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Thayer v. B.L. Building & Remodeling, L.L.C.

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 29, 2018


          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-863454

          ATTORNEYS FOR APPELLANTS Michael D. Shroge Plevin & Gallucci Co., L.P.A. Paul W. Flowers Paul W. Flowers Co., L.P.A.

          ATTORNEYS FOR APPELLEES Colleen A. Mountcastle Gary L. Nicholson Todd M. Haemmerle Gallagher Sharp L.L.P.

          BEFORE: E.A. Gallagher, A.J., Stewart, J., and Laster Mays, J.



         {¶1} Plaintiffs-appellants Suzanne Thayer ("Thayer") and Mark Thayer (collectively, "appellants") appeal from the trial court's order granting summary judgment in favor of defendant-appellee B.L. Building & Remodeling, L.L.C. ("B.L. Building") on their negligence claim arising out of a trip-and-fall accident. For the reasons that follow, we reverse the trial court's judgment and remand the matter for further proceedings.

         Factual and Procedural Background

         {¶2} On June 18, 2014, Thayer, a registered nurse, was working the night shift (7:00 p.m. to 7:00 a.m.) in the labor and delivery department of St. John Medical Center ("St. John's") in Westlake, Ohio. She began working at St. John in May 2014 as a PRN nurse, working 12 to 24 hours a week on average, after working 20 years as a labor and delivery nurse at Mercy Hospital f.k.a. Lorain Community Hospital.

         {¶3} At some point during her shift, Thayer and another nurse, Kristin Mulica, went into the kitchenette area of the labor and delivery floor to get a beverage and ice for a patient's husband. The kitchenette contained a refrigerator, ice machine, coffee machine, microwave and a table and chairs where patients' families could sit and wait. At the time, the kitchenette was being remodeled and was under construction. Thayer and Mulica testified that the nurses had not been given prior notice of the construction and that they first learned the kitchenette was being remodeled when they entered the area that evening.

          {¶4} B.L. Building was the contractor hired to remodel the kitchenette. Prior to the construction, the kitchenette had been open. Brian Landon, the company's owner and president, testified that his company had been installing new railings for St. John's when the hospital's director handed him a sketch and asked if he could close off the kitchenette to make it more private. Landon testified that the project involved constructing a partial wall and installing a three-foot-by-seven-foot door and a three-foot-by-six-foot window.[1] He testified that B.L. Building used drywall, metal studs and a metal sill to create a "pictured framed window opening." The hospital supplied the door.

         {¶5} On the evening of June 18, 2014, the opening for the window had been partially constructed, but glass had not yet been placed in the window opening.[2] The base of the partially constructed window opening was approximately 12 inches from the floor.

         {¶6} Thayer testified that she was conversing with Mulica and Jennifer Campbell, M.D., an OB hospitalist at St. John's, as she entered the kitchenette. Thayer testified that she was "not sure" how she entered the kitchenette but stated that she "did not walk over anything." Mulica testified that when she and Thayer entered the kitchenette, they were "focused on what the patient asked for, and we were getting her that item, so that was our focus" and that they did not discuss the construction. Campbell, who was in the kitchenette getting ice water, testified that she entered the kitchenette by walking through the door.[3]

         {¶7} After she got the beverage and ice, Thayer exited the kitchenette. Thayer testified that she was talking to Mulica and Campbell, looking "[s]traight ahead, " when she tripped on "an eight-inch piece of wood" and fell through the partially constructed window opening. Thayer testified that she struck both of her shins against the base of the window opening, hit both of her forearms on the "outside of the molding" and that her body then "flung to the left side of the pane" as she went through the window opening. Thayer testified that she caught herself and stayed on her feet albeit "[w]ith some kind of body contortion."

         {¶8} Mulica witnessed the incident. Mulica testified that she was in the kitchenette when she saw Thayer trip over the "hump" at the bottom of the wall where the window was going to be installed. Mulica testified that Thayer fell through the window opening but "caught herself, " hitting her shoulder against the window jamb and "skinning up" her knees and elbows. Campbell did not see Thayer trip and fall, i.e., Campbell testified that Thayer fell to her right, out of her field of vision, but saw her immediately after the fall.

          {¶9} Campbell testified that there was nothing precluding anyone from using the door to enter or exit the kitchenette, that the portion of the wall between the floor and the window opening was in plain view with nothing obstructing it and that she had not seen anyone else attempt to exit the kitchenette through the partially constructed window opening. Mulica testified that the area was well lit.

         {¶10} Thayer, Mulica and Campbell each testified that, at the time Thayer fell, there was no caution tape, cones or any other "markings" or warnings to indicate that the area was under construction or to block off access to the partially constructed window. Nurse manager Julianne Cribbs similarly testified that when she viewed the ...

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