[Cite as Sanborn v. Univ. of Cincinnati , 2023

- Ohio

- 2657.]

IN TH E COURT OF CLAIMS OF OHIO

{¶1} Plaintiff asserts a ne gligen ce claim for inju ries she sustained on July 28, 2 01 8

when she fell wh ile re turning to her ve hicle after she and her famil y attend ed a soccer

match a t d efendant ’ s Nippert Stadium

. The case was bifurcated and the issue of liabilit y

was tried before a magistrate on June 20, 2023. In addition to p laintiff, d efendant ’ s

Direc tor of F ac i lities, Grounds, Movin g, and Trans portati on

, Eli zabeth Rains, an d Senior

Construction Administr ator, Doug Newell , tes tified at trial. Several photographs , ma r ked

as joint exhibits, were a dm itted into evidence. For the followi ng reasons, the magistra t e

recommends judgment in defendant ’ s favor.

Fin dings of Fact

{¶2} On July 28, 201 8

, p laintiff attended a soccer match on d efendant’s campus

with her husband and four children

. W hile walking to the p ark ing g arage after the game

,

p lain tiff f el l and injured her left leg after she le ft the sidewalk to cut through a grassy

, hilly

,

and unlit tree grove

. Defendant ’ s college of business was un der c on struction and

adjacent to the area as well. However, a fence e nclosed the entire constru ctio n zo n e and

signs were present to detour pedestr ians around the construction

. Plaintiff ’ s fall occurred

in an area outside of this con struction zone , where no con struction activity h ad taken

place. CA SIE SANBO RN

Plaintiff

v.

UNIVERSITY OF CINCINNATI

Defendant Case No. 2022

- 00222JD

Magistrate Scott Sheets

DECISION OF THE MAGISTRATECase No. 2022

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- 2

- DECISION

{¶3} Plaintiff lef t the soccer ve nue at approximately 9:30 or 9 :45; i t was dark.

P laintiff and her family walk ed around the fenced

- off con struction area

, following the

sidewalk to the left dep icted in Exhibit C

, tow ar d the ir parked car

. As dep icted in Exhibit

J, lights lined the sid e walk

. P laintiff , while ca rryi n g her 4

- year

- old child, follow ed her

husband off the sidewalk to cut through a n adjacent dar k grassy area that, in addition to

being unlit, contained hills and several large trees

.

{¶4} A s plaintiff descended one of the hills, which she approximated as 3

- 4 fe et

high, plaintiff ’ s left leg and foot got caught in a grass covered hole large enough to en gulf

her entire fo ot

. No pictures of the hole were offere d at trial and plaintiff did not t estify to

its exac t dimension s or any ot her physical characteristics . H owever, p laintiff testified that

she di d no t see the hole before stepping into it and that , as grass concealed it , she did

not believe that she would have been able to see it even in d aylight

. Plaintiff ’ s l eft le g

eventuall y required surgery.

{¶5} Plaintiff fe ll in the area encompassed within the re d circle in Exhibit A , afte r

depar ting the c urv ed sidewalk near the bottom of the circle

. Exhibits B

- 1 and B

- 2 depict

the area during the daytime from ground level

. Exhibit J is an e levated picture of the are a

fr om a n adjacent building

. It depicts the area on J uly 28 , 2018

, at 9:46 p .m. P laintiff ’ s fall

occurred somewhere in the dark group of trees near the center of th is picture tha t are

between the partially cons tructed business c ollege at the top and the curvy sidewalk that

runs alon g the tree s ’ left side.

{¶6} Elizabeth Rains, d efendant’s Director of Facilities, Grounds, Moving and

Transportation

, oversee s maintenance of d efendant’s grounds

. S he explained that th e

grassy, mounded are a where p laintiff fell is a tree grove in te nde d to prov ide a n atur al

aesthetic to defendant ’ s ca mpus and is not inte nd ed for ped estrian traffic

. M ounds were

inten tionally place d in the tree grove and accessibl e sidewal ks surro und the tree grove t o

discour age pedestrian t rave l and to pre vent “ cow paths ” caused by foot traffic through

natural areas

. T he sidewalks are lit

. However, there are no warning signs in the tree

grove where plaintiff fell and defendant was a ware that pedestrians traversed this area.

{¶7} Ms. Rains is notified of all re pairs to d efendant’s ground s as well as reported

injuries that occur on and/ or are related to grounds. She has access to the work orde r

system where repairs are recorde d

. Ms. Rains received no reports of any injur ies in th eCase No. 2022

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- DECISION

area wher e plaintiff fell befo re July 28, 2018

. S he could locate no record of any damage

or work in the area leading up to plaintiff ’ s injury.

{¶8} Grounds crew employees tra verse campus on a daily basis performing the ir

vario us job duties and report haza rds and n eeded repairs

. Other staf f

, as well as students

and vistiors

, can also report h azar ds on campus

. Additionally, there are enviornmental

health and safety employees who per for m daily “ walkabouts

, ” inspectin g defendant ’ s

campus for poss ible hazards. Rains also personally per form s a w alkabout once a week.

The se walkabouts are no t limited to sidewalks

.

Conclusions of Law

{¶9} T o prevail on a claim for negligence

, plaintiff must prove by a pre ponderance

of t he ev ide nce that (1) the defendan t owed the plai n tiff a duty, (2) the defend ant breached

that duty, an d (3) the breach of the duty proximatel y caused the plaintiff’ s injury.” Jenkins

v. Ohio Dep t

. of Rehab & Corr., 10th Dist. No. 12AP

- 787, 2013

- Ohio

- 5106, ¶ 6

. It is wel l

established that a prepondera n c e of th e evidence “ ‘ means evide nce that is more

prob a ble, more persuas ive, or of great e r p robati v e val ue. ’ ” Bro thers v. Morrone

- O’Keefe

De v. Co., L LC, 10 th Dist. Franklin No. 06AP

- 7 13, 2 007

- Ohio

- 1942, ¶ 49 , quot ing M anogg

v. Stickle

, 5th Dist. Licking N O . 9 9CA 56, 1 999 Ohio A pp. L EXIS 6 3 22 (Dec. 29, 1 999).

{¶10} Under Ohio law, t he duty o w ed by an owner or occupier of premises

generally depends o n whether t he injured pe rson is an invitee, li censee, or trespasser.

Glado n v. Greater Cleveland R egi onal Transit Au t

h.

, 75 Ohio St.3d 312, 315

, 662 N.E.2d

287 (1996)

. Though seemingly not in dispute, the magistrate finds tha t plaintiff was an

invitee on July 28, 2018

. See Brown v . C le veland Ba seball Co. , 15 8 O h io St. 1 , 10 6

N. E. 2 d 632 (1952). A n ow ner or occupier of p remises ge nerally owes invitees “a duty of

ordinary care in maintaining the pre mises in a reasona bl y safe condition and has t he duty

t o warn i ts invitees of laten t or hidden dangers.” Armst rong v. Best Bu

y Co

., Inc ., 99 Ohio

St.3d 79 , 2003

- Ohio

- 2573 , 788 N.E.2d 1088 , ¶ 5

.

{¶11} In order “ to establish that the owner or occupier failed to exercise ordinary

care, the invitee must establish that: (1) the owner of the prem ises or his agent was

respon sible for the h azar d o f which the invitee has complained; (2) at l east one of such

persons had act ual knowledge of the hazard and neglected to give adequate notice of itsCase No. 2022

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- DECISION

existence or to remove it promptly; or (3) the hazard exi sted for a sufficient length of time

to jus tify th e inference that the failure to warn against it or remove it was attributabl e to a

·lack of ordinary care. ” Price v. United Dairy Farmers

, Inc., 10th Dist. Franklin No. 04AP

83, 2004

- O hio

- 3392, ¶ 6. Indee d , i f defendant failed “ to co nduct a reas ona ble ins pection

of the premi ses

, [ it ] will be charg ed with constructive knowledge o f any latent defect which

[it] would have discovered had [it] conducted the reasonable inspection ” and it “ may face

liability for fai ling to warn the invitee o f the latent de fect or otherwise make the premises

reasonably saf e

. ” Rowe v. Pseekos

, 10 th Dist. Franklin No. 13AP

- 889, 2014

- Ohio

- 2024,

¶ 7. However, a landowner ’s duty is to “ undertake reasonable inspections, no t to inspect

everyt hing th a t might conceiv ably cause inju ry

. ” (E mphasis sic. ) Aldam e n v. Sunburst

USA, Inc

., 1 0 th Dist. Fra nklin No. 08AP

- 235, 2008

- Ohio

- 5071, ¶ 1 7

, quoting Tark any v

.

Bd. of Tr ustees o f Ohio State Un iv.

, 1 0th Dist. Fr anklin No. 90AP

- 1398, 1991 Ohio Ap p.

LEXIS 2648, 5 (June 4, 199 1). M oreover, “a l and owner who undertakes an inspection is

not h eld to a 100 percent success rat e, if the inspection was re asonable under the

cir cumstances. ” Rowe at ¶ 8

.

D ec isi o n

{¶12} Bas ed on the predicat ive facts set forth

, supra , the magistrate makes the

following add itional factual findings as well as his recomm end ation for judgment to the

court

.

{¶13} A t trial

, p laintiff conceded that defendant lacke d actual notice

. T he

magistrate also find s that pla intiff failed to prove by the g reater weight of the evidence

that defendant had const ructive no tice

. Plaintiff presente d no ev idence as to the leng th

o f time that the hole e xisted. In addit ion, t here had b een no hazards d is covered or

reported and n o repairs in the tree grove b efore plaintiff ’s accident

. Thus

, no

circumstance s existed that would have imparted notice to de fe ndant of a general problem

wit h h oles o r other tripping hazard s in th e area.

{¶14} T here i s also no evidence that n earby construction somehow imparted

const ructive notice

. Mr. Newell tes tified that the fence separated all construction activ ityCase No. 2022

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- DECISION

from areas ou ts ide the fence and that no cons tr uct ion ac tivity took pl ace in the tree grove

where pla intiff fell. Plaintiff presented no evidence that con st ruction ac tivity caused or

contributed to the hole in which she fell

.

{¶15} Moreover, the magistrate find s p laintiff failed to prove by the g reater w eight

of the evidence that defendant faile d t o conduct r easonable inspection s, which might also

have impart ed construc tive notice

. Defendant presented evidence establishing that, in

addition to reports from employees who pe rform daily grounds ’ work

, there are designated

e nvironmental health and saf ety e mployees who perform da ily wa lkabo uts looking for

hazards

. Ms. Rains also walks the c ampu s on a w e ekly basis

. The magistrate als o note s

that pla intiff testified th at grass c ompletely covered the hole th at caused her fall

. Thus,

the magistrate finds that the hole would have been discovered only through a very close

inspection of the e xact area where plaintiff fell

. This i s simply not what a reasonable

inspection or t he duty of ordinary care requires. T he evidence es tabl ishes tha t several of

defend ant ’ s emp loyees undertake regular and f requent visual inspections and the

magistrate finds that defendant ’ s visual inspection routi ne is reasona ble under t he

circumstances

. See Tar kany at 6 ( A routine vis ual insp ection can s atisfy the duty of

ordin ary ca re

. ) ; Rowe at ¶ 9

- 11 ( A cursory, visu a l inspection does not breach the duty to

conduct a reasonable inspection

. )

{¶16} Conseque ntly , l acking notice of the hole that caused plaintiff ’ s f all , defendant

did not breach its d u ty of ordin ary care despite the absence of warning signs in the tree

grove. T he hills and darkness themselves served as a n obvious warning of their inherent

hazards

. Moreover, p laintiff did n ot trip on a tree root or on o ne of the hil ls in the t ree

grov e ; she stepp ed into a concealed h ole

. If defendant had notice of th e hole , then it

wo uld have had a duty to remedy the condition or wa rn of it

, but it lacked notice and,

therefore

, it breached no duty.

{¶17} For the forego ing rea sons , the ma gistra te reco mmend s ju dgme nt in

d efenda nt ’ s favo r.

{¶18} A party may file w ritt en objections to the magi strate’s dec ision within 14 days

of the filin g of the d

ecis ion, whet

her or not the court has adopted the decision during that

14

- day period as per

mitte d by Civ

.R. 53(D)(4)(e)(i). If any party timely files objections

,

any othe r par

ty may also f

i le obj e ctio ns not later than ten day s a fter the first ob

j ectionsCase No. 2022

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a re f iled. A party shall not assign as error on appeal the court’s adoption of any factual

findi ng or le gal conclusion, whe t her or not specifica l

ly designated as a finding of f ac t or

conclu s ion of law under Civ.R. 53(D)(3)(a)( ii) , unless the part

y timely a nd s

pecifical ly

objects to that factual finding or legal conclusio n within 14 days of the f iling of t he decision,

as requir e d by Civ.R. 53(D)(3) (

b).

SCOTT SHEETS

Magistrate

Filed June 27 , 2023

Sent to S.C. R e porter 7/ 31 /23