Kelvin L. Boddie, for appellant.
Chris C. Tsitouris, for appellee.
Judges: Tyack, J. Lazarus and Young, JJ. concur.
On August 18, 1996, Ophelia Felder filed a complaint against Victory Fitness Center of Columbus, Inc., ("Victory"), alleging negligence arising our of a slip and fall occurring at Victory's eastside facility. Victory filed a motion for summary judgment. On November 17, 1997, the trial court filed a decision and entry, finding that Ms. Felder failed to show Victory did not use ordinary care. Accordingly, the trial court granted Victory's motion for summary judgment.
Ms. Felder (hereinafter "appellant") has appealed to this court, assigning the following as error:
"FELDER'S FIRST ASSIGNMENT OF ERROR:
"The trial court erred in granting Victory's motion for summary judgment, since reasonable minds could conclude, after construing the evidence most strongly in Felder's favor, that Victory knew or should have known of the hazardour condition on its premises and that a reasonable inspection would have revealed this condition.
"FELDER'S SECOND ASSIGNMENT OF ERROR:
"The trial court erred when it allowed into evidence certain photographs which were attached to Victory's Motion for Summary Judgment. Such evidence had not been properly authenticated as required by the Ohio Rules of Evidence."
In her first assignment of error, appellant contends the trial court erred in granting summary judgment in favor of Victory (hereinafter "appellee") because reasonable minds could conclude appellee knew or should have known of a hazardous condition on its premises. In order to grant summary judgment, the court must be satisfied, construing the evidence most strongly in favor of the nonmoving party, that: there is no genuine issue of material fact, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to but one conclusion, that conclusion being adverse to the party opposing the motion. Tokles & Son, Inc. v. Midwestern Indemn. Co. (1992) 65 Ohio St. 3d 621, 629, 605 N.E.2d 936, citing Harless v. Willis Day Warehousing Co. (1978), 54 Oho St. 2d 54, 375 N.E.2d 46.
Construing the evidence most strongly in appellant's favor, the record establishes the following general facts. Appellant, fifty-nine years old at the time of the slip and fall, was a member of appellee's health club. On August 9, 1995, appellant went to the facility with her daughter, Sharon A. Francis, arriving at approximately 6:00 p.m. After exercising, appellant and Ms. Francis went in the whirlpool. After this, they got into the swimming pool. Appellant then got out of the swimming pool in order to use the restroom. She wrapped a towel around herself. Appellant walked from the pool area into the shower room where she used her towel to dry off. She stepped on the towel to dry her feet. Appellant then proceeded into the locker room, which was adjacent to the shower room. Once in the locker room, appellant slipped and fell, breaking her left femur. It is virtually undisputed appellant slipped on water.
Appellant contends reasonalbe minds could conclude appellee knew or should of known of a hazardous condition, i.e., water on the floor. Appellant asserts the evidence creates a genuine issue because appellee was aware that water accumulated on the floor, appellee had been told in the past by patrons that water was on the floor and needed to be mopped up, and appellee knew the floor was slippery when wet.
In general, an owner of premises owes business invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition so that its customers are not unnecessarily and unreasonably exposed to danger. Paschal v. Rite Aid Pharmacy Inc. (1985) 18 Ohio St. 3d 203, 480 N.E.2d 474. However, the owner is not an insurer of the customer's safety. Id.
A distinction exists between a hazardous condition created by the owner and one created by a third party. Guilford v. Central Hardware Co. (1989), 62 Ohio App.3d 58, 60, 574 N.E.2d 564. Where an injury arises from a slip and fall due to a hazardous condition not created by the owner, the plaintiff must show the owner had, or in the exercise of ordinary care should have had, notice of the hazardous condition. Guilford, 62 Ohio App.3d at 60-61. In the case at bar, the alleged hazardous condition was water on the floor, and it is undisputed that appellee did not actually cause such condition. Initially, therefore, in oder to avoid summary judgment in favor of appellee, there must be a genuine issure as to whether apellee had or should have had notice of the water on the floor.
Construing the evidence most strongly in appellant's favor, appellee was aware, as a general matter, that water would get on the floor of its locker and shower rooms. In order to get to the locker room from the swimming pool/whirlpool area, patrons must enter the shower room which is adjacent to the locker room. Meghan Reed, manager of the facility at the time of appellant's slip and fall, indicated in a tape-recorded statement that appellee posted warning signs regarding slippery floors in the pool area, shower room and locker room due to the frequence of people dripping. Ms. Reed was aware that the floors were slippery when wet. Jennifer Pierce, appellee's staff leader at the time of the incident, stated in her deposition that all employees on duty checked the locker room floor periodically for water. (Pierce deposition at 15.)
The evidence above indicates that appellee was aware that its floors, in general, could get wet frequently and that the floors were slippery when wet. However, even if we assume appellee was aware that water on the floor was a recurring hazardous condition, liability is not necessarily established. As indicated above, appellee posted warning signs throughout its facility.
A shopkeeper has a duty to warn of latent or concealed perils. Keiser v. Giant Eagle, Inc. (1995), 103 Ohio App.3d 173, 176, 658 N.E.2d 1115. An owner's obligation to use reasonable care includes the duty to warn patrons of dangerous conditions known to or reasonably ascertainable by the owner which a patron should not be expected to discover or protect himself or herself against. Jackson v. Kings Island (1979), 58 Ohio St.2d 357, 359, 390 N.E.2d 810. In this case, even if we assume water on the floor was a concealed peril, appellee sufficiently warned its patrons of such condition.
Appellee posted warning signs in the pool area, shower room and locker room. These signs were posted at all times. A sign in the swimming pool/whirlpool area posted just before one enters the shower room states:
"FLOOR MAY BE SLIPPERY WHEN WET!!
"WEARING OF NON-SKID FOOTWEAR MUST BE WORN AT ALL TIMES!" (Pierce deposition at 21.)
In the shower room, just before one enters the locker room, is a sign that states:
"FLOORS ARE SLIPPERY WHEN WET.
"FOR YOUR SAFETY FOOTWEAR IS RECOMMENDED
"PLEASE DRY BEFORE ENTERING DRESSING ROOM." (Pierce deposition at 35; Felder deposition at 34, Exhibit No. 4.)
In the locker room, a yellow floor sign is placed, which reads: "CAUTION WET FLOOR." All of these signs were posted on the evening appellant fell. (Reed affidavit; Pierce deposition at 20-21; Blackburn deposition at 20-21.)
Appellant was aware of at least some of these signs and of the existence and danger of wet floor(s). At the time of appellant's fall, appellant had been a member of the club for approximately eight months. (Felder deposition at 21.) Appellant was aware of signs that cautioned patrons to be careful where they walked and to dry their feet, that the floors were slippery when wet, and that protective footwear was recommended. (Felder deposition at 29-31.) Indeed, just prior to her fall, appellant dried her feet in the shower room and looked up at the sign which cautioned that the floors are slippery when wet, indicated that footwear is recommended, and stated one should dry his or her feet before entering the dressin room. Felder deposition at 34. Appellant then told another patron that appellant wanted to dry her feet carefully because she did not want to fall. Id.
Appellant was aware that she was supposed to wear protective foot coverings. Felder deposition at 54-55. Appellant had worn sandals to the facility in the past and indicated these would have prevented her from slipping more than just bare feet. Felder deposition at 37-38. Appellant did not have sandals on the evening in question. Felder deposition at 37, 54-55.
A shopkeeper is under no duty to protect a business invitee from dangers that are known to such invitee or are so obvious and apparrent to such invitee that the invitee may reasonably be expected to discover them and protect himself or herself against them. Paschal at 203-204, citing Sidle v. Humphrey (1968), 13 Ohio St.2d 45, 233 N.E.2d 589, paragraph one of the syllabus; Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d 642, 644, 597 N.E.2d 504. Here, appellant's own testimony indicates that she was generally aware of the condition of the floors and that they were slippery when wet. Appellant knew footwear was recommended due to the slippery nature of the floors in the shower and locker rooms but did not have her sandals that evening. Hence, reasonable minds could only conclude that appellee adequately warned of the potential dangerous condition and that appellant was aware of such potential danger.
As a final matter, appellant failed to raise a genuine issue as to appellee's knowledge of a specific dangerous condition on the evening in question. As indicated above, there is no dispute appellant slipped on water. It is not clear, however, exactly how the water got on the floor. There seems to be no question that the water was either tracked-in by another patron or dripped off of appellant herself. There is no evidence of any excessive water or any water at all being on the floor earlier in the day or evening. (Pierce affidavit; Reed affidavit). Witnesses on the scene immediately after appellant's fall did not notice the floor at all or noticed no water or just a little water on the floor other than where appellant had fallen. (Pierce affidavit; Reed affidavit; Reed recorded statement; Felder deposition at 42; Francis deposition at 29, 41, 47; Pierce deposition at 41).
Appellant's view of the locker room floor was not obstructed, and she saw no water prior to her fall. (Felder deposition at 42.) After her fall, appellant saw a "little puddle" on the floor in the area where she had fallen. Id. Appellant stated that she had dried herself enough not to have water dripping off her, and she was sure that water had not dripped off of herself. Felder deposition at 42-43. However, she was sure her bathing suit was still wet. Felder deposition at 35. Ms. Pierce stated in her affidavit that appellant's body, swimming suit and feet were wet. Ms. Reed noticed water on and around appellant. (Reed affidavit.) Ms. Reed stated apellant was "very wet." (Reed recorded statement.) Ms. Pierce testified that appellant's arms were still quite wet, and Ms. Blackburn testified appellant's back and bathing suit were wet. (Pierce deposition at 33; Blackburn deposition at 25.) Ms. Francic stated her mother's suit was wet and that she dried her mother off and dressed her after the fall. (Francic deposition at 59.)
The above evidence reveals no genuine issue as to whether appellee had notice of a specific dangerous condition such that it had a duty to warn appellant of such specific condition. Moreover, if we assume the water was on the floor due to another patron, not appellant, there is no evidence that appellee had notice of such specific condition or should have had notie of such in time to remove it. Notwithstanding this, appellee had warning signs posted throughout the facility at all times, and appellant was aware of such signs and of the potential for wet, slippery floors.
In summary, the evidence, construed most strongly in appellant's favor, indicates that: appellee's floors in the shower and locker rooms were, as a general matter, wet due to patrons dripping after being in the showers, whirlpool and/or swimming pool, and appellee was aware of this and the slippery nature of such wet floors; appellee posted adequate warning signs regarding such condition(s); appellant was aware of such condition(s) and the warning sign(s); and appellee was not aware (and did not lack ordinary care in being unaware) or a, if any, specific hazardous condition on the evening in question. Hence, reasonable minds could only conclude that appellee met its duty to warn patrons of a continuing, potentially hazardous condition, and/or such condition was an open and obvious and/or a know danger to appellant. Accordingly, reasonable minds could only conclude that appellee used ordinary care and is not liable for negligence.
Appellant cites to this court's opinion in Gon v. Dick Clark's American Bandstand & Grill, 1997 Ohio App. LEXIS 534 (Feb. 11, 1996), No. 86APE07-910, unreported (1996 Opinions 294), and attempts to distinguish it. In Gon, a restaurant patron slipped and fell allegedly on water. The Gon plaintiff argued it was foreseeable that water would continuously be spilled in the are where she fell. Id. at 300. However, this court concluded there was no evidence to support such contention. Id. at 300-302.
Appellant argues this case differs from the Gon case because here, the evidence shows water on the floor was an ongoing condition. However, even if we accept this as true, reasonable minds still could only conclude appellee was not negligent given the warning signs and apellant's own awareness of the hazardous condition. Appellant fell in the locker room of an exercise facility. Such locker room was adjacent to a shower room which was adjacent to a whirlpool/swimming pool area. Wet floors in such areas are not extraordinary conditions byt are conditions a reasonable person would expect in such areas. See Tarescavage v. Meridian Condominium, Inc., 1994 Ohio App. LEXIS 2048 (May 12, 1994), Cuyahoga App. No. 65446, unreported, at 8-9; see, also, Graham v. Cedar Point, 1997 Ohio App. LEXIS 5813 (Dec. 31, 1997), Erie App. No. E-97-031, unreported.
The fact that a patron slips and falls on a floor does not, standing alone, establish liability. See J.C. Penney Co., Inc. v. Robison (1934) 128 Ohio St. 626, 193 N.E.401, paragraph four of the syllabus. Rather, there must be evidence tending to show some negligent act or omission of the storekeeper caused the fall. Id. The evidence here does not show such a negligent act or omission such that reasonable minds might conclude appellee was negligent. To hold otherwise in this case would be to make appellee the insurer of appellant's safety. Therefore, summary judgment in favor of appellee was appropriate.
Accordingly, appellant's first assignment of error is overruled.
In her second assignment of error, appellant contends the trial court erred in admitting certain photographs attached to appellee's motion for summary judgment. These photographs consisted of pictures of the facility at issue, specifically, three photographs showing three warning signs. Appellant argues these photographs were not properly authenticated as required by Evid.R. 901. The trial court denied appellant's motion to strike the photographs, stating such photographs were proper under Civ.R. 56 since they were attached as exhibits to a deposition.
Evid.R. 901(A) states:
"The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims."
One example of authenticating or identifying is testimony by a witness with knowledge that a matter is what it is claimed to be. Evid.R. 901(B)(1).
In an affidavit attached to appellee's motion for summary judgment, Ms. Reed, appellee's manager at the time of the incident, stated that the three pictures accurately represented the warning signs on display at the time of appellant's accident. This constituted sufficient authentification or identification and, therefore, the trial court did not err in considering/admitting these photographs.
Accordingly, appellant's second assignment of error is overruled.
Having overruled each of appellant's assignments of error, the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
LAZARUS and YOUNG, JJ. concur.