COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68333 DONNA M. LENGEN, : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION JANE THORNBURGH, : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 24, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 249553 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: Michael J. Skindell SEAMAN & ASSOCIATES CO. 1600 Rockefeller Building 614 Superior Avenue, N.W. Cleveland, Ohio 44113 For defendant-appellee: Albert J. Rhoa 1850 Midland Building Landmark Office Towers 101 Prospect Avenue, West Cleveland, Ohio 44115-1027 -2- NAHRA, J.: Appellant, Donna Lengen, is appealing the trial court's final judgment in favor of appellee, Jane Thornburgh, entered after a jury rendered a verdict in favor of defendant-appellee. Appellant contends the trial court erred in denying her motions for directed verdict. For the following reasons, we affirm. Appellant sued appellee for injuries she sustained when she fell on the basement steps in appellee's home. Appellant was assisting her boyfriend, whom appellee hired to hang wallpaper. Appellee contacted the boyfriend, Richard Forestall, to quote a price for wallpapering her first and second floor bathrooms. Forestall and his assistant, Neil Taylor, went to appellee's home. Both men took measurements and discussed the job with appellee. Forestall testified he asked appellee if he could paste sheets in the basement, and appellee then showed him the basement. Appellee testified she never showed Forestall the basement and was unaware he would be using the basement. Appellee and Forestall agreed Forestall would perform the work on a weekend appellee would be away. Appellee gave Forestall a key to her home. Appellee and Forestall had no discussion concerning whether Forestall would bring an assistant. Appellee testified she expected Forestall would do the work alone. Forestall testified that he started the work on Sweetest Day. Neil Taylor was unavailable to assist him. Appellant volunteered to assist Forestall, so the job would be completed quickly and the -3- two could go out for Sweetest Day. Appellant had previously hung wallpaper with Forestall at her father's home and her home. Forestall entered the house first and turned on the lights at the top and bottom of the basement steps. There was a ledge on the left side of the steps, but no railing. The wooden steps were painted a greenish brown, which Forestall and appellant characterized as dark. Appellee testified the color was not dark. Forestall did not notice anything on the steps. Appellant, carrying spackle, was about to follow Forestall down the steps. She noticed a ribbon on the left ledge of the steps, but did not see anything else on the steps. As she stepped on the first step, she slipped on something and went sailing into the air, and then fell down a few steps. Forestall heard the fall and observed appellant sitting on the floor feet first. He noticed an unrolled black bicycle inner tube near appellant. Appellee testified that she had rolled up the inner tube, tied it with a rubber band and placed it on the top step. Appellee testified the tube was open to view. Appellant moved the trial court to enter a directed verdict that: (1) appellant was an invitee on appellee's property, and (2) appellee was negligent. The trial court denied the motion on both issues. I. Appellant's first assignment of error states: THE TRIAL COURT ERRED IN DENYING PLAINTIFF-APPELLANT'S MOTION FOR A DIRECTED VERDICT ON THE ISSUE OF PLAINTIFF- -4- APPELLANT'S STATUS AS AN INVITEE OF (SIC) DEFENDANT- APPELLEE'S PROPERTY. A motion for directed verdict must be denied if construing the evidence most strongly in favor of the non-movant, reasonable minds can reach different conclusions on the issue in question. Ziegler v. Wendel Poultry Serv., Inc. (1993), 67 Ohio St.3d 10, Civ.R. 50(A)(4). The issue in question here is whether appellant was an invitee or a licensee. An invitee is a person who enters the premises of another (1) at the express or implied request of the owner, and (2) the purpose of the visit is to confer a tangible benefit on the owner. Light v. Ohio University (1986), 28 Ohio St.3d 66, 68, Provencher v. Ohio Dept. of Transp. (1990), 49 Ohio St.3d 265, 266-267. A licensee enters the premises of another (1) by express or tacit consent or as a matter of general or local custom, and (2) enters solely for his own purpose. Light, supra. In this case, a reasonable person could conclude appellant went to appellee's home for her own purposes, i.e. a Sweetest Day date, or could conclude that the purpose was to benefit appellee by assisting in the wallpaper job. Reasonable minds could also differ on whether appellant was expressly or impliedly invited on the premises. See Miller v. Wards (Dec. 19, 1985), Cuyahoga App. No. 49923, unreported. Even if a person enters the premises to benefit the owner, the owner must have expressly or impliedly invited the person in order for the person to have invitee status. Id. Invitees are invited on the land, while licensees are merely permitted to be there. -5- There are several cases which hold that when an independent contractor is hired to perform work on the land, an employee of the independent contractor is impliedly invited onto the land. See Hozian v. Crucible Steel Casting Co. (1937), 132 Ohio St. 453, Taylor v. B.P. Exploration and Oil, Inc. (1994), 96 Ohio App.3d 318, Baer v. DeKay (1939), 62 Ohio App. 445. These cases are distinguishable, because in each case the premises owner knew the independent contractor would have employees perform the work. In Baer, the independent contractor told the owner he would employ several men for the job. In Hozian and Taylor, the independent contractors were corporations whose agents performed the work. In this case, there are conflicting facts on whether appellee knew Forestall would have an assistant. Reasonable minds could reach different conclusions on whether appellant was impliedly invited to appellee's home. Reasonable minds could differ as to whether appellant was an invitee or licensee. Accordingly, this assignment of error is overruled. II. Appellant's second assignment of error states: THE TRIAL COURT ERRED IN DENYING PLAINTIFF-APPELLANT'S MOTION FOR A DIRECTED VERDICT ON THE ISSUE OF DEFENDANT- APPELLEE'S NEGLIGENCE. In order to establish negligence, one seeking recovery must show the existence of a duty, breach of the duty, and an injury resulting proximately therefrom. Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142. Appellant asserts that reasonable minds could only -6- conclude appellee breached her duty of care toward appellant and the only issue remaining for the jury was what damages and injuries were proximately caused by the breach of duty of care. We find that reasonable minds could differ on the issues of duty and breach of duty. A reasonable trier of fact could determine that the inner tube was open and obvious. A landowner has no duty to protect a person on the land from dangers which the person may reasonably discover and guard himself against. Sidle v. Humphrey (1968), 13 Ohio St.2d 45, Parsons v. Lawson (1989), 57 Ohio App.3d 49. A reasonable trier of fact could also conclude that appellant did not breach her duty to appellee. If appellant was an invitee, appellee had the duty to exercise ordinary and reasonable care for the safety of appellant, to keep the premises in a reasonably safe condition, and to warn appellant of latent defects of which appellee had knowledge or should have had knowledge. Light v. Ohio University (1986), 28 Ohio St.3d 66, Jackson v. Kings Island (1979), 58 Ohio St.2d 357. Based on the facts of this case, the trier of fact could find the premises were reasonably safe and the inner tube was discoverable by appellant and not latent. If appellant was a licensee, appellee had the duty to refrain from wantonly or wilfully causing injury to appellant. Light, supra. A premises owner acts wantonly or wilfully when the probability of harm in acting or failing to act is great and the owner knew or should have known of the great probability of harm. Highfield v. Liberty Christian Academy (1987), 34 Ohio App.3d 311, -7- Hawkins v. Ivy (1977), 50 Ohio St.2d 114. Here, reasonable minds could differ over whether placing the inner tube on the step created a great probability of harm, and whether appellee knew or should have known of the great probability of harm. Appellee testified she was unaware Forestall would be using the basement, and thus did not know of the great probability of harm. Thus, there was a jury question on the issues of duty and breach of duty. The trial court properly denied appellant's motion for directed verdict on the issue of negligence. Accordingly, this assignment of error is overruled. The decision of the trial court is affirmed. -8- It is ordered that appellee recover of appellant her 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. SPELLACY, P.J., and SWEENEY, JAMES D., J., CONCUR. JOSEPH J. NAHRA JUDGE 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 .