airplane—were reckless or intentional as required to overcome the recreational activity doctrine.

Price v. Decker, 2014-Ohio-1125 (5th Dist.)

 


 

Negligence - Primary Assumption of Risk

Kinkade v. Noblet

A participant in a Halloween parade who was passing out candy was injured when she approached a float, a decorated trailer being pulled by a truck, for more candy. The wheels ran over her foot/ankle.

The trial court held that the plaintiff was barred from recovery because walking next to a float constitutes an inherently dangerous activity, from which risks could not be eliminated, and thus qualified to negate negligence claims under the primary assumption of risk doctrine. Further, the trial court found the wheels of the float to be an open and obvious danger. Finally, there was no evidence that the conduct of the truck driver, the defendant, created an unreasonable risk of harm to the parade participant, the plaintiff.

The 5th District affirmed. This was a case of first impression, in that the Court noted that “parades” qualify under the primary assumption of risk doctrine, and applied the Gallagher analysis. Since the truck driver was not reckless, he could not be held liable for the ordinary risks of participating in a parade with a float.

Kinkade v. Noblet, 2014-Ohio-3172 (5th Dist.)

 


 

Government Immunity - Political Subdivision Immunity

Fedarko v. Cleveland

A pedestrian filed a negligence suit against the city after she stepped on a manhole and it gave way, causing her to fall into an open hole beneath the sidewalk and become injured. The trial court denied the city’s motion to dismiss the case through summary judgment. The city attempted to claim political subdivision immunity. Political subdivision immunity, as laid out in R.C. 2744.02(B)(2), would protect the city from liability when it was performing certain governmental functions.

The 8th District affirmed the decision, and held that the manhole cover and the water meter vault (which the manhole was covering) were part of the city’s water system—despite the fact that the water meter vault was no longer functioning—not part of the sidewalk. Therefore, the city was within the exception to political subdivision immunity because the water system is a proprietary function that the city can be held liable for, as provided for by R.C. 2744.02(B)(2).

Cities are immune from negligence actions for discharging the governmental function of establishing and maintaining a sidewalk, but manhole covers and other aspects of the city’s water system are an exception to immunity.

Fedarko v. Cleveland, No. 100223, 2014-Ohio-2531 (8th Dist.)

 


 

Torts - Survivorship of Punitive Damages

Whetstone v. Binner

In an action for assault, battery, false imprisonment, and IIED the trial court found that punitive damages could not be awarded after defendant died of cancer.

The Fifth District reversed, because Ohio law provided no per se prohibition against the imposition of punitive damages against a deceased tortfeasor. The evidence indicated that the defendant had maliciously choked and attempted to kill the plaintiff’s minor child by smothering the child with a pillow. The Court stated that allowing the imposition of punitive damages on the defendant’s estate would deter similar conduct (they noted that in Ohio the purpose of punitive damages it to punish the tortfeasor and deter similar conduct, not to compensate the plaintiff). Further, the statutory language in R.C. § 2305.21 explicitly authorizes the survival of punitive damages claims not only in favor of a decedent entitled to a claim, but also against a decedent liable for such a claim.

Whetstone v. Binner, 2014-Ohio-3018, 15 N.E.3d 905 (5th Dist.)

 


 

Pets - Equine Immunity

Smith v. Landfair

Mr. Landfair was removing his horse from a trailer when he lost control of the horse and fell to the ground. Mr. Landfair fell over when the horse was startled by a vehicle that passed by. Seeing Mr. Landfair in distress, Ms. Smith came to Mr. Landfair’s rescue and as a result she was kicked in the face by the horse. This case was remanded by the Supreme Court of Ohio to the 9th District Court of Appeals to determine whether Landfair’s conduct was wanton as to overcome the immunity granted to him by his participation in equine activities. See O.R.C. §2305.321. "Wanton misconduct is the failure to exercise any care toward those to whom a duty of care is owed in circumstances in which there is great probability that harm will result." (quoting Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, paragraph three of the syllabus.).

The court held that summary judgment was inappropriate because the trial court ignored the plaintiff’s, Ms. Smith’s, affidavit completely when granting the defendant’s motion for summary judgment. The affidavit put on evidence that showed Mr. Landfair knew that the horse he was handling had a tendency to be “flighty” and that she should not be unloaded while there were loud noises around. There was also evidence put on that Mr. Landfair was too elderly to handle the horse by himself, he was hard of hearing and that the horse should have been sedated prior to removal from the trailer. This evidence, which was disregarded by the trial court, resulted in the appellate court remanding the case for reapplication of the summary judgment standard. “[I]t is appropriate to remand so that the trial court may apply the summary judgment standard and determine whether, when viewed in the light most favorable to Ms. Smith, there was a genuine dispute of fact as to whether Mr. Landfair's behavior was wanton.”

Smith v. Landfair, 2014-Ohio-3314 (9th Dist.)

***These case summaries were adapted from the Ohio State Bar Association's official reports. All cases appear on the OSBA website at www.ohiobar.org, as well as in the OSBA Report Online.***

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