594 N.E.2d 181
No. 89-13077.Court of Claims of Ohio.
Decided March 4, 1991.
Mark C. Cavanaugh, for plaintiff.
Lee I. Fisher, Attorney General, and Velda K. Hofacker,
Assistant Attorney General, for defendant.
RUSSELL LEACH, Judge.
On October 29, 1990, this matter came to trial before a referee of this court. On February 5, 1991, the referee issued a report, attached hereto as an appendix, wherein he recommended judgment for defendant.
Civ.R. 53 states that “[a] party may, within fourteen days of the filing of the report, serve and file written objections to the referee’s report.” Neither party has filed an objection to said report.
Upon review of the record and the referee’s report, it is the court’s finding that the referee was correct in his analysis of the issues and application of the law. Accordingly, this court adopts the referee’s report and recommendation as its own. Therefore, judgment is rendered for 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.
Judgment accordingly.
Appendix
JOHN A. ANNARINO, Referee.
On October 12, 1989, plaintiff, Theodore N. Callas, filed this action against the defendant, University of Akron, alleging it was negligent in permitting a nonnatural accumulation of a foreign substance to form on the floor near the entranceway of Shrank Hall. The plaintiff maintains that he slipped and fell on the foreign substance resulting in injury to his body. The foreign substance was later identified as water.
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Defendant denies negligence in the care and maintenance of the floor near the entranceway of Shrank Hall. On October 29, 1990, this action came on for trial before this referee. Counsel for the parties presented evidence, testimony and arguments as to the facts and issues involved herein. Upon consideration of the record, the referee renders the following findings of fact and conclusions of law.
Plaintiff was a student at the University of Akron at the time of the accident. On November 21, 1987, plaintiff was walking to Shrank Hall where he was to work on a program at the computer lab. During the previous day, there had been a significant snowfall on the defendant’s campus. On the day of the accident there was an accumulation of slush and ice outside the three doors to Shrank Hall where plaintiff intended to enter the building. Immediately inside the doors of the building were two mats located on the floor. The mats were situated approximately two to three feet from the doors, leaving a gap of uncovered floor in between the doors and the mats. The evidence at trial showed that this two to three foot gap was wet from tracked-in snow and slush. The evidence at trial also demonstrated that placing the mats apart from each other rather than overlapping them was required to avoid pedestrians from tripping. Plaintiff entered the building on that day through the center doors. Plaintiff testified that as he stepped inside the doorway, his right foot immediately started sliding on the wet floor in the area not covered by the floor mats. Plaintiff’s foot slid until it caught on the edge of one of the floor mats. Plaintiff fell to the floor and experienced a snapping feeling in his lower right leg.
Plaintiff’s complaint is construed to set forth a single cognizable action, which is one sounding in negligence. In a claim predicated on negligence, the plaintiff bears the burden of proving by a preponderance of the evidence that defendant breached a duty owed to plaintiff and this breach proximately caused injury. Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 21 O.O.3d 177, 423 N.E.2d 467.
Plaintiff contends that defendant was negligent under the circumstances of this case and failed to exercise reasonable care for the safety of the plaintiff. There is no dispute that plaintiff’s legal status at the time of the incident was that of a business invitee. As such, a duty is imposed upon defendant to exercise reasonable care to see that the premises are reasonably safe for the use of plaintiff and other business invitees S.S. Kresge Co. v. Fader (1927), 116 Ohio St. 718, 158 N.E. 174.
Once defendant becomes aware of a dangerous condition on its premises, it is required to take reasonable care necessary to make certain that plaintiff is not injured. Consequently, plaintiff bears the burden of proof to demonstrate
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that defendant was on notice or aware of the condition on the floor where plaintiff fell. Presley v. Norwood (1973), 36 Ohio St.2d 29, 65 O.O.2d 129, 303 N.E.2d 81.
The legal concept of notice is of two distinguishable types; actual and constructive:
“The distinction between actual and constructive notice is in the manner in which notice is obtained or assumed to have been obtained rather than in the amount of information obtained. Wherever from competent evidence the trier of the facts is entitled to hold as a conclusion of fact and not as a presumption of law that information was personally communicated to or received by a party, the notice is actual. Constructive notice is that which the law regards as sufficient to give notice and is regarded as a substitute for actual notice.” In re Fahle’s Estate (1950), 90 Ohio App. 195, 47 O.O. 231, 105 N.E.2d 429, paragraph two of the syllabus.
Plaintiff failed to present evidence to show that the defendant had actual notice of the snow and slush build-up on the floor. Thomas Gallagher, director of building services and grounds, testified that he was not informed by any individual that snow and slush had accumulated on the floor. He testified that it was the custodian’s duties to check for water on the floors and clean it up immediately. Customarily, defendant’s security personnel would notify the custodial staff when water was observed on the floor of a building on defendant’s campus. Gallagher further testified that no such notification was given to the custodial staff on November 27, 1987, concerning the floors at Shrank Hall. Thus, plaintiff has failed to prove by a preponderance of the evidence that defendant had actual notice of snow and slush build-up on the floor where plaintiff fell.
To find constructive notice there must be “some evidence” that the snow and slush was on the floor prior to the fall long enough that the defendant should have known about it and removed it. Banks v. Quay (Aug. 29, 1989), Franklin App. No. 89AP-390, unreported, 1989 WL 99439. There was no evidence that there was ever a problem with the accumulation of snow and slush near the area where plaintiff fell. There was no testimony that an accumulation of snow and slush had gathered at the entranceway to Shrank Hall a significant time before the occurrence of the accident at issue. Plaintiff testified that he was unaware of the snow and slush until after he had fallen. Thus, plaintiff has failed to prove by a preponderance of the evidence that defendant had constructive notice of the condition of the floor where plaintiff fell. Therefore, the referee concludes that plaintiff has failed to prove by a preponderance of the evidence that defendant had notice, or, in the exercise of ordinary care, should have known there was snow and slush build-up
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on the floor of Shrank Hall where plaintiff fell. Further, the referee concludes that defendant was not negligent in the placement of the mats in front of the doors. Finding no negligence on behalf of defendant, it is recommended that judgment be rendered for defendant and this case be dismissed.