COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 72730/73872 ERMA PRITT, ET AL. : : Plaintiffs-Appellees : JOURNAL ENTRY : -vs- : AND : EDWARD J. DEBARTOLO : OPINION CORPORATION : : Defendant : : [Appeal by Chick-Fil-A, Inc. : : Defendant-Appellant] : Date of Announcement of Decision: OCTOBER 8, 1998 Character of Proceeding: Civil appeals from Court of Common Pleas Case No. 284222 Judgment: AFFIRMED Date of Journalization: Appearances: For Plaintiffs-Appellees: PAUL V. WOLF, ESQ. EDWARD S. MOLNAR, ESQ. 920 Terminal Tower Cleveland, Ohio 44113 For Defendant-Appellant: MICHAEL L. GOLDING, ESQ. TIMOTHY R. CLEARY, ESQ. Cleary & Associates Summit Two, Suite 220 2 Summit Park Drive Independence, Ohio 44131 -2- JAMES M. PORTER, P.J.: Defendant-appellant Chic-Fil-A, Inc. appeals from a judgment following a jury trial in which a verdict for $138,934 was returned in favor of plaintiffs-appellees Erma Pritt and her husband for injuries sustained in a slip and fall at the Randall Park Mall. Defendant contends in appeal no. 72730 that the trial court should have entered summary judgment in its favor; that the trial court erred in improperly admitting into evidence the deposition testimony of a key witness; in not directing a verdict in defendant's favor; and in excluding evidence with respect to possession and control of the Mall premises at the site of the accident. In appeal no. 73872, defendant argues the trial court erred in awarding prejudgment interest. We find no reversible error and affirm. On December 1, 1990, plaintiff Pritt went to the Randall Park Mall to do some Christmas shopping. As she walked through the mall concourse, her left foot slipped out from under her and she started to fall. She put her right arm out to catch herself and when she struck the floor, she fractured her right elbow. Her fall occurred in the area near defendant's fried chicken stand where defendant's employees were passing out samples of the chicken on a toothpick for consumption of passers-by. Plaintiff's contention in suit was that the floor was greasy from fried chicken crumbs which caused her fall. As plaintiff lay on the floor, Tajuanna Terrell, from the defendant's chicken stand, came to her assistance asking if she was -3- all right. The plaintiff stated that she felt she had broken her arm. Other individuals came to plaintiff's assistance, including Mall security. One of these individuals possessed a camera and was taking pictures of the black scuff marks where plaintiff slipped. This photographer informed plaintiff that it looked like chicken on the floor which caused plaintiff to slip. Andrew Carrano, director of security for Edward J. DeBartolo Corporation, the mall owner, testified with regard to an incident report which was admitted into evidence. He testified that the incident report indicated that there were chicken substances on the floor in the approximate area of the fall and that defendant's stand was located ten feet from the scene of the fall. Mr. Carrano also testified that earlier in the day he had seen defendant's employees sweeping in the area where plaintiff fell. Mr. Carrano also testified to the contents of the licensing agreement between DeBartolo and defendant relating to the chicken cart and the passing out of chicken samples. The licensing agreement (PX 11) which was admitted into evidence states that the licensee (defendant) must keep the premises and any displays in a safe, clean and proper manner and not permit any garbage or refuse emanating from the premises to accumulate in the Mall areas. Paragraph 7 further stated that the licensee shall protect DeBartolo with respect to any accidents or other occurrences in or at the premises or occasioned through the use of an occupancy of the premises or by an act or admission of the licensee or any -4- employees, agents, contractors, invitees in or upon the premises or any part of the shopping center. The deposition of Tajuanna Terrell was read at trial. Tajuanna Terrell testified that on December 1, 1990, she was employed by defendant at the Mall. She was only 14 years old at the time of this incident and her job responsibilities were necessarily limited to sampling the chicken. This meant that she would pass out samples of defendant's chicken on a toothpick to potential customers who were walking through the Mall. Ms. Terrell's testimony explained she would walk away from the cart to offer the chicken samples to passers-by. With regard to whether any of the chicken fell onto the Mall floor, Ms. Terrell testified: Q. Now would any of this chicken, when you passed them out in the mall area, around your cart or out further in the mall, did you notice any of the chicken got on the floor? A. Yes, chicken got on the floor, because we had to clean it up. Q. That day while you were working alone were you able to clean up the floor? A. Well, I might have cleaned up like in the beginning when I had time, but when the people started coming I didn't have time to clean up. I was too busy sampling because it started being crowds coming. (Terrell Depo. 12). Ms. Terrell also went to the spot where plaintiff fell and noticed the floor was greasy and she noticed herself sliding on the floor from chicken crumbs. (Tr. 13-14). Ms. Terrell testified as part of her job she was supposed to sweep -5- up the chicken crumbs when the Mall traffic allowed her to do so. (Tr. 17-18). Ms. Terrell testified that because she was busy on December 1, 1990, she was not able to do any sweeping or as much sweeping as she was supposed to perform. She testified that she saw the crumbs from the breading of the chicken precisely in the area where the plaintiff sustained her fall. (Tr. 22). It was the same area in which she had been passing out chicken samples. Ms. Terrell emphasized that she had not cleaned the floor and when she saw plaintiff fall, it brought her attention that there was chicken on the floor. Ms. Terrell added upon cross-examination that she was passing out samples at precisely the location where the plaintiff sustained her fall because she was meeting the people trying to get them to taste the chicken and my shoes was very slippery on the bottom. (Terrell Depo. 41). Since the bottom of her shoes were greasy, she would distribute the grease on the floor as she walked along offering samples. (Terrell Depo. 23). She further testified that it was her duty to sweep and clean the chicken crumbs wherever she saw them rather than only in the area immediately next to her cart. It was common for the chicken crumbs to get on the floor because the chicken was very messy, it crumpled up and everything, broke up ***. (Terrell Depo. 43). Defense counsel elicited from Ms. Terrell the fact that an individual came to her home to question her with regard to the facts involved in the case at bar. Ms. Terrell believed that this -6- individual, a lady, was on the defendant's side. Defense counsel further asked Ms. Terrell why she had not appeared for depositions that defendant had requested on a few prior occasions, to which she replied she had moved several times and never received notice of the deposition dates. As a result of her fall, the plaintiff sustained a severe fracture of her right arm which necessitated a three day hospitalization along with an open reduction surgery for the fracture. There was permanent limitation in the range of motion of plaintiff's arm subsequent to her injuries. On October 28, 1992, plaintiff filed suit against defendant DeBartolo Corporation for personal injuries and medical expenses. Upon refiling, the two defendants filed cross-claims against each other for indemnity. Following discovery, defendant filed for summary judgment, which was overruled. Prior to the court's ruling, defendant filed a motion to strike the affidavit of Tajuanna Terrell, which was denied. Defendant deposed Ms. Terrell on September 17, 1996. On April 18, 1997, plaintiff caused the deposition transcript of Tajuanna Terrell to be filed with the court inasmuch as Ms. Terrell was unavailable and plaintiff intended to read her deposition testimony into evidence at trial. The defendants filed motions to exclude the deposition testimony which were overruled. Trial commenced on April 22, 1997. At the close of plaintiff's case, the trial court granted defendant DeBartolo's motion for directed verdict, but denied -7- defendant's motion then and at the conclusion of all the evidence. The trial court entered judgment upon the jury verdict in favor of the plaintiff in the amount of $138,934.94. Motions on the cross- claims were denied. On May 29, 1997, the trial court overruled defendant's alternative motion for j.n.o.v. On December 18, 1997, the trial court granted the plaintiff's motion for prejudgment interest. These timely appeals ensued. We will address defendant's assignments of error in the order asserted. I. THE TRIAL COURT ERRED IN DENYING DEFENDANT- APPELLANT CHICK-FIL-A, INC.'S MOTION FOR SUMMARY JUDGMENT. Defendant contends that the trial court erred in overruling its motion for summary judgment because it owed no duty to plaintiff and because plaintiff adduced no evidence indicating what caused plaintiff to fall or that defendant knew or reasonably should have known of a dangerous condition. We do not need to address this argument in detail because the Ohio Supreme Court has held that there is no prejudicial error from overruling a motion for summary judgment where later events at trial prove that the contentions were not sustained. Whittington v. Continental Ins. Co. (1994), 71 Ohio St.3d 150. In any event, we find no merit to defendant's argument that it had no duty of care to avoid injuring another. All individuals are under a duty to use ordinary care to avoid injuring another unless the injury resulting therefrom could not reasonably have been -8- foreseen. Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d 642, 645; Gedeon v. East Ohio Gas Company (1934), 128 Ohio St. 335, syllabus. In the case at bar, it is axiomatic that it was foreseeable that if employees of Chick-Fil-A were distributing chicken crumbs and grease upon the Mall premises that a person such as plaintiff could slip upon same and sustain injury. Thus, a genuine issue of material fact would exist as to whether defendant, through the acts of its employees, violated its duty to use reasonable care to avoid causing injury to plaintiff. The fact that the injury occurred upon DeBartolo's common premises in the Mall is irrelevant if defendant's employees actively created the hazardous condition. We take note of the case Wilson v. Eastgate Company (March 27, 1995), Clermont App. No. CA94-04027, unreported, where it was held that the trial court committed error in granting summary judgment under the similar facts of the case at bar. The facts in Wilson appear: On August 1, 1991, around lunch hour, plaintiff Patricia J. Wilson was in the Eastgate Mall. As she walked in front of the Chick-Fil-A restaurant she slipped and fell on a piece of chicken. Pieces of chicken were being passed out by Chick-Fil-A personnel a short distance away. Wilson sued both Chick- Fil-A, Inc. and Eastgate Company, owner of the mall, for damages arising from injuries she sustained in the fall. The matter came before the Clermont County Court of Common Pleas, which granted summary judgment in favor of appellees ***. Id. at 1. -9- The Court of Appeals, citing Jackson v. Kings Island (1979), 58 Ohio St.2d 357, reversed the trial court, holding that as to both defendants that it was well-settled law that an owner and/or occupier of a premises owe a duty to exercise ordinary care to protect invitees from an unreasonable risk of harm. This was in spite of the fact the plaintiff fell in the common area of the Mall in front of the restaurant. Defendant's argument that the defendant had no notice of a dangerous condition is without merit because plaintiff's evidence on summary judgment showed that defendant's employees created the hazardous condition. Proof that the operator or his employees created the condition is proof he had notice of it. Detrick v. Columbia Sussex Corp. (1993), 90 Ohio App.3d 475, 477. See, also, Crane v. Lakewood Hosp. (1995), 103 Ohio App.3d 129, 136; Guilford v. Cent. Hardware Co. (1989), 62 Ohio App.3d 58, 61. Plaintiff submitted the affidavit of Tajuanna Terrell, an employee of defendant, who was passing out chicken samples in the Mall on December 1, 1990. Her affidavit stated that the Mall was crowded; that she was extremely busy handing out chicken samples; that part of her job was to sweep the floor in the area of the cart where she was passing out chicken because pieces of chicken would fall off the toothpick samples and onto the floor; that she was so busy that she was unable to sweep the floor as often as usual and she was not provided any extra help to do so by the store manager; that she saw the plaintiff slip and fall; that she went up to the plaintiff to inquire as to her well being; and that she observed -10- the area where plaintiff fell and saw chicken pieces on the floor and that the floor in the area where the plaintiff fell was greasy. The Terrell affidavit created a reasonable inference that the defendant, through its employees, created the hazardous condition which existed on the floor where the plaintiff sustained her fall. Under such circumstances, the plaintiff is relieved of her obligation to demonstrate that the defendant had knowledge or notice of the dangerous condition. We find no error in the trial court's overruling the defendant's motion for summary judgment. Defendant's Assignment of Error I is overruled. II. THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE THE DEPOSITION OF TAJUANNA TERRELL DESPITE THE FAILURE TO COMPLY WITH RULES 30 AND 32 OF THE OHIO RULES OF CIVIL PROCEDURE AND RULE 804 OF THE OHIO RULES OF EVIDENCE. Defendant's argument is based on two contentions: (1) the deposition which was admitted into evidence was not signed by Ms. Terrell; and (2) that plaintiff did not make the requisite showing of unavailability in order for the deposition testimony to be read into evidence. We find these arguments are without merit. Although the defendant raised these issues in its motion in limine prior to trial, its objection to the deposition testimony was not raised again when it was presented at trial. A ruling on a motion in limine is a tentative, interlocutory, precautionary ruling by the trial court reflecting its anticipatory treatment of [an] evidentiary issue. State v. Grubb (1986), 28 Ohio St.3d 199, 201-202. Failure to object to evidence at the trial constitutes a waiver of any challenge, regardless of the disposition made for a preliminary motion in limine. Id. at 203, quoting State v. Wilson (1982), 8 Ohio App.3d -11- 216, 220. See, State v. Maurer (1984), 15 Ohio St.3d 239, 259-260. By failing to object to specific testimony that if believed was barred by either the doctrine of res judicata or collateral estoppel, at the time that testimony was proffered, defendant waived its objection. Accordingly, its fourth assignment of error is overruled. Cunningham v. Goodyear Tire & Rubber Co. (1995), 104 Ohio App.3d 385, 393. Therefore, by not raising its objection at trial, the defendant has waived its objection to the deposition testimony. Even so, as this Court in Jelen v. Price (1983), 9 Ohio App.3d 174, 175 held: Pursuant to Civ.R. 30(E), a trial court is vested with sound discretion to permit the use of an unsigned deposition where it appears to the court that there was no good reason for the deponent's refusal to sign the deposition. In the case at bar the record fails to demonstrate good cause for appellant's refusal or failure to sign his deposition. Moreover, the record fails to demonstrate that the trial court's decision to permit appellee to use the deposition was arbitrary or unreasonable under the circumstances. We, likewise, find no abuse of discretion in the case herein of the trial court's permitting the unsigned deposition to be used at trial. Regarding the defendant's contention that the plaintiff did not set forth the requisite showing of Terrell's unavailability pursuant to Civ.R. 32(A) before seeking to admit the deposition testimony, this is also without merit. Civ.R. 32(A)(3) states in pertinent part: The deposition of a witness, whether or not a party, may be used by any party for any purpose if the Court finds: (a) that the -12- witness is dead; or (b) that the witness is beyond the subpoena power of the Court in which the action is pending or resides outside of the county in which the action is pending unless it appears that the absence of the witness was procured by the party offering the deposition; or (c) that the witness is unable to attend or testify because of age, sickness infirmity, or imprisonment, or (d) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena ***. It appears that the plaintiff attempted to obtain the attendance of Ms. Terrell well in advance of trial by the issuance of a subpoena. The trial court recognized this fact and found that the plaintiff had been unable to procure her attendance by subpoena. Accordingly, under the express language of Civ.R. 32(A)(3)(d), the deposition testimony of Ms. Terrell was properly introduced into evidence because her attendance was unable to be procured through the issuance of a subpoena. We find no abuse of discretion. Defendant's Assignment of Error II is overruled. III. THE TRIAL COURT ERRED IN NOT DIRECTING A VERDICT IN FAVOR OF DEFENDANT-APPELLANT BECAUSE PLAINTIFF-APPELLEE FAILED TO ESTABLISH A PRIMA FACIE CASE OF ACTIONABLE NEGLIGENCE. As the foregoing discussion re Assignment of Error I indicates, there was sufficient evidence on summary judgment to overrule defendant's motion. All of the same evidence was before the jury that was in front of the trial court when ruling on the motion for summary judgment. Indeed, the evidence at trial was even more favorable to plaintiff because rather than utilizing Ms. Terrell's affidavit as was done at the summary judgment stage, the -13- deposition testimony from Ms. Terrell at the trial of the matter included the additional fact that she was aware that the chicken crumbs were located in the precise area where plaintiff sustained her fall and the area was greasy. Thus, the jury had before it direct evidence of actual notice of the defective condition on the part of defendant's agent. Also presented to the jury was the fact that the incident report which was filled out by the security guard indicated that there were chicken substances on the floor in the approximate area of the fall. (Tr. 29, 164, 178). Plaintiff testified the reason she could not determine what she slipped on was because the security guard was standing behind her so she could support her back while waiting for the ambulance. He told her not to move. She therefore could not look behind him to see what she slipped on. (Tr. 74). She said she heard, however, the security guard taking the photos of the scene say it looked like she slipped on pieces of chicken. (Tr. 56). Defendant's Assignment of Error III is without merit and is overruled. IV. THE TRIAL COURT ERRED IN NOT CHARGING THE JURY WITH RESPECT TO LICENSEE AND POSSESSION AND CONTROL. Plaintiff was obviously a business invitee at a shopping mall. Under these circumstances, it would be entirely contrary to law for the trial court to instruct the jury with regard to duties owed to licensees. It would have been confusing and misleading to the jury to instruct on the premises occupier's duty to licensees. We find no error in denying the request. -14- Defendant's Assignment of Error IV is overruled. Regarding its appeal on the award of prejudgment interest, defendant asserts: -15- I. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR IN IMPROPERLY CONSIDERING STATEMENTS FROM COUNSEL AS EVIDENCE DURING THE PRE-JUDGMENT INTEREST HEARING. II. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR IN GRANTING PLAINTIFF'S MOTION FOR PRE-JUDGMENT INTEREST WITHOUT MAKING A SPECIFIC FACTUAL DETERMINATION THAT PLAINTIFFS DID NOT FAIL TO MAKE A GOOD EFFORT TO SETTLE THE CASE. III. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR IN GRANTING PLAINTIFF'S MOTION FOR PREJUDGMENT INTEREST WHEN PLAINTIFF FAILED TO PRESENT ANY CREDIBLE, COMPETENT EVIDENCE THAT CHICK-FIL-A FAILED TO MAKE A GOOD FAITH EFFORT TO SETTLE PRIOR TO TRIAL. We will address these assignments of error together as they all relate to the trial court's award of prejudgment interest. We have carefully reviewed the record and the hearing transcript and see no reason to disturb the trial court's award of prejudgment interest. The principles that govern our review are set forth as follows in Marous v. Ohio Bell Tel. Co. (1992), 80 Ohio App.3d 306-308-309: The decision as to whether a party's settlement efforts indicate good faith is generally within the sound discretion of the trial court *** [and] this court will not overturn a finding on this issue unless the court's actions indicate an abuse of discretion. Kalain v. Smith (1986), 25 Ohio St.3d 157, 159. An abuse of discretion connotes more than an error of law or judgment; it implies an unreasonable, arbitrary or unconscionable attitude. Cedar Bay Constr., Inc. v. Fremont (1990), 50 Ohio St.3d 19. A party has not `failed to make a good faith effort to settle' under R.C. 1343.03(C) if he has (1) fully cooperated in the discovery -16- proceedings, (2) rationally evaluated his risks and potential liability, (3) not attempted to unnecessarily delay any of the proceedings, and (4) made a good faith monetary settlement offer or responded in good faith to an offer from the other party. If a party has a good faith, objectively reasonable belief that he has no liability, he need not make a monetary settlement offer. Kalain, supra at syllabus. In the case herein, contrary to the defendant's assertions, we find the plaintiff produced sufficient evidence of lack of good faith that the trial court did not abuse its discretion in awarding prejudgment interest. First, the plaintiff provided evidence that the defendant failed to cooperate with discovery proceedings. Plaintiff offered proof via various letters between counsel and the defendant's adjusters, that the defendant, although knowing as early as March 1993 that the plaintiff had requested the whereabouts of the Chick- Fil-A employee/witnesses did not respond to plaintiff's request for the information. Plaintiff did not, in fact, obtain the information until 1995 after hiring her own private investigator. The defendant knew as early as 1991 that Terrell's statement was likely to be damaging. Therefore, the defendant's failure to turn over the evidence indicates that counsel was attempting to cover up damaging evidence. Secondly, plaintiff showed via various letters between defense counsel and the defendant's adjusters and defendant that the defendant did not rationally evaluate its potential risk and liability in the suit and did not reasonably respond to the plaintiff's settlement demand. These letters indicate that the -17- defendant was aware of the damaging incident report and Terrell's damaging statements that she saw chicken parts and grease in the area of the fall. Further, the plaintiff presented a letter in which defendant's counsel estimated that if the jury got the case, he estimated the verdict to be between $50,000 and $75,000 plus medical expenses. (Ex. 35, April 10, 1997 letter). Also, in referring to the testimony of Terrell, defense counsel wrote, We, therefore, believe that the case has at least some exposure because our ex- employee [Terrell] will be agreeable in testimony by Plaintiff. If she testifies, the case will go to the jury. The letter goes on to state, With medical expenses of at least $16,000.00 being subrogated, we anticipate the Plaintiff would not accept a sum of less than $25,000.00 to $35,000.00. Plaintiff's demand remains at $75,000. In spite of these statements by defense counsel, the defendant responded to the plaintiff's settlement request of $75,000 with a $5,000 offer. Plaintiff's medical expenses alone were $16,000. At the hearing, defendant's counsel admitted that the $5,000 was a nuisance value offer and the value that the defendant placed on the case even before taking the Terrell deposition. (Prejudgment Interest Transcript at 134- 137.) We find it is of no consequence that the plaintiff's counsel simply read the records into evidence while explaining to the Court what they represented, instead of placing a witness on the stand to explain. The trial court swore in both attorneys so that they could give their own statements. (Tr. 4). We also find it of -18- little consequence that much of the evidence dealt with conversations that occurred in the prior case which was later voluntarily dismissed without prejudice. The reason the original case had to be dismissed was the failure of the defendant to reveal its employee/witnesses. Furthermore, this same conduct continued in the refiled case. The fact that the demand for the names of the witnesses was an informal request instead of a formal demand for discovery, likewise is irrelevant. We believe that for purposes of weighing good faith efforts, attorneys should respond earnestly to all requests made for information that is not protected. The determination of what constitutes lack of good faith is left to the trial court's discretion. Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 658. Arguably, the failure to comply with informal but undisputed discovery demands could well fall within that determination. Defendant's assignments of error I, II and III are overruled. Judgment affirmed. -19- It is ordered that appellees recover of appellant their 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 Court of Common Pleas 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. LEO M. SPELLACY, J., and KENNETH A. ROCCO, J., CONCUR. JAMES M. PORTER PRESIDING JUDGE 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 .