[Cite as Yoak v. Univ. Hosps. Health Sys., Inc., 2022-Ohio-3550.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

GERALD WAYNE YOAK, :

Plaintiff-Appellant, :

No. 111224

v. :

UNIVERSITY HOSPITALS HEALTH :

SYSTEMS, INC., ET AL.,

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,

 AND REMANDED

RELEASED AND JOURNALIZED: October 6, 2022

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-20-935769

Appearances:

DWORKEN & BERNSTEIN CO., L.P.A., Patrick T. 

Murphy, and Christian D. Foisy, for appellant. 

WESTON HURD LLP, and Daniel A. Richards, for 

appellees. 

LISA B. FORBES, J.:

Gerald Wayne Yoak (“Yoak”) appeals from the trial court’s order

granting summary judgment to University Hospitals Health System, Inc., and 

University Hospitals Geauga Medical Center (collectively “UH”) in this trip-and-fall
case. After reviewing the facts of the case and pertinent law, we affirm the lower 

court’s judgment in part, reverse in part, and remand for further proceedings 

consistent with this opinion.

I. Facts and Procedural History

UH operates a physical therapy and rehabilitation center (“UH rehab 

center”) located at the Geauga YMCA (the “YMCA”) in Chardon. The building that 

houses the UH rehab center and the YMCA is owned by the YMCA. The YMCA leases 

space to UH for the UH rehab center. The UH rehab center is “separated by a set of 

glass doors from the [YMCA] exercise facilities * * *.” 

On August 13, 2018, Yoak was exercising at the YMCA when he 

“tripped over a board that was * * * between the glass doors separating the [UH 

rehab center] from the YMCA exercise facilities.” This board was placed between 

the two doors by a UH employee “to keep them from shutting and locking.” After 

tripping over the board, Yoak allegedly fell and suffered injuries to his left knee and 

ankle. 

On August 10, 2020, Yoak filed a complaint against UH and the 

YMCA. Yoak did not delineate precisely what claims he asserted in his complaint, 

although they all relate to his tripping over the board and falling at the YMCA. The 

complaint alleges, in part, the following:

• Yoak was a “business invitee” at the YMCA;

• The “board placed between the glass doors constituted a 

dangerous and hidden condition at the premises”;
• “Defendants negligently maintained the facility, failed to warn 

[Yoak] of the dangerous condition and permitted a nuisance to 

remain on the premises”;

• “Defendants violated their duty to ‘[k]eep all common areas of 

the premises in a safe and sanitary condition,’ in violation of

[R.C.] 5321.04(A)(3), and was negligent per se”;

• Yoak “tripped over a board that was placed by [a UH] employee 

* * * between the glass doors separating the [UH rehab center] 

from the YMCA exercise facilities.”

On August 27, 2021, Yoak dismissed his claims against the YMCA, 

leaving UH as the sole defendant.

On January 18, 2022, the trial court granted UH’s summary judgment 

motion, finding that Yoak “cannot establish that [UH] owed him any actionable 

duty” to establish a premises-liability claim; Yoak failed to plead common-law 

negligence in his complaint; R.C. 5321.04(A)(3), which governs the obligations of a 

landlord, does not apply to UH in the case at hand because UH did not own the 

property; and because Yoak did not “set forth an actionable duty owed by UH * * *, 

his nuisance claim fails as a matter of law.”

It is from this order that Yoak now appeals, raising one assignment of 

error: “The trial court committed reversible error in granting defendants’ motion 

for summary judgment.”

II. Law and Analysis

A. Summary Judgment Standard of Review

Appellate review of a decision granting summary judgment is de 

novo. Barley v. Fitcheard, 8th Dist. Cuyahoga No. 91458, 2008-Ohio-6159, ¶ 12. 
Pursuant to Civ.R. 56(C), the party seeking summary judgment must prove that 

(1) there is no genuine issue of material fact; (2) they are entitled to judgment as a 

matter of law; and (3) reasonable minds can come to but one conclusion and that 

conclusion is adverse to the nonmoving party. Dresher v. Burt, 75 Ohio St.3d 280, 

662 N.E.2d 264 (1996).

B. Notice Pleading Under Civ.R. 8

In granting summary judgment in the case at hand, the trial court 

found that Yoak’s complaint “is devoid of * * * any allegations in regard to common 

law negligence against” UH. We disagree.

Pursuant to Civ.R. 8(A), a complaint “shall contain * * * a short and 

plain statement of the claim showing that the party is entitled to relief * * *.” The 

Ohio Supreme Court has held that a “party is not required to plead the legal theory 

of recovery or the consequences which naturally flow by operation of the law from 

the legal relationship of the parties.” Ill. Controls v. Langham, 70 Ohio St.3d 512, 

526, 639 N.E.2d 771 (1994). Rather, “the party asserting a claim must give sufficient 

operative facts to provide fair notice to the defender of the claim.” Dottore v. Vorys, 

Sater, Seymour & Pease, L.L.P., 8th Dist. Cuyahoga No. 98861, 2014-Ohio-25, ¶ 113. 

“[T]o establish actionable negligence, the plaintiff must show the 

existence of a duty, a breach of the duty, and an injury proximately resulting 

therefrom.” Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 

677, 680, 693 N.E.2d 271 (1998).
Yoak’s complaint alleges that he “tripped over a board that was placed 

by [a UH] employee * * * between the glass doors separating the [UH rehab center] 

from the YMCA exercise facilities,” resulting in injury to his knee and ankle. We find 

that these allegations are sufficient to put UH on notice that Yoak is claiming 

common-law negligence. See Alexander v. Culp, 124 Ohio App.3d 13, 18, 705 N.E.2d 

378 (8th Dist.1997) (“Although appellant did not plead common law negligence, it 

is sufficient that the facts of the complaint assert the elements of common law 

negligence.”).

C. Common-Law Negligence

1. Duty

Having found that Yoak pled a negligence claim, we turn to whether 

this claim survives UH’s motion for summary judgment. We start by determining 

whether UH owed Yoak a duty under common-law negligence jurisprudence. This 

court has held that a “defendant’s duty to a plaintiff depends upon the relationship 

between the parties and the foreseeability of injury.” Thayer v. B.L. Bldg. & 

Remodeling, L.L.C., 8th Dist. Cuyahoga No. 105950, 2018-Ohio-1197, ¶ 24. “The 

test for foreseeability is whether a reasonably prudent person would have 

anticipated that an injury was likely to result from the performance or 

nonperformance of an act.” Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 

77, 472 N.E.2d 707 (1984).

“[A]ctors engaging in conduct that creates a risk to others have a duty 

to exercise reasonable care to avoid causing physical harm.” Restatement of the Law 
3d, Torts, Section 7 (2010). “The minimum standard of care expected under any 

circumstance is to exercise that degree of care and caution that an ordinary careful 

and prudent person would exercise under similar circumstances.” Cromer v. 

Children’s Hosp. Med. Ctr. of Akron, 142 Ohio St.3d 257, 2015-Ohio-229, 29 N.E.3d 

921, ¶ 27. 

In the case at hand, the relationship between UH and Yoak is based 

on a UH employee creating the allegedly dangerous condition that caused injury to 

Yoak. UH physical-therapy assistant Jeanine Tamburro (“Tamburro”) testified in 

deposition that she “was responsible for putting the board in the door” and that Yoak 

“said he had just tripped and fell on it.” According to Tamburro, “probably less than 

half an hour passed” between when she placed the board between the two doors and 

when Yoak tripped on it. Tamburro “put it in the door so that it keeps the door from 

shutting.” Additionally, injury is foreseeable if someone creates a tripping hazard 

by stopping a door from shutting without using reasonable care. 

Accordingly, we find that UH had a duty to act with reasonable care 

when stopping the door from shutting.

2. Breach

We turn to whether UH breached its duty. Tamburro testified that 

the board was “2 inches thick by approximately 5 or 6 inches high by about 6 inches 

long.” This specific board was used as a “step-over” block during physical therapy, 

and according to Tamburro, “we also used it to block the door.” Tamburro testified 

that on “an average of twice a week for three years * * * the entire staff [of UH 
employees] that worked at the Y” stopped the door from closing and locking using

this particular piece of wood. 

Tamburro testified that she uses something called “transfer boards” 

during physical therapy, but she did not stop the door from closing using a transfer 

board. A transfer board is 20- to 24-inches long, and, according to Tamburro, “it 

creates a tripping hazard immediately” if used to stop a door from shutting.

Yoak testified in his deposition that the board he tripped over was “a 

one by six” that was “32 to 36 inches” long. Yoak further testified that 

“12 to 16 inches” of this board was protruding from the doorway into the YMCA. 

According to Yoak, had he looked straight down when he was walking, he could have 

seen the board. 

Upon review, we find that there are genuine issues of material fact as 

to whether UH breached its duty. The evidence conflicts as to the size of the board 

that was used to stop the door from closing. Specifically, Tamburro testified that it 

was approximately six-inches long and Yoak testified that it was 32- to 36-inches 

long. Compare Texler, 81 Ohio St.3d at 681, 693 N.E.2d 271 (finding that “the 

bucket used to prop open the door contained protruding concrete blocks that could 

cause serious injuries” and “adequate evidence in the record * * * supports the * * * 

finding that” the defendant “was one hundred percent negligent in the manner by 

which the bucket of concrete propped open the door * * *”).
3. Causation and Harm

Turning to the final two elements of a negligence claim, we find that 

the issues of causation and harm were not argued or addressed by either party on 

summary judgment. Because we find that the trial court erred by determining that 

Yoak “cannot establish that * * * UH * * * owed him any actionable duty,” and thus, 

summary judgment was improperly granted, we need not address causation and 

harm for the first time on appeal. 

4. Open and Obvious

On appeal, the parties raise the issue of an open-and-obvious danger, 

which bars a landowner or occupier’s duty “to persons entering those premises 

regarding dangers that are open and obvious.” Armstrong v. Best Buy Co., 99 Ohio 

St.3d 79, 2003-Ohio-2573, 799 N.E.2d 1088, ¶ 5. Because UH is not an owner or 

occupier of the YMCA premises, which is where this alleged incident took place, the 

open-and-obvious doctrine does not “relieve [UH] of a duty of care * * *.” Thayer, 

8th Dist. Cuyahoga No. 105950, 2018-Ohio-1197, at ¶ 26.

While the open-and-obvious doctrine does not eliminate the duty of 

care in a common-law negligence action, “the open and obvious nature of a hazard 

may be relevant for other purposes in connection with a negligence claim.” Thayer

at ¶ 26. Specifically, a “plaintiff’s failure to protect himself or herself from an obvious 

hazard may constitute comparative negligence * * *.” Crumb v. LeafGuard by 

Beldon, Inc., 8th Dist. Cuyahoga No. 108321, 2020-Ohio-796, ¶ 36. “Issues of 

comparative negligence are for the jury to resolve unless the evidence is so 
compelling that reasonable minds can reach but one conclusion.” Simmers v. 

Bentley Constr. Co., 64 Ohio St.3d 642, 646, 597 N.E.2d 504 (1992).

Upon review, we find that reasonable minds can reach different 

conclusions on whether Yoak was negligent, and if so, to what extent. 

D. Premises Liability

“In Ohio, the status of the person who enters upon the land of another 

* * * continues to define the scope of the legal duty that the landowner owes the 

entrant.” Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 

315, 662 N.E.2d 287 (1996). Traditionally, common law recognized three 

classifications of entrants: 1) trespasser; 2) licensee; and 3) invitee. Id.

It is undisputed that Yoak did not enter UH’s premises — specifically, 

the UH rehab center — on August 13, 2018. Yoak allegedly fell and was injured while 

on the YMCA’s premises. In other words, UH was not a “landowner” who owed a 

duty to an “entrant” in the case at hand. Therefore, we find that UH did not owe a 

duty to Yoak under premises liability law, and the court properly granted summary 

judgment to UH on this claim. 

E. Nuisance

This court has held that a “qualified nuisance involves a lawful act ‘so 

negligently or carelessly done as to create a potential and unreasonable risk of harm, 

which in due course results in injury to another.’” Temple v. Fence One, Inc., 8th 

Dist. Cuyahoga No. 85703, 2005-Ohio-6628, ¶ 41, quoting Taylor v. Cincinnati, 143 

Ohio St. 426, 436, 55 N.E.2d 724 (1943). In other words, for a plaintiff to succeed 
on a qualified nuisance claim, he or she “must show that the [defendant] breached 

an applicable duty of care and the breach proximately caused [the plaintiff’s] 

injuries.” Hardin v. Naughton, 8th Dist. Cuyahoga No. 98645, 2013-Ohio-1549, 

¶ 22.

In the case at hand, the trial court granted summary judgment to UH 

on Yoak’s nuisance claim based on a finding that, as a matter of law, “the allegations 

of the Complaint do not set forth an actionable duty owed by * * * UH * * * to [Yoak].” 

Because we reversed the trial court on this point and found that the allegations of 

the complaint contain a cause of action for common-law negligence, we likewise find 

that the complaint alleges a cause of action for qualified nuisance. Furthermore, for 

the same reason that Yoak’s negligence claim survives summary judgment, Yoak’s 

claim for qualified nuisance survives summary judgment.

F. Negligence Per Se

The trial court granted summary judgment to UH on Yoak’s 

negligence per se claim, finding that he “concedes that R.C. 5321.0[4](A)(3) is not 

applicable to * * * UH * * * in this matter because [the] YMCA, not * * * UH * * *, 

was the property owner.” It does not appear that Yoak is appealing the granting of 

summary judgment on this claim; therefore, we will not review this aspect of the 

trial court’s journal entry.

G. Conclusion

The trial court erred by granting summary judgment in favor of UH 

on Yoak’s negligence and qualified-nuisance claims, and his sole assignment of error 
is sustained in part. The trial court’s journal entry is affirmed in part and reversed 

in part. Summary judgment remains as to the premises-liability and negligence per 

se causes of action. Summary judgment is reversed as to the common-law 

negligence and qualified-nuisance claims. Case remanded for proceedings 

consistent with this opinion.

Judgment affirmed in part, reversed in part, and remanded for 

proceedings consistent with this sentence.

It is ordered that appellees and appellant share costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment 

into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

LISA B. FORBES, JUDGE

EILEEN A. GALLAGHER, P.J., and

MICHELLE J. SHEEHAN, J., CONCUR