COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74395 VERNEDA JOHNSON, ET AL. : : ACCELERATED DOCKET PLAINTIFFS-APPELLANTS : : JOURNAL ENTRY vs. : : AND UNIVERSITY HOSPITALS OF : CLEVELAND : OPINION : DEFENDANT-APPELLEE : : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 5, 1998 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-324795. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: ________________________________ APPEARANCES: For Plaintiff-appellant: R. Mark Gottfried, Esq. Sheldon Karp Co., L.P.A. 1835 Midland Building 101 Prospect Avenue, West Cleveland, Ohio 44115 For Defendant-appellee: Dennis R. Fogarty, Esq. Davis & Young 1700 Midland Building 101 Prospect Avenue, West Cleveland, Ohio 44115-1027 PER CURIAM: An accelerated appeal is authorized pursuant to App.R. 11.1 and Loc.App.R. 25. The purpose of an accelerated docket is to -2- allow an appellate court to render a brief and conclusory decision. Crawford v. Eastland Shopping Mall Assn. (1983) 11 Ohio App.3d 158. Plaintiffs-appellants Verneda Johnson and Leroy Johnson appeal the trial court's order granting the motion for summary judgment of the defendant-appellee University Hospitals of Cleveland. Mrs. Johnson suffered injuries when the stool on which she attempted to sit slid out from underneath her. Mrs. Johnson was in the emergency room examination area with her step-daughter who was receiving cancer treatment. Mrs. Johnson testified in her deposition that there was no defect in the stool; that there was no foreign substance on the tile floor; and that she knew the stool had wheels and that it moved on those wheels. Mrs. Johnson also testified that subsequent to her fall, a nurse entered the room. The nurse removed the stool, stating that it was not supposed to be there (T. 31). The appellant sets forth one assignment of error: THE TRIAL COURT ERRONEOUSLY GRANTED DEFENDANTS MOTION FOR SUMMARY JUDGMENT BECAUSE REASONABLE MINDS COULD CONCLUDE THAT THE HOSPITAL NEGLIGENTLY CREATED AN UNREASONABLE RISK OF HARM BY PLACING A STOOL IN WHICH ELDERLY INVITEES WOULD SIT ON A TILE FLOOR. The appellants argue that it was negligent of the hospital to place a stool, with rollers, in the emergency room examination area. The appellee contends that a stool with wheels is an open and obvious danger, and one which Mrs. Johnson should have been aware. Summary judgment is proper when there is no genuine issue as to any material fact; the moving party is entitled to judgment as a matter of law; and it appears from the evidence that reasonable -3- minds can come but to 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. Jones v. Chagrin Falls (1997), 116 Ohio App.3d 249, citing to State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317. In Crane v. Lakewood Hospital (1995), 103 Ohio App.3d 129 this court, citing to Campbell v. Hughes (1950), 153 Ohio St. 9 and Crampton v. Kroger Co. (1959), 108 Ohio App. 476, found that in order to exercise its duty of reasonable care towards persons visiting patients on its premises, a hospital must take into account that the aged and infirm as well as the young and robust will visit. In Crane, this court found that the hospital had a duty to exercise reasonable care in selecting a chair for the atrium that was not top heavy or likely to slide out from under a person bending over. There was an allegation in Crane that a hospital agent stated that the chair should not have been there, Crane at 136. This court found that when a property owner itself creates the hazardous condition which causes plaintiff's injury, plaintiff need not show the owner had knowledge or notice of the condition. This sensible rule follows because one who has created the condition is presumed to know what it created. Id. at 136. See, also, Baudo v. Cleveland Clinic Found. (1996), 113 Ohio App.3d 245; Bohme, Inc. v. Sprint Internatl. Communications Corp. (1996), 115 Ohio App.3d 723. -4- Sufficient evidence exists in the record upon which reasonable minds could differ. The appellants' assignment of error is well taken. Judgment reversed and remanded. -1- This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is ordered that appellants recover of appellee their costs herein taxed. It is ordered that a special mandate issue out of this Court directing said 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. ______________________________ TERRENCE O'DONNELL, P.J., Dissents, with dissenting opinion attached. 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74395 VERNEDA JOHNSON, ET AL. : : Plaintiffs-Appellants : : DISSENTING v. : : OPINION UNIVERSITY HOSPITALS OF CLEVELAND : : Defendant-Appellee : : DATE: NOVEMBER 5, 1998 JUDGE TERRENCE O'DONNELL, DISSENTING: I respectfully dissent from the majority opinion in this case. In my view, the danger posed by a wheeled stool is open and obvious, and any user knows or reasonably should know of its potential danger. As the majority opinion correctly points out, Johnson does not allege any defect in the stool, nor does she allege any defect in or foreign substance on the floor in the emergency room. The fact that Johnson was an invitee of University Hospitals when she sustained her injuries is not in dispute. The duty owed to an invitee by the owner of a premises is to exercise ordinary care and to protect the invitee by maintaining the premises in a safe condition. See Light v. Ohio University (1986), 28 Ohio St.3d 66, at 68. This duty is limited, however, by the doctrine of open and obvious hazards, as the court explained in Simmers v. Bentley Construction Co. (1992), 64 Ohio St.3d 642, at 644: The open and obvious doctrine states that an owner or occupier of property owes no duty to warn invitees entering the property of open and obvious dangers on the property. Sidle v. Humphrey (1968), 13 Ohio St.2d 45, at paragraph one of the syllabus; Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203. The rationale behind the doctrine is that the open and obvious nature of the hazard itself serves as a warning. Thus, the owner or occupier may reasonably expect that persons entering the premises will discover those dangers and take appropriate measures to protect themselves. -2- In this case, the characteristics of this stool are such that by its very nature, it is designed for mobility, and it consequently contains castors to permit it to be easily moved about. The potential danger this creates is inherent in the stool by design, and a user is advised of the nature of the hazard by observing the castors or wheels on the legs of the stool. Thus, the user is reasonably expected to discover this potential danger and avoid or protect against it. This is similarly true with other potentially dangerous objects such as kitchen knives which by design are sharp, kitchen blenders and garbage disposals which by design have cutting blades, and electric drills and electric mixers which by design contain rotating shafts. Further, articles of furniture, such as rocking chairs which by design permit movement, pose a potential source of danger, which a user is reasonably expected to discover and protect against. Johnson does not allege any physical defect in the stool or claim that University Hospitals has been negligent in maintaining it. Rather, Johnson's claim is that the stool itself creates an unreasonable hazard, thereby imposing a duty on University Hospitals to warn or protect invitees who may encounter it. University Hospitals, however, has no such duty in this case, because, by definition, the stool is constructed and designed providing mobility and access to the user. The stool is necessarily mobile in order to serve this purpose. Although it may be dangerous because of its rolling characteristic, an invitee may reasonably be expected to recognize the need for caution and -3- protect against such danger; the rolling nature of the stool itself serves as a warning. For these reasons, Johnson has failed to establish any duty on the part of University Hospitals to warn or protect invitees from this open and obvious hazard, which is a necessary element of her negligence action. Thus, in my view, after construing all the evidence most strongly in favor of Johnson, no genuine issues of material fact exist, and University Hospitals is entitled to .