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Dolores Carlson v. Ohio Department of Transportation

November 17, 2011

DOLORES CARLSON, PLAINTIFF-APPELLANT,
v.
OHIO DEPARTMENT OF TRANSPORTATION, DEFENDANT-APPELLEE.



APPEAL from the Court of Claims of Ohio. (C.C. No. 2009-06834)

The opinion of the court was delivered by: Brown, J.

Cite as Carlson v. Ohio Dept. of Transp.,

(REGULAR CALENDAR)

DECISION

{¶1} Dolores Carlson, plaintiff-appellant, appeals from a judgment of the Court of Claims of Ohio, in which the court, pursuant to a bench trial, granted judgment in favor of the Ohio Department of Transportation ("ODOT"), defendant-appellee.

{¶2} On May 8, 2009, appellant was traveling with her daughter, Pamela Wilcox, in an automobile northbound on Interstate 75 in Hancock County, Ohio. The two decided to stop at a rest area. The rest area is comprised of restrooms, vending machines, and newspaper machines. ODOT maintains the restrooms and grounds, while the vending and newspaper machines are maintained by unrelated, non-governmental entities. While walking back to her vehicle after using the restroom facilities at the rest area, appellant fell on an uneven portion of the sidewalk in front of the restroom building and sustained injuries.

{¶3} On August 7, 2009, appellant filed a complaint against ODOT, alleging negligence in maintaining the sidewalk at the rest area. The issues of liability and damages were bifurcated, and a trial on liability only was held before the trial court on July 12, 2010. On January 25, 2011, the trial court issued a decision in favor of ODOT. Appellant appeals the judgment of the trial court, asserting the following assignments of error:

I. The Court of Claims erred as a matter of law when it classified the Plaintiff as a "licensee" under Ohio Law when she was on the premises of a Rest Area which provided financial gain to the State thereby providing her "invitee" protection.

II. That, in the event the Plaintiff was a "licensee[,"] the Court of Claims erred when it applied too strict a standard to the protection provided to the Plaintiff. The law requires that the Defendant warn of hazards it "knows" of while the Court required the Plaintiff to establish that the Defendant acted "wantonly" and/or "willfully[."]

{¶4} Appellant argues in her first assignment of error that the Court of Claims erred when it classified her as a "licensee" instead of an "invitee." In order to establish a negligence claim, appellant must show the existence of a duty, a breach of that duty, and an injury proximately resulting from the breach. Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 680, 1998-Ohio-602. The failure to prove any element is fatal to her negligence claim. Whiting v. Ohio Dept. of Mental Health (2001), 141 Ohio App.3d 198, 202.

{¶5} In cases of premises liability negligence, the scope of the duty owed to a visitor depends upon her status. Shump v. First Continental-Robinwood Assoc., 71 Ohio St.3d 414, 417, 1994-Ohio-427. In determining the duty of a property owner or occupier, Ohio adheres to the common-law classifications of invitee, licensee, and trespasser. Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315, 1996-Ohio- 137.

{¶6} In the present case, appellant contends she was an invitee, while the trial court found she was a licensee. An invitee is one who enters property by invitation and for the benefit of the property owner or occupier. Light v. Ohio Univ. (1986), 28 Ohio St.3d 66, 68. Thus, to be an invitee, one must establish that the premises owner received a tangible or economic benefit from the visit. See Roesch v. Warren Distrib./Fleet Eng. Research, 146 Ohio App.3d 648, 2000-Ohio-2694; McAllister v. Trumbull Properties Co. Ltd. Partnership (Feb. 11, 1994), 11th Dist. No. 93-T-4891; Wheeler v. Am. Legion Community Home Co., Inc. (June 28, 1991), 11th Dist. No. 90-A-1571. By contrast, a licensee is one who enters property with the permission or acquiescence of the owner or occupier and for the benefit of the individual instead of the owner or occupier. Provencher v. Ohio Dept. of Transp. (1990), 49 Ohio St.3d 265, 266.

{¶7} Appellant argues that she was an invitee because ODOT receives a financial and tangible benefit from rest area users through vending machine sales, newspaper sales, and safer roadways. We disagree. Several courts have addressed similar issues and have concluded that those members of the motoring public who stop at a facility solely to use the restroom facilities are licensees. In Mostyn v. CKE Restaurants, Inc., 6th Dist. No. WM-08-018, 2009-Ohio-2934, while en route from Ohio to New York traveling via the Ohio Turnpike, the appellant stopped at a turnpike travel plaza. The sole and undisputed purpose of this stop was for appellant to utilize the restroom facilities. Appellant tripped and fell on a floor mat while proceeding through a set of glass doors at the entryway of the plaza leading to a restaurant and the restroom facilities. The court of appeals concluded appellant was a licensee, finding that the record demonstrated that appellant had entered the premises purely to use the restroom facilities and had not entered the area of the incident for any business purpose beneficial to appellee.

{ΒΆ8} In Provencher, upon which the trial court relied, the plaintiff brought a negligence action against ODOT after she fell and fractured her right ankle while descending steps located at a rest area. The Supreme Court of Ohio rejected the plaintiff's argument that she had been invited to use the public rest area and that they were on the premises for purposes in which ODOT had a beneficial interest. The court indicated that the pivotal issue before it was the economic benefit received by ODOT. Id. at 266. The court found no conduct on the part of ODOT that justified persons in believing that the agency desired them to enter the land; thus, no invitation had been made. At most, the court found, ODOT's conduct constituted a willingness to permit entry if such persons desired to do so, and the entry provided no tangible benefit to ODOT. The court rejected the notion that the increased safety of Ohio's highways that results from highway travelers' use of the rest ...


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