COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA CASE NO. 72041 : JEANNE WILSON : : Plaintiff-appellant : : -vs- : JOURNAL ENTRY : AND RED ROOF INNS, INC. : OPINION : Defendant-appellee : DATE OF ANNOUNCEMENT DECEMBER 11, 1997 OF DECISION CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas, Case No. 307179 JUDGMENT Affirmed. DATE OF JOURNALIZATION APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: Steven M. Weiss, Esq. Richard R. Kuepper, Esq. 1250 Illuminating Building KUEPPER, WALKER, HAWKINS AND 55 Public Square CHULICK Cleveland, Ohio 44113 Skylight Office Tower, Suite 480 1660 West Second Street Cleveland, Ohio 44113 -2- ROCCO, J.: Plaintiff-appellant Jeanne A. Wilson instituted this personal injury action against defendant-appellee Red Roof Inns, Inc. for injuries sustained in a fall which occurred when appellant slipped while alighting from a bathtub/shower unit in one of appellee's motel rooms. In this appeal, appellant challenges the trial court's actions in granting appellee's motion for a protective order to limit discovery, in denying her motion for reconsideration of the protective order, and in granting appellee's motion for summary judgment, thereby terminating her action. This court has reviewed the record, finds the trial court's orders were appropriate and therefore affirms. On July 10, 1993, appellant, a forty-nine year old woman, accompanied by her husband and her adult daughter, occupied a room at appellee's facility located in Middleburg Heights, Ohio. Within the following day or two, appellant and her two family members each used the motel room's bathtub/shower unit without mishap. At the time she first used it, appellant noticed the unit "was out of the ordinary."1 The floor of the bathtub unit was approximately six inches higher than the bathroom floor. On the edge of the bathtub in red letters was a sign which stated "Step Down." Appellant noticed the construction of the bathroom was "a little odd" and considered the sign to be "different." 1Quoted text is excerpted from deposition testimony or other evidentiary material filed in the trial court in conjunction with appellee's motion for summary judgment. -3- On July 13, 1993 as appellant was exiting the unit after bathing, she slipped and fell, sustaining injuries to her back, her right hand, and her legs. Appellant did not seek immediate medical attention, but she reported the incident to the motel management. Appellant and her family remained as guests in the facility until August 10, 1993. On April 19, 1996, appellant filed this action against appellee in the Cuyahoga County Court of Common Pleas.2 Appellant alleged in her complaint her injuries were caused by appellee's negligence in installing the bathtub unit and in failing to either correct or warn appellant of a "dangerous condition" existing on its premises. Appellant further alleged appellee's actions were "wilful, wanton and malicious," thus, she prayed for both compensatory and punitive damages. Appellee denied the pertinent allegations of the complaint and set up several affirmative defenses. On August 23, 1996, appellant filed a notice of intention to depose a witness named Fred Flint. Appellee responded by filing a motion for a protective order. In its motion, appellee explained to the trial court its reasons for its request for the order in pertinent part as follows: During the original filing of this matter, Plaintiff sought the release of reports pertaining to all persons who claim to have been injured while alighting from tubs at Red Roof Inns throughout the country. Although this 2The record reflects appellant originally filed her action in April 1995 but subsequently filed a Civ.R. 41(A) notice of voluntary dismissal prior to trial. Appellant re-filed her action pursuant to R.C. 2305.19. -4- Defendant filed a Motion for Protective Order, the Court overruled it and ordered disclosure of reports of all incidents of any kind which took place in a bathroom at Red Roof Inns. A request that the identity of the patrons be excised was also overruled. Plaintiff has now filed a Notice to depose one of those patrons ***. Mr. Flint reported that he fell on July 24, 1988 at the Red Roof Inn located in Aberdeen, Maryland. Now, simply because he was a guest and suffered an injury, Mrs. Wilson, through her attorney, seeks to involve him in a lawsuit in which he has no interest. ***. Mr. Flint had every right to expect that Red Roof Inns would protect his right to privacy, and would not disclose his identity, ***. More importantly, the depositions of any of these patrons is irrelevant to the matters at issue. (Emphasis added.) Appellant filed a brief in opposition to appellee's motion. On September 23, 1996, however, the trial court granted appellee's motion on the basis that the information sought was "collateral" to the issues to be litigated in the case and would not reasonably lead to admissible evidence. Shortly thereafter, appellant filed a motion for reconsideration of the protective order. Appellant argued the testimony of other patrons would demonstrate appellee "had notice of the hazard." On October 24, 1996 the trial court denied appellant's motion for reconsideration. On December 17, 1996, appellee filed a motion for summary judgment. Appellee argued it was entitled to judgment as a matter of law because the evidence demonstrated both that appellee had met its duty of care toward appellant and that appellant was "the proximate cause of her own injuries. -5- Appellee attached to its motion copies of the following: 1) portions of appellant's deposition testimony; 2) photographs identified by appellant as ones she had taken of the motel bathroom subsequent to her fall; 3) the affidavit of Christopher L. Fulton, appellee's Corporate Counsel; and 4) a copy of the report of Gerald S. Burko, appellant's safety consultant. On January 9, 1997 appellant filed a brief in opposition to appellee's motion. Appellant argued genuine issues of fact remained concerning whether appellee was aware of the danger posed by the height differential between the floor of the unit and the bathroom floor and whether appellee adequately warned patrons of that danger. Appellant further argued there was "no evidence that [she] was aware of the hazard." Appellant attached to her brief her affidavit, in which she reiterated her deposition testimony that upon exiting the unit the second time, "the bathroom floor was not where I expected it to be." On February 7, 1997 the trial court granted appellee's motion for summary judgment. Appellant subsequently filed a timely notice of appeal from the foregoing order. Appellant presents three assignments of error for review which will be addressed in logical order. Assignments of Error II and III are both related and argued together by appellant,3 therefore, they are considered together as follows: II 3See App.R. 16(A)(7). -6- THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR A PROTECTIVE ORDER SO AS TO BAR APPELLANT FROM OBTAINING AND INTRODUCING THE TESTIMONY OF NUMEROUS OTHER RED ROOF INN PATRONS WHO WERE INJURED UNDER CIRCUMSTANCES THAT WERE SUBSTANTIALLY SIMILAR TO THOSE WHICH GAVE RISE TO APPELLANT'S INJURY. III THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR RECONSIDERATION OF THE TRIAL COURT'S ORDER GRANTING THE APPELLEE'S MOTION FOR A PROTECTIVE ORDER. Appellant argues the trial court improperly foreclosed her from seeking evidence relevant to her claims when it granted appellee's motion for a protective order and then refused to reconsider its ruling. This court disagrees. Civ.R. 26(C) gives the trial court broad authority to regulate discovery. Drawl v. Cleveland Orthopedic Ctr. (1995), 107 Ohio App.3d 272 at 277, citing State, ex rel. Grandview Hosp. & Med. Ctr. v. Gorman (1990), 51 Ohio St.3d 94. Absent an abuse of the trial court's discretion in the matter, an appellate court will not overturn a trial court's ruling. In Re Estate of Popp (1994), 94 Ohio App.3d 640; Huebner v. Miles (1993), 92 Ohio App.3d 493. Appellant has the burden to demonstrate the trial court's refusal to permit further discovery affected her substantial right to an effective litigation. In Re Estate of Popp, supra; see, also, Smith v. Klein (1985), 23 Ohio App.3d 146. The record reflects that originally the trial court permitted appellant to obtain from appellee any reports of incidents involving bathtub injuries at appellee's facilities over a period of many years. As a result, appellant assembled an appendix -7- containing copies of at least 210 incident reports. Appellant filed this appendix both in her original and in the instant action. Under the circumstances, appellant adequately demonstrated her allegation that appellee had notice some persons were slipping while exiting the bathtub/shower unit in appellee's motel rooms. Thus, the trial court's subsequent protective order did not affect her substantial right to litigate her claim. Huebner v. Miles, supra; cf., Rossman v. Rossman (1975), 47 Ohio App.2d 103. Moreover, the trial court gave a valid reason for the protective order, viz., relevancy. Since the evidence appellant had assembled demonstrated appellee had notice of other injuries, that was no longer an issue in the case. Therefore, appellant's desire to pursue particular instances of injuries to other patrons in other motel room bathrooms was inappropriate. Drawl v. Cleveland Orthopedic Ctr., Inc., supra; Bland v. Graves (1993), 85 Ohio App.3d 644. The trial court thus erred neither in granting appellee's motion for a protective order nor in denying appellant's motion for reconsideration. Accordingly, appellant's second and third assignments of error are overruled. Appellant's first assignment of error states: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE APPELLEE WHERE THE EVIDENCE DEMONSTRATED THAT APPELLANT LOST HER FOOTING WHILE EXITING A BATHTUB AT ONE OF THE APPELLEE'S MOTELS, THAT APPELLEE EQUIPS ITS MOTEL ROOMS WITH BATHTUBS THAT HAVE ELEVATED BOTTOMS, THAT THE ELEVATION CAUSED APPELLANT TO LOSE HER FOOTING AND THAT NUMEROUS OTHER PATRONS HAVE BEEN INJURED WHILE ATTEMPTING TO ALIGHT FROM SAID BATHTUBS. -8- Appellant argues summary judgment for appellee was improper because genuine issues of material fact remain in this case concerning appellee's breach of its duty toward her. Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274, *** Davis v. Loopco Industries, Inc. (1993), 66 Ohio St.3d 64. As the moving party in this case, appellee had the burden of demonstrating there existed no genuine issue as to any material fact and that it was entitled to judgment as a matter of law. Dresher v. Burt (1996), 76 Ohio St.3d 280. A review of the record reveals appellee met its burden. To establish a claim for negligence, appellant had to show three essential elements: (1) a duty or obligation on the part of appellees to protect her from injury; (2) a breach of that duty; and (3) an injury proximately resulting from that breach. Wellman v. East Ohio Gas Co. (1953), 160 Ohio St. 103, paragraph three of the syllabus; Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142; Keister v. Park Centre Lanes (1981), 3 Ohio App.3d 19. It is well established that: *** The possessor of premises owes a duty to an invitee to exercise ordinary or reasonable care for his or her safety and protection. This duty includes maintaining the premises in a reasonably safe condition and warning an invitee of latent or concealed defects of which the possessor has or should have knowledge. Id. However, it -9- is also well-established that balanced against this duty, the owner of premises in not to be held as an insurer against all forms of risk. S.S. Kresge Co. v. Fader (1927), 116 Ohio St. 718, 158 N.E. 174. Baldauf v. Kent State Univ. (1988), 49 Ohio App.3d 46 at 47-48. (Emphasis added.) See, also, Paul v. Uniroyal Plastics Co. (1988), 62 Ohio App.3d 277; Anderson v. Ruoff (1995), 100 Ohio App.3d 601. It is only where it is shown that the owner had superior knowledge of the particular danger which caused the injury that liability attaches, because in such a case the invitee may not reasonably be expected to protect himself from a risk he cannot fully appreciate. LaCourse v. Fleitz (1986), 28 Ohio St.3d 209, 210. (Emphasis added.) Appellant presented expert testimony in the form of Mr. Burko's report that the raised floor of the bathtub unit in relation to the floor of the bathroom constituted a danger. The evidence in the record revealed, however, that appellee was aware of this danger and took steps to warn its patrons. Appellee's corporate counsel Mr. Fulton stated in his affidavit the following: 5. According to corporate records, STEP DOWN labels with red lettering were installed on all of these units beginning in 1983. 6. According to corporate records, grab bars were installed on the units at the Red Roof Inn in Middleburgh (sic) Heights, Ohio in or before 1989. Appellant argued these steps were inadequate, citing Mr. Burko's conclusions contained in his report. However, appellant could not prove the essence of her claim that appellee breached its duty toward her because her deposition testimony proved she saw the -10- sign posted by appellee and was aware of the danger. Appellant stated the following: Q. Okay. Had you used the tub or shower prior to the time you used it when you fell? A. Yes. Q. How many times? A. Once. * * * Q. On the time that you used it prior to the time when you fell, did you notice anything different about it? A. It seemed kind of odd. Q. Did you make any comments about that to anyone? A. I did. Yes, I did. Q. To whom did you speak? A. I just made a quick comment to my daughter. Q. Did either your husband or your daughter also notice anything out of the ordinary about this setup? A. I don't know. I thought it was out of the ordinary. I don't know what they thought. * * * Q. Okay. What was the surface of the tub like, inside the tub like; was it a smooth surface? A. No. Q. Could you describe the surface. A. Like a little grit to it or something. * * * Q. When you got into the tub, do you recall noting anything unusual about the construction or setup of this tub or bathroom? -11- A. I thought it was a little odd. Q. Do you remember what you thought was odd about it? A. Just different. The sign, I don't know. Q. Okay. When you say the sign, what are you referring to? A. Step down. Q. Were there any other signs or notices of any sort inside the bathroom? A. Not that I recall. Q. Okay. But these red letters that say step down on the edge of the tub, do you recall seeing those? A. Yes I do. Q. Do you recall seeing those on your way into the tub or shower. A. Yes. Q. Okay. And do you recall seeing that sign or those words when you used the tub on the prior occasion? A. Yes. Q. Okay. What did you think that sign meant? A. What it says, step down. * * * Q. Okay. Let's get back to what actually happened and how you were injured. * * * A. I stepped out of the tub. The floor didn't it didn't it happened real quick. I stepped out and I misjudged, I did something. The floor wasn't where it should be. I fell. The foregoing testimony proves appellee fulfilled its duty to warn its patrons because appellant was aware of the unusual nature of the construction of the bathroom. Appellant's knowledge of the -12- conditions in the bathroom relieved appellee of any further duty toward her. Raflo v. Losantiville Country Club (1973), 34 Ohio St.2d 1; Centers v. Leisure Internatl., Inc. (1995), 105 Ohio App.3d 582; Society National Bank v. Italian Made, Inc. (Aug. 18, 1994), Cuyahoga App. No. 66169, unreported. As the court stated in Paul v. Uniroyal Plastics Co., supra at 284: Appellee only has the duty to protect invitees from known dangers which are unknown to the invitee. *** [T]here is no basis for finding that appellee's knowledge was superior to appellant's. Appellant argues her prior use of the bathtub unit should not be held to charge her with knowledge of the danger posed by it. Appellant cites Shaw v. Cent. Oil Asphalt Corp. (1981), 5 Ohio App.3d 42 in support of her contention. After a review of Shaw, this court finds it unpersuasive since the Shaw court relied upon appellate cases to support its decision in the face of Ohio Supreme Court decisions to the contrary. S.Ct.R.Rep.Op. 1(B). Appellant also argues the doctrine of comparative negligence precludes summary judgment in this case. However, this argument was not presented in the trial court, hence, it is waived for purposes of appeal. See, e.g., Huebner v. Miles, supra. Nevertheless, appellant's argument is unavailing since the question of comparative negligence is never reached if appellant cannot demonstrate appellee breached its duty toward her. See, e.g., Anderson v. Ruoff, supra; cf., Guilford v. Central Hardware Co. (1989), 62 Ohio App.3d 58. -13- The evidence proved appellant could not maintain her action in negligence since she could not show appellee breached any duty toward her. No genuine issue of material fact remained in this case, therefore, the trial court did not err in granting appellee's motion for summary judgment. Wing v. Anchor Media Ltd., of Texas (1991), 59 Ohio St.3d 108. Accordingly, appellant's first assignment of error is also overruled. The judgment of the trial court is affirmed. -14- 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 Cuyahoga County 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. TIMOTHY McMONAGLE, P.J., AND LEO SPELLACY, J., CONCUR. JUDGE KENNETH A. ROCCO N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .