IN THE COURT OF APPEALS OF FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ROBERT A. NEINAST
PLAINTIFF-APPELLANT,BOARD OF TRUSTEES OF THE
VS.
FAIRFIELD COUNTY DISTRICT
LIBRARY,DEFENDANT/APPELLEE.CASE NO. 11 CA 26
COMMON PLEAS COURT
CASE NO. 09 CV 0657
BRIEF OF APPELLEE
Jason M. Dolin (0041820)
Assistant Prosecuting Attorney
Fairfield County, Ohio
239 West Main Street, Ste. 101
Lancaster, Ohio 43130
740-652-7560
740-653-4708 (Fax #)
Counsel for Appellee
Robert A. Neinast
8617 Ashford Lane
Pickerington, Ohio 43147
(740) 759-1601
Appellant, Pro Se
TABLE OF CONTENTS
PAGE TABLE OF AUTHORITIES ii ASSIGNMENTS OF ERROR PRESENTED FOR REVIEW BY APPELLANT 1 ISSUES PRESENTED FOR REVIEW 2 STATEMENT OF CASE 3 STATEMENT OF FACTS 6 ARGUMENT 10 RESPONSE TO APPELLANT'S FIRST ASSIGNMENT OF ERROR 10 The trial court erred by not taking judicial notice that the Library was protected by statutory immunity and that Library patrons are licensees. RESPONSE TO APPELLANT'S SECOND ASSIGNMENT OF ERROR 12 The trial court erred by conducting an evidentiary hearing. RESPONSE TO APPELLANT'S ASSIGNMENTS OF ERROR 14 The trial court erred by entering judgment in favor of the Defendant, Board of Trustees of the Fairfield County District Library, and against the Plaintiff, Robert A. Neinast. CONCLUSION 19 CERTIFICATE OF SERVICE 19 APPENDIX 20
TABLE OF AUTHORITIES
ASSIGNMENTS OF ERROR
FIRST ASSIGNMENT OF ERROR PRESENTED FOR
REVIEW BY APPELLANT
The trial court erred by not taking judicial notice that the Library was protected by statutory immunity and that Library patrons are licensees.
SECOND ASSIGNMENT OF ERROR PRESENTED FOR
REVIEW BY APPELLANT
The trial court erred by conducting an evidentiary hearing.
THIRD ASSIGNMENT OF ERROR PRESENTED FOR
REVIEW BY APPELLANT
The trial court erred by entering judgment in favor of the Defendant, Board of Trustees of the Fairfield County District Library, and against the Plaintiff, Robert A. Neinast.
ISSUES PRESENTED FOR REVIEW
As to Appellant's First Assignment of Error
1. Whether a trial court which specifically stated on the record that it would consider all applicable law in rendering its decision is required to identify and take judicial notice on the record of specific sections of the Ohio Revised Code?
As to Appellant's Second Assignment of Error
1. Whether when the Court of Appeals remands a case to the Court of Common Pleas for an evidentiary hearing, the Court of Common Pleas is required to follow that mandate?
As to Appellant's Third Assignment of Error 1. Whether there was sufficient evidence in the record for the Common Pleas Court to find that the Library's rule requiring that shoes be worn in the Library furthered the interests of public health and safety
2. Whether a party may reargue to the Court of Appeals on a second appeal, a decision of law that the Court of Appeals decided against that party in the same case on the first appeal?
STATEMENT OF THE CASE
This is the second time that this case has come before this Court and the procedural history and statement of facts upon the first appeal are set forth by this Court in paragraphs 1 through 4 of its first decision in this case. See Neinast v. Bd. of Trs. of Fairfield County Dist. Library, Fairfield App. No. 2010-CA-011, 2010-Ohio-5569, ¶1-4 ("Neinast I"). In Neinast I this Court addressed whether pro se Plaintiff-Appellant was barred by the doctrine of collateral estoppel from asserting certain claims against the Fairfield County District Library ("the Library") that he had previously litigated and lost against the Columbus Metropolitan Library. See Neinast v. Bd. of Trs. of the Columbus Metro. Library, 190 F. Supp. 2d 1040 (S.D. Ohio 2002); Neinast v. Bd. of Trs. of the Columbus Metro. Library, 346 F.3d 585 (6th Cir. 2003); and Neinast v. Bd. of Trs. of the Columbus Metro. Library, (2006), 165 Ohio App.3d 211, 2006-Ohio-287. This Court affirmed, in part, and reversed, in part, the judgment the of the Fairfield County Common Pleas Court granting summary judgment in favor of the Library and against the Plaintiff, Neinast I, at Par. 71, and remanded the case for an evidentiary hearing.
In Neinast I, the Plaintiff-Appellant filed a complaint in which he claimed that the rule promulgated by the Library prohibiting patrons from walking barefoot in the Library violated his personal liberties. As stated by this Court, the Plaintiff-Appellant's complaint requested that the trial court:
{¶30} "(A) Declare that the Board does not have the statutory authority under the law to make regulations requiring that patrons wear shoes in the Library.
{¶31 } "(B) Declare that the footwear rule infringes upon Mr. Neinast's personal liberty, is arbitrary and capricious, and does not bear a real and substantial relation to the health, safety, morals or general welfare of the public.
{¶32} "(C) Issue a permanent injunction preventing the Board of Trustees, the Director, or any other Library employee from enforcing any rule or regulation specifying that footwear must be worn in the Fairfield County District Library.
{¶33 } "(D) Awarded Plaintiff any other legal and equitable relief to which he is entitled."
Neinast I, at Pars. 30 – 33. In summarizing the claims of the Plaintiff-Appellant in Neinast I, this Court stated that:
Therefore, the issues sought to be barred by the doctrine of collateral estoppel are (1) appellant's claim of infringement of his personal liberty; (2) whether appellee's footwear rule has a real and substantial relation to the health, safety, morals, or general welfare of the public; and (3) the barring of the enforcement of appellee's footwear rule.
Neinast I, at Par. 34.
In its decision in Neinast I, this Court stated that:
{¶55} Although the authority to create the [footwear] rule is clearly established by case law as to its impact on personal liberties, the matter subject to hearing and fair debate and a day in court is this library's basis for the rule.
{¶56} We therefore determine because there is non-mutuality of parties, it was error to impose collateral estoppel. We remand this case to the trial court to determine if in fact appellee can establish reasons for the footwear rule that applies specifically to appellee. All other issues, including the authority to establish rules and the Federal Courts' holdings that a properly formulated rule does not violate personal freedoms, are resolved under applicable case law. (underlining added).
Neinast I, at Pars. 55 and 56. This Court went onto say that: "...we concur that public libraries have the authority to promulgate rules and regulations as to public health and safety. This does not mean that the authority sub judice is unfettered, but requires an examination of the relationship of the shoes requirement to health and public safety." Neinast I, at Par. 66. This Court then remanded the case to the Common Pleas Court for an evidentiary hearing.
After conducting an evidentiary hearing and reviewing the evidence the Common Pleas Court issued an Entry dated March 29, 2011. In that Entry the Court discussed the evidence presented at the hearing including that "Pathogens are found on surfaces, including floors, in public buildings" and can "... survive on surfaces for weeks or months, during which microbes, micro organisms, can carry diseases." See Entry of Common Pleas Court in attached Appendix. The Court went on to discuss that MRSA is a pathogen which causes infection and death in the United States each year and which cannot be eradicated with first line antibiotics. In its Entry, the Court further found that "Pathogens, including MRSA, can be found on the carpet and restroom floors in the Fairfield County District Library from vomit, feces, blood, saliva, and toilet water." The Court stated that other hazards, like staples and glass, are also found on the floor of the Fairfield County District Library. Based on the evidence, the Court found that "A person wearing shoes has a lower risk of acquiring and transmitting pathogens than a person who does not wear shoes; there is less chance of acquisition of diseases and cross transmittance of diseases if shoes are worn by humans." Based upon the evidence at the hearing, the Court concluded in its Entry that the Library had shown "by a preponderance of the evidence, that the footwear rule is related to public health and safety" and entered judgment in favor of the Library and against the Appellant.
STATEMENT OF FACTS
Based upon this Court's mandate in Neinast I, on remand the Common Pleas Court held an evidentiary hearing where there was extensive testimony about (1) the reasons why the Library enacted its rule requiring that shoes be worn in the Library ("the shoe rule"), (2) the hazards posed to patrons of the Fairfield County District Library were they allowed to walk barefoot on the Library floor, and (3) the potential liabilities that the Library could incur were barefoot patrons to be injured by objects or pathogens on the Library's floor.
At that hearing, held on March 8, 2011, the Common Pleas Court heard testimony from expert witness Professor Timothy Landers of The Ohio State University's College of Nursing, a Ph.D. in epidemiology and public health (Tr. 21, lines 21 – 23).1 Epidemiology is the study of "how diseases are transmitted among members of a population..." (Tr. 22 – 23, lines 24 – 3). Professor Landers' testimony covered, among other things, the manner in which barefoot Library patrons could become infected by pathogens found on the Library's floor, as well as how pathogens could be transported and spread by being carried on the feet of barefoot patrons. Professor Landers testified that his Ph.D. "was on the risk factors for transmission of antibiotic-resistant organisms and MRSA or methicilin-resistant Staph aureus in particular, and risk factors and prevention of those kinds of infections." (hereafter "MRSA") (Tr. 23 – 24, lines 20 – 2 and Tr. 30, lines 21 – 24).
Professor Landers testified that MRSA is a human pathogen found in the environment and difficult to treat with antibiotics. (Tr. 31, lines 1 – 16). He stated that it is responsible for a range of human infections (Tr. 31, lines 22 – 23) and kills approximately 17,000 Americans each year, which is more than are killed annually by HIV (Tr. 32, lines 3 – 7). MRSA exists on all kinds of surfaces (Tr. 32, lines 16 – 22) and is commonly found on the floors of public libraries (Tr. 36, lines 12– 15; Tr. 42, lines 14 – 20). It can survive on those surfaces for weeks to months and remain capable of spreading disease during that time (Tr. 38, lines 21 – 23).
Professor Landers testified that if a person was walking barefoot and had a cut or lesion or some other opening on their foot, that the MRSA germ could be transmitted to that person through such an opening in the skin of the foot. (Tr. 35, lines 19 – 24; Tr. 50 – 51, lines 18 – 4). In addition, one already carrying the MRSA pathogen could deposit it on a carpet through their bare feet (Tr. 37, lines 11 – 14) and thereby spread it. Professor Landers testified that a person is less likely to be exposed to the MRSA pathogen on carpets and floors by wearing shoes as opposed to by walking barefoot (Tr. 51 – 52, lines 5 – 18).
In addition to MRSA, Professor Landers testified that items sometimes found on library floors like vomit (Tr. 42 – 43, lines 21– 6), human feces (Tr. 43, lines 7– 10), and overflow of toilet water (Tr. 43, lines 15 – 21), to name a few, carry pathogens which are capable of being transmitted through cuts or openings in the skin of the feet (Tr. 43 – 44). He testified that a rule requiring individuals in a public facility to wear shoes would be a reasonable way to diminish or limit the spread of MRSA and other pathogens (Tr. 52 – 53, lines 19– 2). The Appellant testified and did not dispute the accuracy of the evidence presented by Professor Landers (Tr. 310, lines 15 – 19) and agreed that humans can catch the MRSA infection through breaches in their hands and feet (Tr. 310 –311, lines 20 – 4). The Appellant further conceded that employees of the Library are diverted from their general library duties when they are called upon to assist injured Library visitors (Tr. 311, lines 15 – 23).
The executive director of the Library testified that the Library is concerned with the health and safety of its patrons (Tr. 108, lines 1 – 7) and that the Library enacted a Code of Conduct to help insure a safer Library environment (Tr. 109; Tr. 129 – 130, lines 16 – 5) as well as to reduce the potential for lawsuits against the Library due to injuries (Tr. 130, lines 6 – 13). To the extent that library employees are required to assist injured Library patrons, they are not performing the library duties for which they were hired and the diversion of this time devoted to injured patrons, costs the Library their time and a portion of their compensation. (Tr. 120, lines 5 – 23).
The executive director testified that health and safety hazards found on the floor of the Library include tacks, staples and other sharp objects that are not always picked up (Tr. 109 – 110, lines 7 – 6). She also testified that there have been a number of occasions where bodily fluids have been found on the Library floor (Tr. 112, lines 17 – 22). In addition to blood, urine has been found on the Library floor (Tr. 116, lines 12 – 24), as well as vomit (Tr. 118, lines 5 – 9), overflows of toilet water (Tr. 119, lines 12 – 24), and spit out chewing tobacco (Tr. 119, lines 8 – 12). The "shoe rule" requiring that shoes be worn in the Library was enacted for the health and safety of the Library's patrons including preventing bare feet from being punctured or spreading germs (Tr. 133 – 134, lines 16 – 3).
Members of the Library's Board of Directors, called as witnesses by the Plaintiff-Appellant, testified that the Library's Code of Conduct, including its shoe rule, was adopted to help insure the health, safety, and welfare of the Library's patrons (Tr. 251, lines 8 – 19) as well as to avoid potentially costly liability (Tr. 246 – 247, lines 19 – 3; Tr. 269, lines 1– 8; Tr. 263 – 264, lines 19 – 1). The shoe rule was part of a comprehensive Code of Conduct designed to create a safe and usable facility (Tr. 270 – 271, lines 18 – 9).
On March 29, 2011 the Court issued its Entry, discussed above, granting judgment in favor of the Defendant-Appellee based upon the evidence at the hearing.
ARGUMENT
RESPONSE TO APPELLANT'S
FIRST ASSIGNMENT OF ERROR
Whether a trial court which specifically stated on the record that it would consider all applicable law in rendering its decision is required to identify and take judicial notice on the record of specific sections of the Ohio Revised Code?
The assertion by Plaintiff-Appellant that the Court improperly denied his motion to take judicial notice at the evidentiary hearing is groundless. The Plaintiff's Motion to Take Judicial Notice sought to have the trial court take judicial notice of specific portions of Revised Code Chapter 2744 which address whether a library is statutorily immune from liability. The Court found the Plaintiff's motion to take judicial notice of a specific section of existing law to be, in essence, superfluous because the Court was already bound to apply the applicable law. See Civil Rule 44. 1(A)(1) ("Judicial notice shall be taken of the rules of the supreme court of this state and of the decisional, constitutional and public statutory law of this state."). The Common Pleas Court made this clear (Tr. 12 – 13, lines 16 – 18):
THE COURT: Yes, I see it. I apologize.
Okay. The Court intends to apply the correct law, I'll say that. And what I've been asked to do is take judicial notice of law. At least Evidence Rule 201 applies to judicial notice and that applies to judicial notice of what are called adjudicative facts, not law.
So the Court is always obligated to apply the correct law. And again, I intend to do that. So I'll overrule the motion, but not -- I'm not necessarily saying -- by doing that, Mr. Neinast, I'm not necessarily saying that I'm not going to apply the law that you've cited there. I'm not saying I am or I'm not, because what I'm going to do is hear what has to be said by everybody, take the evidence, and then -- and also, the Court of Appeals has laid out what the law is and I'm to follow it. At least that's my interpretation of the Court of Appeals' opinion.
The purpose of this hearing is for the Court to find facts and then, as I see it, apply the law that the Court of Appeals has determined.
So, to that extent, I'll overrule the motion, but I'll let everybody argue what law they want to -- they think should be applied.
Far from indicating that it would not consider the law on statutory immunity cited by the Plaintiff-Appellant, the trial court clearly indicated that it was bound to apply applicable law in all events and that it was not ruling out consideration of the statutory immunity law cited by the Plaintiff-Appellant. The trial court did what it is required to do: consider all the applicable law. The fact that the trial court did not take specific notice of one portion of the law (Ohio Rev. Code § 2744) does not mean it was not considered by the Court. It merely means that it was unnecessary to take judicial notice of law that the trial court was already bound to apply. As such, the Appellant's First Assignment of Error should be overruled.
RESPONSE TO APPELLANT'S
SECOND ASSIGNMENT OF ERROR
Whether when the Court of Appeals remands a case to the Court of Common Pleas for an evidentiary hearing, the Court of Common Pleas is required to follow that mandate?
In its Second Assignment of Error, the Appellant argues that the Common Pleas Court should not have held an evidentiary hearing on remand. Again, this position finds no support in the record and is contrary to law.
This Court's mandate to the Common Pleas Court to hold such a hearing was clearly set forth in its decision in Neinast I.
Although the authority to create the [shoe] rule is clearly established by case law as to its impact on personal liberties, the matter subject to hearing and fair debate and a day in court is this library's basis for the rule.
We therefore determine that because there is non-mutuality of parties, it was error to impose collateral estoppel. We remand this case to the trial court to determine if in fact appellee can establish reasons for the footwear rule that applies specifically to appellee. All other issues, including the authority to establish rules and the Federal Courts' holdings that a properly formulated rule does not violate personal freedoms, are resolved under applicable case law. (underlining added)
Neinast I, at Pars. 55 and 56. Through its call for "a hearing" and "fair debate" and "a day in court", this Court's mandate for an evidentiary hearing on remand could not have been more clear. As if there was any question as to what it meant, this Court further elaborated that the purpose of the hearing was to see if "in fact" the Library "can establish" reasons for the footwear rule. Such facts could only be established through an evidentiary hearing. Notwithstanding the tortured reasoning of the Plaintiff-Appellant on this point, it is hard to conceive of words that would more clearly require an evidentiary hearing.
The Common Pleas Court had no authority to vary from this Court's mandate that it hold an evidentiary hearing. Revised Code Section 2505.39 makes clear that, upon remand, the Common Pleas Court was required to hold the evidentiary hearing that this Court mandated in Neinast I.
A court that reverses or affirms a final order, judgment, or decree of a lower court upon appeal on questions of law, shall not issue execution, but shall send a special mandate to the lower court for execution or further proceedings.
The court to which such mandate is sent shall proceed as if the final order, judgment, or decree had been rendered in it...
Revised Code Section 2505.39.
In Nolan v. Nolan, 11 Ohio St. 3d 1 (1984), the Supreme Court stated in its Syllabus that "Absent extraordinary circumstances, such as an intervening decision of the Supreme Court, an inferior court has no discretion to disregard the mandate of a superior court in a prior appeal in the same case. [citations omitted]." Id. In Nolan, the Supreme Court stated that a "trial court is without authority to extend or vary the mandate given [from the superior court]." Nolan, at 4. See also Congress Lake Club, et al. v. Lenschen S. Witte, et al. 2008-Ohio-6799, Par. 49 (5th Dist. 2008). As such, the evidentiary hearing held by the Common Pleas Court had nothing to do with the Library taking a "yet another bite of the apple" as the Appellant asserts (Appellant's Brief at 8), and everything to do with the requirement that the Common Pleas Court follow the mandate of this Court on remand. The assertion by the Plaintiff-Appellant that the Common Pleas Court could only examine evidence already in the record (Brief of Plaintiff-Appellant at 8) finds no support in this Court's decision in Neinast I, and is in clear contravention of this Court's mandate to hold an evidentiary hearing. As such, the Appellant's Second Assignment of Error should be overruled.
RESPONSE TO APPEALLANT'S
THIRD ASSIGNMENT OF ERROR
Whether there was sufficient evidence in the record for the Common Pleas Court to find that the Library's rule requiring that shoes be worn in the Library furthered the interests of public health and safety.
Perhaps weakest of all, is the Plaintiff-Appellant's assertion that the judgment of the Common Pleas Court was against the manifest weight of the evidence. The essence of the Appellant's argument is that because there are conflicts in the evidence, the judgment of the Common Pleas Court was against the manifest weight of the evidence. That, of course, has never been the standard for a "manifest weight' reversal and the Appellant cites no case authority in support of his manifest weight argument.
As shown above, there was substantial evidence from several witnesses that the Library's shoe rule was part of its comprehensive Code of Conduct, intended to further the health and safety of its patrons. Moreover, there was substantial testimony – both expert and lay of the conditions existing on the floor of the Library that might cause injury or disease to a barefoot patron that would be less likely to happen to one wearing shoes. These conditions included sharp objects found on the Library's floor as well as the existence of the dangerous MRSA pathogen, amongst others. The evidence from the Library's executive director and two of its board members showed that in enacting the shoe rule the Library was concerned with the health and safety of its patrons as well as in reducing potentially costly liability risks to itself. The Appellant conceded at the hearing that Professor Landers' expert testimony about MRSA and its damaging effects was accurate (Tr. 310, lines 15 – 19) and he further agreed with Professor Landers that humans can catch the MRSA infection through breaches in their hands and feet (Tr. 310 – 311, lines 20 – 4).
As stated by the Supreme Court in The C.E. Morris Co. v. Foley Construction Co., 54 Ohio St. 2d 279, 279 (1978) at Syllabus, "Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence." The decision of the Common Pleas Court more than met this standard.
Moreover, the law is clear that mere conflicting testimony does not warrant a "manifest weight" reversal and that a manifest weight reversal may only be granted in exceptional circumstances. This was made clear in State v. Townsend, 2010-Ohio-4417, (5th Dist. 2010), where this Court stated that "An Appellant is not entitled to a reversal on manifest weight grounds merely because inconsistent evidence was offered at trial." Townsend, at Par. 40. In support of that proposition, in Townsend this Court cited the opinion of the Tenth District Court of Appeals in State v. Campbell, 2008-Ohio-4831 (10th Dist. 2008), where the Tenth District stated that a party:
is not entitled to a reversal on manifest weight grounds merely because inconsistent evidence was presented at trial... The trier of fact is free to believe or disbelieve all or any of the testimony... The trier of fact is in the best position to take into account inconsistencies, along with the witnesses' manner and demeanor, and determine whether the witnesses' testimony is credible... Consequently, although an appellate court must act as a "thirteenth juror" when considering whether the manifest weight of the evidence requires reversal, it must also give great deference to the fact finder's determination of the witnesses' credibility... [citations omitted].
Campbell, supra, at Par. 23. In discussing the manifest weight standard in the context of a criminal case, the Tenth District Court of Appeals in State v. Taylor, 2011-Ohio-3162 (10th Dist. 2011) recently stated, that:
We reverse a conviction on manifest weight grounds for only the most "'exceptional case in which the evidence weighs heavily against the conviction... Moreover, "'it is inappropriate for a reviewing court to interfere with factual findings of the trier of fact * * * unless the reviewing court finds that a reasonable juror could not find the testimony of the witness to be credible.' [citations omitted]
Taylor, supra, at Par. 16. Although a criminal case, Taylor's reasoning applies as well to civil cases where a party seeks a manifest weight reversal. Even assuming that there was conflicting testimony in this case, the level of such a conflict does not come close to the level needed for a manifest weight reversal. Upon review of the record, there was more than ample evidence to support the judgment of the Common Pleas Court.
Whether a party may reargue to the Court of Appeals on a second appeal, a decision of law that the Court of Appeals decided against that party in the same case on the first appeal?
The Appellant also argues in its fourth "Issues Presented for Review", that "the shoe rule exceeds the legislatively-granted authority of the library". This issue was previously argued by the Appellant in Neinast I, and this Court ruled against the Appellant on this argument in its Neinast I decision ("...the authority to create the [footwear] rule is clearly established by case law as to its impact on personal liberties...", at Par. 55). In Neinast I, this Court made clear that "All other issues, including the authority to establish rules and the Federal Courts' holdings that a properly formulated footwear rule does not violate personal freedoms, are resolved under applicable case law." Neinast I, at Par 56. The Neinast I decision is the law of the case and, as such, the Appellant should not be permitted to reargue those claims on this second appeal. See Nolan v. Nolan, 11 Ohio St. 3d 1 (1984); C&W Asset Acquisition v. Forster, 2009-Ohio-4247, Par. 33 (5th Dist. 2009). Accordingly, the argument that the Library does not have the authority to enact such a rule has been addressed and resolved in this case and should not be considered by this Court on this second appeal.
The Appellant's final point — that the Common Pleas Court did not follow the instructions of this Court in the conduct of the hearing — is unsupported and baseless. This Court's remand mandate to the Common Pleas Court was "to determine if in fact appellee can establish reasons for the footwear rule that apply specifically to appellee." Neinast I, at Par. 56. A review of the hearing transcript shows that that is precisely what the trial court did.
The Appellant complains that the trial court did not conduct an "examination of the relationship of the shoes requirement to health and public safety." Appellant's Brief at 18. This assertion, too, is belied both by the Entry of the Common Pleas Court which recites the link between the evidence and the shoe rule, and by the evidence in the record referenced in that Common Pleas decision.
The trial court's Entry recites in some detail the scientific and other evidence that was presented at the trial, including the fact that "Pathogens, including MRSA, can be found on carpet and restroom floors in the Fairfield County District Library, from vomit, feces, blood, saliva, and toilet water." In addition, the trial court's decision recited its finding that pathogens deposited on carpeting and other flooring can enter a person's body through cuts and lesions on body surfaces, including through the feet. Significantly, the Court found that "A person wearing shoes has a lower risk of acquiring and transmitting pathogens than a person who does not wear shoes; there is less chance of acquisition of diseases and cross transmittance of diseases if shoes are worn by humans." Based upon that, and other evidence, the Common Pleas Court found that "the footwear rule is related to public health and public safety."
It would be difficult to find a more straightforward examination of the relationship between the shoe rule and public health and safety than the one described above. The Court found evidence of pathogens and other hazards on the Library's floor. It found evidence that those who wear shoes are both less likely to acquire, and less likely to transmit, those pathogens. The relationship between the shoe rule and public health and safety was clearly demonstrated.
Moreover, even assuming arguendo that there was merit to Appellant's argument that the trial court did not conduct a proper "examination" of the evidence, the law is well settled that:
An appellate court shall affirm a trial court's judgment that is legally correct on other grounds, that is, one that achieves the right result for the wrong reason, because such error is not prejudicial.
State v. Roberts, 2006-Ohio-5018 (5th Dist. 2006), Par 31. Based on the totality of the evidence, there can be no doubt that the trial court made the correct decision here. As such, the Appellant's Third Assignment of Error should be overruled.
CONCLUSION
The trial court appropriately followed the mandate of this Court on remand, properly conducted the required evidentiary hearing, and applied the appropriate law. As such, the Appellant's Assignments of Error find no support in the record or in the law and should be overruled in their totality.
Respectfully submitted,
/s/ Jason M. Dolin
Jason M. Dolin (0041820
Assistant Prosecuting Attorney
Fairfield County, Ohio
Attorney for Appellee
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing Appellee Board of Trustees of the Fairfield County District Library was served upon Robert A. Neinast, Appellant Pro Se, 8617 Ashford Lane, Pickerington, Ohio, 43147, by ordinary U.S. Mail, postage prepaid, this 12th day of July, 2011.
Respectfully submitted,
/s/ Jason M. Dolin
Jason M. Dolin (0041820
Assistant Prosecuting Attorney
Fairfield County, Ohio
Attorney for Appellee
APPENDIX
Footnotes:
1. The Court found Professor Landers to be an expert in the field of epidemiology. (Tr. 27 – 28, lines 20 – 5). [Back]