COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73443 DOROTHY TEXLER, : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : : OPINION CASA DI BORALLY, : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 22, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-302958 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: LESTER S. POTASH 2000 Illuminating Building 55 Public Square Cleveland, Ohio 44113-1901 For Defendants-Appellees: MOLLY A. STEIBER 633 Leader Building 526 Superior Avenue, NE Cleveland, Ohio 44114 -2- TERRENCE O'DONNELL, PRESIDING JUDGE: Dorothy Texler appeals from a jury verdict in favor of the Casa Di Borally party center and the court's denial of her motion for a new trial in connection with an incident which occurred when a waitress at a wedding reception opened a kitchen door and knocked her to the floor causing injuries. Texler contends the court erred in determining her to be a licensee, in limiting her cross- examination at trial, and in declining to give requested jury instructions. After reviewing the record in this case, we have determined these contentions are not well taken and affirm the judgment of the trial court. On the evening of August 5, 1995, Dorothy Texler, the owner of Texler Photography, went to the Casa Di Borally party center to assist in photographing a wedding reception in furtherance of her contract with the wedding party. During the course of the wedding reception, as the staff began to serve the dinner, a waitress opened a kitchen door, striking Texler and causing her to fall to the floor and to sustain injuries. Texler sued the Casa Di Borally for negligence; and it defended on the basis of assumption of the risk and comparative negligence. The court conducted a jury trial, and accepted a verdict in favor of Casa Di Borally. Texler then moved for a new trial, which the court denied. She now appeals, raising four assignments of error. Because the first two assignments of error concern the same issues, we will address them together. They state: -3- I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN DETERMINING THAT DOROTHY TEXLER WAS A LICENSEE WHILE UPON THE DEFENDANT'S PREMISES. II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO PERMIT THE JURY TO DETERMINE DOROTHY TEXLER'S STATUS WHILE UPON THE DEFENDANT'S PREMISES. Texler argues the court erred by determining her to be a licensee rather than an invitee, and further argues the court should have allowed the jury to make that determination. Casa Di Borally contends that this is a judicial determination and in this case urges the trial court properly determined her to be a licensee. The issue before us, then, is whether the court erred in determining Texler to be a licensee. The distinction between an invitee and a licensee has been set forth in Light v. Ohio University (1986), 28 Ohio St.3d 66, at 68: Business invitees are persons who come upon the premises of another, by invitation, express or implied, for some purpose which is beneficial to the owner. It is the duty of the owner of the premises to exercise ordinary care and to protect the invitee by maintaining the premises in a safe condition. Conversely, a person who enters the premises of another by permission or acquiescence, for his ownpleasure or benefit, and not by invitation, is a licensee. A licensee takes his license subject to its attendant perils and risks. The licensor is not liable for ordinary negligence and owes the licensee no duty except to refrain from wantonly or willfully causing injury. (Emphasis in original). In Wiley v. National Garages, Inc. (1984), 22 Ohio App.3d 57, the court stated at 62: the question of whether undisputed facts, essential to the determination of the plaintiff's status, show him to -4- be a licensee or invitee, is a legal question for the court. In this case, the essential facts are not in dispute. Texler contracted with the wedding party to photograph their wedding and reception. She went to Casa Di Borally to assist her photographer with the reception. Although Texler claims to be an invitee, by application of Light v. Ohio University, supra, to the facts of this case, clearly we recognize Texler went to the Casa Di Borally for her own benefit, which makes her a licensee. Clearly, Texler was not an invitee of the wedding, nor was she invited to the Casa Di Borally by its ownership. Rather, because Texler entered Casa Di Borally for the purpose of photographing the wedding, she was a licensee. Since none of these facts are disputed, the court did not err in making that determination. Accordingly, this assignment of error is not well taken. Texler's third assignment of error states as follows: -5- III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN LIMITING DOROTHY TEXLER'S CROSS-EXAMINATION. At trial Texler's counsel sought to introduce evidence regarding the installation of windows in the solid wooden doors which Texler contends would have or could have avoided her injuries, but the court erred by refusing to permit that line of questioning. The issue before us, then, concerns the relevance of this testimony and whether the court erred in excluding it. In connection with the issue presented in this case, Evid.R. 402 provides: All relevant evidence is admissible, except as otherwise provided * * * . Evidence which is not relevant is not admissible. Evid.R. 401 defines relevance and states: Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Here, the record reflects that Texler's counsel attempted to elicit testimony regarding feasibility of installing a window in the wooden kitchen door and whether such a window would have prevented the accident. However, at trial, the issues presented for jury determination concerned her status on the property on the date of the wedding reception and the duty if any owed to her by Casa Di Borally at that time. Since we have previously determined in connection with her first assignment of error that Texler was a -6- licensee, Casa Di Borally had no duty to her except to refrain from wantonly or willfully injuring her. Thus, in accordance with Evid.R. 401, any testimony concerning the feasibility or utility of a glass window in the door does not make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the testimony. Thus, the court did not abuse its discretion in excluding this testimony. This assignment of error is therefore without merit and is overruled. Texler's fourth assignment of error states as follows: IV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ITS INSTRUCTIONS TO THE JURY. Texler argues the court erred in its jury instructions because it ignored the liability of Casa Di Borally for the acts of its employee, Ms. Wehr, in knocking Texler to the floor or bumping into her and further erred by not instructing the jury on the law defining an invitee. Casa Di Borally contends the court did not err in instructing the jury and points out that the court did, in fact, instruct the jury on the issue of corporate liability for acts of employees. The question before us, then, is whether the court committed reversible error in its jury instructions. The transcript reveals the court's charge to the jury included in part: The defendant in this action is a corporation which acts by and through its authorized agents and employees. The acts of a corporation's employees undertaken within -7- the course and scope of his or her activities on behalf of the corporation are considered the acts of the corporation for which the corporation is liable under the law. (Emphasis added). Thus, the jury could have concluded that Casa Di Borally could be held accountable for the actions of its waitress, Ms. Wehr, in this case. The specific instructions requested by Texler would have only been cumulative. Thus, from our review of the court's charge in this case, we conclude the court discharged its duty to instruct the jury on this issue, and accordingly, did not abuse its discretion in refusing to give Texler's specific requested instruction. Regarding the claimed error in refusing to instruct on the law of an invitee, as we have previously determined in consideration of the other assignments of error, Texler was a licensee on the premises of Casa Di Borally and, hence, the court had no duty to instruct on the law of an invitee. Accordingly, this assignment of error is overruled. Judgment affirmed. -8- It is ordered that appellee recover of appellant 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. TIMOTHY E. McMONAGLE, J., JAMES D. SWEENEY, J., CONCUR TERRENCE O'DONNELL 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 .