COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61202 PATRICIA BRISBIN : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : SOCIETY CORPORATION : OPINION : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CP-180260. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Mary V. G. Walsh, Esq. 459 The Arcade Cleveland, OH 44114 For Defendant-Appellee: Brent M. Buckley, Esq. 900 Park Plaza Cleveland, OH 44114 -2- DAVID T. MATIA, C.J.: Plaintiff-appellant appeals from the judgment of the Cuyahoga County Court of Common Pleas which granted defendant-appellee's motion for summary judgment. Based on the reasons adduced below, we affirm. STATEMENT OF THE FACTS On February 5, 1986, plaintiff-appellant, Patricia Brisbin was in the United Branch of Central National Bank, now Society National Bank by merger, when the following incident occurred giving rise to the within action. Appellant Brisbin testified in her deposition that she was standing in line, solely to make payment on two mortgages which Society held on her properties, when she began to menstruate. She asked the teller to use the Bank's restroom. The teller responded that she did not have the authority to allow appellant to use the restroom and that she should ask someone at the front desk. Appellant testified that she then asked permission from someone sitting at the front desk. Again it was explained to appellant that she could not use the Bank's restroom because it was not a public restroom and was located in a secured area. The woman suggested that appellant go across the hall and use the restaurant's restroom. Appellant then asked that "Downtown" be called, whereupon appellant was permitted to speak to a Society customer relations representative at the main office. "Downtown" likewise explained to appellant that because of policy and security considerations, no one could use the restroom except employees. Appellant then left the Bank. -3- Appellant apparently decided to drive downtown to Society to speak to someone in person. At Society, appellant waited to speak to a Society representative who eventually met with appellant and listened to her story. Appellant testified that she was not a regular banking customer of Society and that she had never been to the United branch before this incident occurred. STATEMENT OF THE CASE In June, 1986, appellant filed an original complaint sounding in tort, Cuyahoga County Court of Common Pleas Case No. 112118. In December, 1988, appellant voluntarily dismissed this action, pursuant to Civ. R. 41(A), reserving the right to refile the action within one year. In December, 1989, appellant refiled the action and consolidated with the original action. On November 7, 1990, Society Corporation filed a motion for summary judgment which was granted by the trial court on December 21, 1990. Appellant filed a timely notice of appeal on January 18, 1991. APPELLANT'S SOLE ASSIGNMENT OF ERROR THE TRIAL COURT ERRED IN GRANTING DEFENDANT- APPELLEE'S MOTION FOR SUMMARY JUDGMENT. Appellant argues in her sole assignment of error that the trial court erred in granting appellee's motion for summary judgment. Specifically, appellant argues that Society breached its duty of care owed to appellant. This assignment of error is not well taken. -4- ISSUE: WHETHER A GENUINE ISSUE OF MATERIAL FACT EXISTED IN REGARD TO THE BANK'S ALLEGED BREACH OF DUTY In Ohio it is well established that liability in negligence will not lie in the absence of a special duty owed by the defendant. Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 285. The essential elements for a claim predicated upon negligence are duty, breach of that duty, and damage or injury that occurs as a proximate result of the breach. Strother. In the case sub judice, appellant asserts that because of her status as a business invitee at Society Bank, she was entitled to reasonable care and reasonable care in her mind meant access to the Bank's bathroom. The nature and scope of the duty of care owed to business invitees, generally, has been defined as requiring the premises owner to exercise reasonable care to protect its invitees from an unreasonable risk of physical harm. Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203; and, Cornell v. Aquamarine Lodge (1983), 12 Ohio App.3d 148. Under such a relationship, the occupier owes the invitee a duty to use reasonable care to protect the invitee from unreasonable harm from dangers of which the occupier is aware or reasonably should be. Jackson v. Kings Island (1979), 58 Ohio St.2d 357, 359. Paul v. Uniroyal Plastics Co. (1988), 62 Ohio App. 3d 277. However, the occupier owes no duty to protect the invitee from dangers which the invitee may reasonably discover and guard himself against. Sidle v. Humphrey (1968), 13 Ohio -5- St.2d 45. See, also, LaCourse v. Fleitz (1986), 28 Ohio St.3d 209, 210. In the within case, the trial court granted summary judgment for appellee Bank. It is axiomatic that when the court considers the evidence presented with regard to summary judgment, it should not attempt to usurp the jury's role of assessing credibility, weighing the evidence, or drawing inferences. Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242. Rather, the court's function is to consider the evidence, in light of each party's evidentiary burden, to determine whether there is sufficient evidence to support the non-moving party's position that a jury could reasonably find in his favor. Anderson. If the evidence is sufficient, then a genuine issue of material fact remains to be resolved by a jury. Thus, if the court is satisfied, after construing the evidence most strongly against the moving party, that there is no genuine issue of a material fact, that a reasonable jury could not render a verdict in the non-moving party's favor, and, therefore, that the moving party is entitled to judgment as a matter of law, the court should grant sumary judgment in favor of the moving party. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. Reviewing the facts of this case, we find no error. Appellant's problem was a very personal problem and one which the Bank had no reason to be aware of to protect her against. Further, there was no unreasonable risk of physical harm to appellant flowing from some action of the Bank. We find it -6- reasonable that Bank policy prohibited the use of the Bank's restroom located in a secured area. Appellant was directed to a nearby restroom across the hall. Thus, we can find no breach of duty owed to appellant in the within situation, nor any injury that occurred as a proximate result of the alleged breach. We find, therefore, that summary judgment was properly granted in appellee's favor. Consequently, appellant's sole assignment of error is found not well taken. Judgment affirmed. -7- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas 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. Exceptions. JOHN F. CORRIGAN, J. and JOHN V. CORRIGAN, J. (Retired Judge of the Eighth District Court of Appeals, sitting by assignment), CONCURS. DAVID T. MATIA CHIEF JUSTICE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .