[Cite as Foster v. Ohio Dept. of Natural Resources, 2010-Ohio-2314.]

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

SHANNON FOSTER 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF NATURAL RESOURCES 

 Defendant 

Case No. 2009-07547-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Shannon Foster, filed this action against defendant, Department 

of Natural Resources (DNR), alleging she suffered personal injury on some unspecified 

date at some unspecified location. In her complaint, plaintiff recorded, “[w]hile getting 

up from a picnic table, a rock under my (left) foot rolled causing me to fall.” Plaintiff 

claimed injury to her left buttock, lower back, left hip, left elbow, abdominal area, and 

diaphragm area as a direct result of the trip and fall. Plaintiff requested damage 

recovery in the amount of $1,951.81. Plaintiff did submit a copy of a medical bill from 

Wooster Community Hospital in the amount of $1,951.81 listing a treatment service date 

of August 2, 2009. Designated payers on the medical treatment bill are this court (The 

Court of Claims of Ohio) and plaintiff’s insurers Summa Care/Medicare. Plaintiff denied 

receiving any payment from any collateral source for medical expenses she incurred. 

The filing fee was paid. 

{¶ 2} Defendant filed an investigation report disputing the allegations in 

plaintiff’s complaint based on the fact plaintiff did not produce any documentation to 

verify the location of the alleged personal injury incident or any corroborating statement 
or report. Furthermore, defendant pointed out the medical bill plaintiff submitted which 

represents the amount of damages claimed lists “Non-Covered Charges” amounting to 

$0.00 (zero and no/100 dollars). Defendant maintained plaintiff did not claim any 

damages that were not covered by a collateral source. 

{¶ 3} Defendant contended plaintiff failed to state an actionable claim against 

DNR. Defendant cited the following case law to support its position: 

{¶ 4} “The elements for an actionable claim of negligence are (1) a duty owed 

by the defendant toward the plaintiff; (2) a breach of that duty, and (3) an injury 

proximately caused by that breach. However, Defendant is not an insurer of Plaintiff’s 

safety. See Holdshoe v. Whinery (1968), 14 Ohio St. 2d 134. Further, there is no duty 

upon Defendant to protect Plaintiffs from dangers that were known to them or which 

were so obvious and apparent to them that they could reasonably be expected to 

discover them and protect themselves against them. Sidle v. Humphrey (1968), 13 

Ohio St. 2d 45.” 

{¶ 5} Defendant advised plaintiff did not provide any evidence to establish her 

injuries occurred on DNR premises, were proximately caused by negligence on the part 

of DNR, or that she suffered economic damages not covered by a collateral source. 

Defendant argued plaintiff failed to prove any element necessary to prevail on a 

negligence claim. 

{¶ 6} Plaintiff filed a response noting: “I was stradling [sic] the picnic table 

bench. I stood up. My left foot came to settle on a rock that moved. I lost my balance 

and fell.” Plaintiff did not provide a location of the picnic table. Plaintiff did not produce 

any photographs depicting the picnic table and premises condition around the picnic 

table. Plaintiff did not offer any supporting documentation regarding her injury incident 

such as accident reports or witness statements. 

{¶ 7} For plaintiff to prevail on a claim of negligence, she must prove, by a 

preponderance of the evidence, that defendant owed her a duty, that it breached that 

duty, and that the breach proximately caused her injuries. Armstrong v. Best Buy 

Company, Inc., 99 Ohio St. 3d 79, 2003-Ohio-2573,¶8 citing Menifee v. Ohio Welding 

Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707. Plaintiff 

has the burden of proving, by a preponderance of the evidence, that she suffered a loss 

and that this loss was proximately caused by defendant’s negligence. Barnum v. Ohio 
State University (1977), 76-0368-AD. However, “[i]t is the duty of a party on whom the 

burden of proof rests to produce evidence which furnishes a reasonable basis for 

sustaining his claim. If the evidence so produced furnishes only a basis for a choice 

among different possibilities as to any issue in the case, he fails to sustain such 

burden.” Paragraph three of the syllabus in Steven v. Indus. Comm. (1945), 145 Ohio 

St. 198, 30 O.O. 415, 61 N.E. 2d 198, approved and followed. 

{¶ 8} “If an injury is the natural and probable consequence of a negligent act 

and it is such as should have been foreseen in light of all the attending circumstances, 

the injury is then the proximate result of the negligence. It is not necessary that the 

defendant should have anticipated the particular injury. It is sufficient that his act is 

likely to result in an injury to someone.” Cascone v. Herb Kay Co. (1983), 6 Ohio St. 3d 

155, 160, 6 OBR 209, 451 N.E. 2d 815, quoting Neff Lumber Co. v. First National Bank 

of St. Clairsville, Admr. (1930), 122 Ohio St. 302, 309, 171 N.E. 327. This court, as trier 

of fact, determines questions of proximate causation. Shinaver v. Szymanski (1984), 14 

Ohio St. 3d 51, 14 OBR 446, 471 N.E. 2d 477. 

{¶ 9} Plaintiff has stated a claim grounded in premises liability. The duty owed 

by a property owner under premises liability depends upon the status of the injured 

plaintiff as an invitee, licensee, or trespasser. “In premises liability situations, the duty 

that an owner of land owes to individuals coming onto the property is determined by the 

relationship between the parties. Light v. Ohio University (1986), 28 Ohio St. 3d 66, 67, 

502 N.E. 2d 611, 613. The standard of care changes depending upon whether the 

entrant is characterized as an invitee, licensee or trespasser. Gladon v. Greater 

Cleveland Regional Transit Authority (1996), 75 Ohio St. 3d 312, 315, 662 N.E. 2d 287, 

291.” Morgan v. Gracely, 2006-Ohio-2344, ¶7. 

{¶ 10} For example, a premises owner typically owes a duty to invitees to 

exercise ordinary care in maintaining the premises in a reasonably safe condition, such 

that the invitee will not unreasonably or unnecessarily be exposed to danger. Paschal 

v. Rite Aid Pharmacy (1985), 18 Ohio St. 3d 45, 18 OBR 267, 480 N.E. 2d 474. The 

owner must warn invitees of latent or concealed dangers, if the owner knows or has 

reason to know of the hidden dangers, and invitees are expected to take reasonable 

precautions to avoid dangers that are patent or obvious. Brinkman v. Ross (1993), 68 

Ohio St. 3d 82, 1993 Ohio 72, 623 N.E. 2d 1175. 
{¶ 11} All claims involving premises liability contemplate a plaintiff verifying the 

location where the particular injury occurred in order to ascertain the owner of the 

premises and therefore, identify the proper party defendant. In the instant claim, plaintiff 

has persisted in failing to provide a location where her injury occurred other than to 

state she was injured at a “picnic table.” Without establishing DNR or another state 

entity as the owner of the premises where plaintiff was injured, this action cannot go 

forward. Plaintiff has failed to offer any evidence to prove defendant owned or 

maintained the premises where her injury incident occurred. Consequently, plaintiff’s 

claim is dismissed. 

 

 

 

 

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 

SHANNON FOSTER 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF NATURAL RESOURCES 

 Defendant 

Case No. 2009-07547-AD 

Deputy Clerk Daniel R. Borchert 

ENTRY OF ADMINISTRATIVE DETERMINATION
 Having considered all the evidence in the claim file and, for the reasons set forth 

in the memorandum decision filed concurrently herewith, plaintiff’s claim is DISMISSED 

without prejudice. Court costs are assessed against plaintiff. 

 

 ________________________________ 

 DANIEL R. BORCHERT 

 Deputy Clerk 

Entry cc: 

Shannon Foster Charles G. Rowan 

4353 E. Lincoln Way Department of Natural Resources 

Wooster, Ohio 44691 2045 Morse Road, Building D-3 

 Columbus, Ohio 43229-6693 

RDK/laa 

1/27 

Filed 2/25/10 

Sent to S.C. reporter 5/21/10