Beckman v. Playhouse Square Found. , 2014 Ohio 2651 ( 2014 )

[Cite as Beckman v. Playhouse Square Found., 2014-Ohio-2651.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100627
DAVID BECKMAN
PLAINTIFF-APPELLANT
vs.
PLAYHOUSE SQUARE FOUNDATION
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-12-795456
BEFORE: Celebrezze, P.J., S. Gallagher, J., and Stewart, J.
RELEASED AND JOURNALIZED: June 19, 2014
ATTORNEY FOR APPELLANT
Frank P. Giaimo
Two Commerce Park Square
24400 Chagrin Boulevard
Suite 300
Beachwood, Ohio 44122
ATTORNEY FOR APPELLEE
Robert P. Lynch
Park Center Plaza II
Suite 450
6150 Oak Tree Boulevard
Independence, Ohio 44131
FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Appellant, David Beckman, brings this appeal of the decision of the trial
court granting summary judgment in favor of appellee, the Playhouse Square Foundation,
ending Beckman’s negligence action. Beckman argues he did not assume the risk of
injury, and he disputes the open and obvious nature of that risk. After a thorough review
of the record and law, we affirm the decision of the trial court.
I. Factual and Procedural History
{¶2} As part of their orientation and training, volunteers for the theaters operated
by the Playhouse Square Foundation, called Red Coats, must participate in guest
evacuation training. In part, the training requires each Red Coat to review the evacuation
routes as well as view a demonstration of how to operate the Palace Theater’s
counterbalanced fire escape stairways. These consist of external metal stairways
attached to the building that end at the second story. A metal stairway that is suspended
off the street some ten feet bridges the gap to the sidewalk. To lower the stairway, a
person must step out onto the first few steps, using body weight to cause the stairway to
lower, often with a jarring clang on the sidewalk below. Volunteers are instructed to
hold onto the handrails and brace themselves for the impact. The volunteers are shown
how to operate the stairway by the person leading their training, and then volunteers may
elect to try it for themselves.
{¶3} On April 2, 2011, the Playhouse Square Foundation was conducting training
for its volunteers. David Beckman, a veteran Red Coat, volunteered to operate the
mechanical staircase facing Chester Avenue on East 17th Street. Scott Wright, house
manager, was leading the instruction on that staircase that day. He demonstrated how the
staircase operated and, according to Beckman, instructed the volunteers to place both
hands on the railing on one side of the stairs. Beckman fell and sustained serious injury
when he was operating the stairway, he claims, as a result of these instructions.
{¶4} Jeffrey Grubb, another Red Coat who witnessed Beckman’s fall, heard the
instructions given by Wright. Grubb remembered the instructions differently: “Put our
hands on the inside of the rails, walk out to a point where it starts to come down, stop, and
lean back and flex your knees and let the stairs come all the way down.” Grubb
elaborated that volunteers were warned not to wrap their hands around the rails because
you could rap your knuckles on the other stairs as the stairway descended. He also noted
further instructions advising that if you could not reach both rails “you can put both hands
on one rail, preferably the one next to the building[,]” where there was not a risk that your
fingers would get pinched. The difference in the instructions is the positioning of the
hands of the person operating the stairway. Beckman remembered the instruction he
received: “I was told that on that particular fire escape that I would have to hang on with
both hands on the railing closest, close to the wall with my body in what I would call a
twisting precarious position. And then, you know, go down the stairs.”
{¶5} Grubb stated he was the first volunteer to use the stairs that day. After
successfully activating the stairs and descending, Grubb watched other volunteers from
the street where he witnessed Beckman’s fall. Beckman stated he was the first volunteer
to go down the steps, although this contradicts Grubb’s account. The fire escape was
functioning appropriately when Grubb observed Beckman climb out onto the stairway
with both hands gripping the railing closest to the building where there is no danger of
pinched fingers. As the stairs started to come down, Grubb observed that Beckman was
leaning too far forward. When the stairs hit the sidewalk, Grubb saw Beckman lose his
balance and fall down the stairs.
{¶6} Wright also recalled Beckman’s descent. He described Beckman as
continuing to move after the stairs had begun to descend. He also remembered that
Beckman leaned forward instead of backward as the stairs began to drop. Wright saw that
Beckman was in trouble and ran to the descending staircase to try to grab it and slow it
down. Despite this, Beckman fell when the steps hit the sidewalk and tumbled the rest of
the way to the ground below.
{¶7} On November 13, 2012, Beckman filed a complaint against the Playhouse
Square Foundation for negligence and premises liability. An answer was filed and
depositions were taken. On August 12, 2013, the Playhouse Square Foundation filed a
motion for summary judgment. There, it argued that Beckman assumed the risk of
traversing the fire escape, that he knew the risks, and that any hazard was open and
obvious. Beckman opposed summary judgment on September 11, 2013. He argued that
his fall resulted from the unsafe manner in which he was instructed to grip the hand
railing. On October 21, 2013, the trial court granted the Playhouse Square Foundation’s
motion for summary judgment. The trial court found:
There is no genuine issue of fact that plaintiff cannot establish that
defendant breached a duty owed to plaintiff. Plaintiff claims to have
received instructions to use an unsafe grip during a fire escape drill which
resulted in his fall. The evidence does not demonstrate how the
instructions were negligent or how the grip used was unsafe. The manager
who gave the instructions demonstrated use of the fire escape with the
allegedly unsafe grip without incident. Further, plaintiff had received
training and participated in fire escape drills for several years prior to his
fall. Plaintiff was aware or should have been aware that falling was a risk
involved in the fire escape drill. Defendant did not [owe] plaintiff a duty to
warn plaintiff of such a known risk. See Armstrong v. Best Buy Co., 990
Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088; see also Briere v.
Lathrop Co., 22 Ohio St.2d 166, 175, 258 N.E.2d 597 (1970). Therefore,
the court finds there is no genuine issue of fact that plaintiff cannot
establish a prima facie case of negligence against defendant. Defendant is
entitled to summary judgment.
{¶8} Beckman appeals from this decision assigning one error:
I. The trial court erred in grating the defendant’s motion for summary
judgment.
II. Law and Analysis
{¶9} This court reviews the grant of summary judgment de novo. Brown v. Scioto
Cty. Commrs., 87 Ohio App.3d 704, 622 N.E.2d 1153 (4th Dist.1993).
Civ.R. 56(C) specifically provides that before summary judgment may be
granted, it must be determined that: (1) No genuine issue as to any material
fact remains to be litigated; (2) the moving party is entitled to judgment as a
matter of law; and (3) it appears from the evidence that reasonable minds
can come to but one conclusion, and viewing such evidence most strongly
in favor of the party against whom the motion for summary judgment is
made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).
{¶10} It is well established that the party seeking summary judgment bears the
burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Mitseff v. Wheeler, 38
Ohio St.3d 112, 115, 526 N.E.2d 798 (1988). In Dresher v. Burt, 75 Ohio St.3d 280, 662
N.E.2d 264 (1996), the Ohio Supreme Court modified and clarified the summary
judgment standard as applied in Wing v. Anchor Media, Ltd. of Texas, 59 Ohio St.3d 108,
570 N.E.2d 1095 (1991). Under Dresher, “the moving party bears the initial
responsibility of informing the trial court of the basis for the motion, and identifying those
portions of the record which demonstrate the absence of a genuine issue of fact on a
material element of the nonmoving party’s claim.” (Emphasis sic.) Id. at 296. The
nonmoving party has a reciprocal burden of specificity and cannot rest on mere
allegations or denials in the pleadings. Id. at 293. The nonmoving party must set forth
“specific facts” by the means listed in Civ.R. 56(C) showing that a genuine issue for trial
exists. Id.
{¶11} A negligence action requires a plaintiff to demonstrate that “(1) the
defendant owed a duty of care to the plaintiff, (2) the defendant breached that duty, and
(3) the defendant’s breach proximately caused the plaintiff to be injured.” Lang v. Holly
Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d 120, ¶ 10, citing
Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, 857 N.E.2d 1195, ¶ 21, citing
Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984).
“When the alleged negligence occurs in the premises-liability context, the applicable duty
is determined by the relationship between the landowner and the plaintiff.” Gladon v.
Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315, 662 N.E.2d 287(1996).
{¶12} Here, Beckman and other Red Coats are invitees. “Invitees are persons
who rightfully come upon the premises of another by invitation, express or implied, for
some purpose which is beneficial to the owner.” Id. at 315. Therefore, the duty owed is
that of ordinary care, which means that a landowner must exercise ordinary care and
maintain the premises in a safe condition. Lang at ¶ 10.
{¶13} The Ohio Supreme Court further elaborated that “[w]here a danger is open
and obvious, a landowner owes no duty of care to individuals lawfully on the premises.”
Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, at
the syllabus, citing Sidle v. Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589 (1968). “[T]he
owner or occupier may reasonably expect that persons entering the premises will discover
those dangers and take appropriate measures to protect themselves.” Simmers v. Bentley
Constr. Co., 64 Ohio St.3d 642, 644, 597 N.E.2d 504 (1992). Therefore, when a plaintiff
is injured by an open and obvious danger, summary judgment is generally appropriate
because the duty of care necessary to establish negligence does not exist as a matter of
law. Armstrong at ¶ 15; Lang at ¶ 11.
{¶14} Here, the open-and-obvious doctrine is related to assumption of the risk.
“The open-and-obvious doctrine is based upon the invitee’s knowledge of the danger.
Sidle. ‘If an invitee knows of a dangerous condition, he will be held to have assumed the
risk of injury from that condition.’” Venable v. Greater Friendship Baptist Church, 7th
Dist. Mahoning No. 09 MA 79, 2010-Ohio-3159, ¶ 15, quoting Davenport v. M/I
Schottenstein Homes, Inc., 96 Ohio App.3d 237, 240, 644 N.E.2d 1074 (1st Dist.1993),
citing Cyr v. Bergstrom Paper Co., 3 Ohio App.3d 299, 444 N.E.2d 1349 (2d Dist.1982).
{¶15} In the present case, there is no evidence that the mechanical stairway was
malfunctioning. In his deposition, Beckman acknowledged that it was functioning as
others had in the past with which he had experience. This was his seventh or eighth time
going through the evacuation training. Beckman only takes issue with the instructions
given to him prior to his accident. He claims that he was instructed to use a
less-than-safe grip on the railing and that this caused his fall.
{¶16} Beckman stated that he followed the instructions given by Wright and acted
exactly as Wright had instructed and as Beckman had observed Wright act when Wright
lowered the stairway. Beckman acknowledged in his deposition that the activity was
dangerous and that there was a risk he could fall. He ignored and assumed those risks
when he volunteered to participate in an activity he knew beforehand was dangerous.
{¶17} Beckman claims that he was not able to fully appreciate the risk involved
because he only was given instructions moments before he tried to operate the stairway.
Had he known that he would be placing himself in what he described as a precarious,
twisted position, he would not have volunteered. However, nothing stopped him from
declining to participate in the activity after receiving instructions. At that point, he did or
should have fully comprehended the risks involved and the inherently dangerous nature of
the activity. Everything he experienced when he walked out onto the stairway was
demonstrated to him beforehand by Wright according to Beckman’s own deposition
testimony.
{¶18} This case is distinguishable from other cases where courts have held that
assumption of the risk is not a valid defense in the employment context. Cremeans v.
Willmar Henderson Mfg. Co., 57 Ohio St.3d 145, 566 N.E.2d 1203 (1991). Even though
Red Coats are unpaid volunteers, the situation is so similar to the employment context
that case law in the area could apply. In Cremeans, the Ohio Supreme Court ruled that
assumption of the risk was not a valid defense in the employment context because “an
employee does not voluntarily or unreasonably assume the risk of injury which occurs in
the course of his or her employment when he or she must encounter that risk in the
normal performance of his or her required job duties and responsibilities.” Id. at 149.
{¶19} The distinguishing factor in the present case is that Red Coats are not
required to participate in the activity that resulted in Beckman’s fall. Lowering the
stairway is voluntary.
{¶20} Grubb testified that during this portion of the evacuation training, Wright
“asked for volunteers, if they want to, you know, practice to see how it works.” (Grubb
Depo. 7.) Wright testified during his deposition that each volunteer must complete
evacuation training. The Red Coats are shown all evacuation routes. He stated,
“whoever is leading the tour demonstrates [operation of the fire escape stairway]. Then
we ask the volunteers if they would like to try it.” (Grubb Depo. 22.) When describing
the process, Wright stated, “I lower the escape first. Then I go up and I describe what to
do as you’re descending the escape, and then I ask for volunteers to go up. That’s how it
progresses.” (Wright Depo. 27.) Later, he provided, “[a]gain, we ask for volunteers.”
(Wright Depo. 28.)
{¶21} Appellant’s attorney made certain what was being asked: “Scott, forgive
me, but I’m slowing down a little bit and taking this very carefully. You indicated that
you asked for volunteers. A certain number of volunteers went up the escape to a
landing I take it.” (Wright Depo. 34.) When asked, “[d]id Playhouse Square require
each Red Coat to go down the fire escape * * * for the training?” Beckman testified that it
did, but admitted that one could opt out of going down the fire escape. (Beckman Depo.
80.) Therefore, going down the fire escape is not a condition of volunteering.
{¶22} In Venable, 7th Dist. Mahoning No. 09 MA 79, 2010-Ohio-3159, the
Seventh District found that a roofer assumed the open and obvious risk of climbing a
ladder that had been constructed by church members. The Venable court affirmed the
application of the open-and-obvious doctrine and held there was no hidden condition not
perceived by the plaintiff: “The ladder and its dangers were not hidden from appellant.
He saw it, he held it, he considered its dangers and ignored them.” Id. at ¶ 20.
{¶23} The same is true here. Beckman saw the operation of the stairway in the
same manner that he stated he utilized. He was fully aware of the risks and assumed
them when he stepped out onto the stairway. Beckman argues that the instructions given
were negligent. He cites to nothing other than his own testimony, which indicates that
gripping railings on either side of the stairs is plainly superior to the instructions he was
given. Whether a certain positioning of the hands is better or worse when operating the
stairway is not the standard for a negligence claim. By Beckman’s own admission, the
stairway can be operated safely with either grip because he observed Wright use this grip
to operate the stairs without incident.
{¶24} Beckman likens this case to McGuire v. Univ. of Akron, Ct. of Cl. No.
2010-08900-AD, 2011-Ohio-2733. There, a dance student slipped and fell on a slippery
area of a dance floor after being instructed to practice there. The Ohio Court of Claims
determined that the dance student did not voluntarily assume the risk of injury inherent in
the activity based on attendant circumstances, or those circumstances that would divert
the attention of the injured person to such a degree that they would enhance the danger of
a defect and contribute to the cause of the injury. Id. at ¶ 10, quoting Barrett v. Ent.
Rent-A-Car Co., 10th Dist. Franklin No. 03AP-1118, 2004-Ohio-4646. The slippery
spot on the floor, which was known to the teacher and the premises owner, constituted a
condition more dangerous than the surrounding floor. Further, the instructions given to
practice a complex dance routine in an area described as more slippery than the remainder
of the studio floor distracted the injured dancer from awareness of the slippery condition.
{¶25} The same cannot be said of the present case. There was no enhanced
dangerous or latent condition known to the Playhouse Square Foundation from which
appellant was distracted by the instructions given by Wright. Further, the instructions
were not negligent. Appellant was fully advised of the dangers and witnessed a
demonstration of the operation of the stairway. Therefore, the Playhouse Square
Foundation or its employees did not breach a duty owed to Beckman or prevent him from
fully appreciating the risks involved prior to engaging in a dangerous activity.
{¶26} Here, Beckman admitted he understood that operating the stairway was
inherently dangerous. He further did or should have fully understood the risks after
receiving instructions from Wright prior to operating the stairway. Beckman’s argument
that he did not fully appreciate the risk, and therefore liability should attach, is not
supported. See LaCourse v. Fleitz, 28 Ohio St.3d 209, 210, 503 N.E.2d 159 (1986)
(“Liability only attaches when an owner has ‘superior knowledge of the particular danger
which caused the injury’ as an ‘invitee may not reasonably be expected to protect himself
from a risk he cannot fully appreciate’”).
III. Conclusion
{¶27} The dangers posed by lowering the stairway were made fully apparent to
Beckman by demonstration and instruction. Beckman’s argument that gripping the hand
railing only on one side of the stairway was less than safe is not supported in the record.
The voluntary operation of the stairway constituted an open and obvious danger to which
Beckman was fully informed.
{¶28} Judgment affirmed.
It is ordered that appellee recover from appellant 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.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
MELODY J. STEWART, J., CONCUR