[Cite as Preston v. Ohio State Univ. Med. Ctr., 2011-Ohio-3898.]

Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us

CYNTHIA D. PRESTON 

 Plaintiff 

 v. 

THE OHIO STATE UNIVERSITY MEDICAL CENTER 

 Defendant 

Case No. 2010-05676 

Judge Clark B. Weaver Sr. 

DECISION

{¶ 1} This case is sua sponte assigned to Judge Clark B. Weaver Sr. to conduct 

all proceedings necessary for decision in this matter. 

{¶ 2} On April 11, 2011, defendant filed a motion for summary judgment 

pursuant to Civ.R. 56. Plaintiff did not file a response. The motion is now before the 

court for a non-oral hearing. See Civ.R. 56 and L.C.C.R. 4. 

{¶ 3} Civ.R. 56(C) states, in part, as follows: 

{¶ 4} “Summary judgment shall be rendered forthwith if the pleadings, 

depositions, answers to interrogatories, written admissions, affidavits, transcripts of 

evidence, and written stipulations of fact, if any, timely filed in the action, show that 

there is no genuine issue as to any material fact and that the moving party is entitled to 

judgment as a matter of law. No evidence or stipulation may be considered except as 

stated in this rule. A summary judgment shall not be rendered unless it appears from 

the evidence or stipulation, and only from the evidence or stipulation, that reasonable 
minds can come to but one conclusion and that conclusion is adverse to the party 

against whom the motion for summary judgment is made, that party being entitled to 

have the evidence or stipulation construed most strongly in the party’s favor.” See also 

Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean 

United, Inc. (1977), 50 Ohio St.2d 317. 

{¶ 5} On April 1, 2008, plaintiff was admitted to defendant’s hospital for treatment 

of the condition of preeclampsia, which is high blood pressure during pregnancy. On 

April 3, 2008, plaintiff took a bath in Room 692 of the hospital. While attempting to exit 

the bathtub, plaintiff reached for the railing, which came loose from the wall, causing her 

to fall. Plaintiff alleges that she sustained permanent injuries to her head, neck, back, 

and legs as a result of defendant’s negligent maintenance of its premises. Plaintiff 

further alleges that as a result of defendant’s negligence, she gave birth to a premature 

baby with permanent disabilities on April 4, 2008. 

{¶ 6} In order for plaintiff to prevail upon her claim of negligence, she must prove 

by a preponderance of the evidence that defendant owed her a duty, that defendant’s 

acts or omissions resulted in a breach of that duty, and that the breach proximately 

caused her injuries. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 81, 2003-Ohio2573, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77. 

Under Ohio law, the duty owed by an owner or occupier of premises generally depends 

on whether the injured person is an invitee, licensee, or trespasser. Gladon v. Greater 

Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315, 1996-Ohio-137. Plaintiff was 

on defendant’s premises for purposes that would classify her as an invitee, defined as a 

person who comes “upon the premises of another, by invitation, express or implied, for 

some purpose which is beneficial to the owner.” Baldauf v. Kent State Univ. (1988), 49 

Ohio App.3d 46, 47. An owner or occupier of premises owes its invitees “a duty of 

ordinary care in maintaining the premises in a reasonably safe condition * * *.” 

Armstrong, supra, at 80. 

{¶ 7} “The duty of ordinary care includes maintaining the premises in a 

reasonably safe condition and inspecting the premises to discover hidden or latent 

dangers. Perry v. Eastgreen Realty Co. (1978), 53 Ohio St.2d 51, 52. The owner of 

premises is liable to an invitee for injuries caused by latent defects when the owner 
knows, or in the exercise of ordinary care should have known, about the hazard for a 

time sufficient to correct the defect. Presley v. Norwood (1973), 36 Ohio St.2d 29, 31; 

see, also, Restatement of the Law 2d, Torts (1965) 215, Section 343.” Tarkany v. 

Board of Trustees of Ohio State Univ. (June 4, 1991), Franklin App. No. 90AP-1398. 

The distinction between actual and constructive notice is in the manner in which notice 

is obtained rather than in the amount of information obtained. Whenever the trier of fact 

is entitled to find from competent evidence that information was personally 

communicated to or received by the party, the notice is actual. Constructive notice is 

that notice which the law regards as sufficient to give notice and is regarded as a 

substitute for actual notice. In re Estate of Fahle (1950), 90 Ohio App. 195, 197. 

{¶ 8} In support of its motion, defendant submitted the affidavit of Paul Willis, who 

avers as follows: 

{¶ 9} “1. I am currently employed as a full time employee by The Ohio State 

University Medical Center (‘OSUMC’) as a Zone Technician 3 in the facilities services 

department. During April 2008, I worked this same position; 

{¶ 10} “2. I have personal knowledge, and I am competent to testify to the facts 

contained in this Affidavit; 

{¶ 11} “3. During April, 2008, my assignment included the 6th Floor of Doan Hall, 

which included room 692. Neither I nor my department had notice of the bathtub railing 

being loose in Doan Hall Room 692 prior to Cynthia Preston’s alleged fall on April 3, 

2008; 

{¶ 12} “4. The OSUMC maintenance department regularly conducts inspections 

of its bathtub railings, like the one in Doan Hall, Room 692, whenever doing other 

maintenance projects in the bathrooms. In addition, the cleaning staff and nursing staff 

are frequently cleaning or preparing the bathtubs for patient use. Whenever a 

maintenance problem is discovered, the cleaning staff or nursing staff is to notify the 

maintenance staff. I am not aware of any evidence that someone on the cleaning or 

nursing staffs saw the loose railing but never notified the maintenance department; 

{¶ 13} “5. On April 4, 2008, I responded to the maintenance request and fixed 

the loose railing on [sic] in Room 692. The bathtub railings are attached to the wall with 
four anchors. I discovered that one anchor was loose, and that part of the railing did 

move a couple of inches. However, the rest of the railing did not budge from the wall.” 

{¶ 14} In addition, defendant submitted the affidavits of Karen Stone, patient care 

assistant, Darla Miller, R.N., and Karen Phelps, R.N., who all aver that they were 

assigned to care for plaintiff at various times during her stay at defendant’s hospital from 

April 3-4, 2008, but did not have notice that the bathtub railing in Doan Hall Room 692 

may have been loose prior to plaintiff’s fall. 

{¶ 15} Civ.R. 56(E) states, in part: “When a motion for summary judgment is 

made and supported as provided in this rule, an adverse party may not rest upon the 

mere allegations or denials of the party’s pleadings, but the party’s response, by 

affidavit or as otherwise provided in this rule, must set forth specific facts showing that 

there is a genuine issue for trial. If the party does not so respond, summary judgment, if 

appropriate, shall be entered against the party.” 

{¶ 16} Plaintiff did not file a response to defendant’s motion. Construing the 

evidence most strongly in plaintiff’s favor, the court finds that defendant had neither 

constructive nor actual notice of the defective condition of the bathtub railing prior to 

plaintiff’s fall. Therefore, the court finds that there exists no genuine issue as to any 

material fact and that defendant is entitled to judgment as a matter of law. Inasmuch as 

the court has found that defendant did not commit a breach of its duty of care owed to 

plaintiff, the issue of proximate cause of injury to either plaintiff or to her baby is not 

before the court. Based upon the foregoing, defendant’s motion for summary judgment 

shall be granted and judgment shall be rendered in favor of defendant. 
Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us 

CYNTHIA D. PRESTON 

 Plaintiff 

 v. 

THE OHIO STATE UNIVERSITY MEDICAL CENTER 

 Defendant 

Case No. 2010-05676 

Judge Clark B. Weaver Sr. 

JUDGMENT ENTRY

 A non-oral hearing was conducted in this case upon defendant’s motion for 

summary judgment. For the reasons set forth in the decision filed concurrently 

herewith, defendant’s motion for summary judgment is GRANTED and judgment is 

rendered in favor of defendant. Court costs are assessed against plaintiff. The clerk 

shall serve upon all parties notice of this judgment and its date of entry upon the journal. 

 _____________________________________ 

 CLARK B. WEAVER SR. 

 Judge 

cc: 

 
Daniel R. Forsythe 

Karl W. Schedler 

Assistant Attorneys General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Cynthia D. Preston 

3117 Easthaven Drive South 

Columbus, Ohio 43232 

HTS/cmd

Filed July 1, 2011 

To S.C. reporter August 2, 2011