Berge v. Columbus Community Cable Access, No. 99AP-75 and 99AP-76.

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtCCCA cross-appeals, assigning the following errors
Citation136 Ohio App.3d 281,736 NE 2d 517
PartiesBERGE, Appellant, v. COLUMBUS COMMUNITY CABLE ACCESS et al., Appellees.
Decision Date23 December 1999
Docket NumberNo. 99AP-75 and 99AP-76.

136 Ohio App.3d 281
736 NE 2d 517

BERGE, Appellant,
v.
COLUMBUS COMMUNITY CABLE ACCESS et al., Appellees.
*

Nos. 99AP-75 and 99AP-76.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided December 23, 1999.


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Andrew J. Ruzicho and Andrew J. Ruzicho II; Robert D. Erney & Associates Co., L.P.A., and Jami S. Oliver, for appellant.

Joseph S. Streb Co., L.P.A., and Joseph S. Streb, for appellee and cross-appellant Columbus Community Cable Access.

Lane, Alton & Horst and Belinda S. Barnes, for appellee Myron S. Miller.

Janet E. Jackson, City Attorney, and Todd M. Rodgers, for appellee city of Columbus.

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PEGGY BRYANT, Judge.

Plaintiff-appellant, Jon Berge, appeals from a judgment of the Franklin County Common Pleas Court granting (1) a new trial to defendant-appellee, Columbus Community Cable Access, Inc. ("CCCA"), following a jury verdict of $550,000 for plaintiff on his claim of handicap discrimination against CCCA, (2) a directed verdict to defendant-appellee, Myron S. Miller, and (3) summary judgment to defendant-appellee, the city of Columbus.

As a result of a fall from a sixty-foot balcony in college years ago, plaintiff lost the use of his legs. His resulting paraplegia required, and continues to require, that he use a wheelchair. After resuming college in Ohio, plaintiff graduated with a degree in psychology from Wright State University and attempted to enroll in a graduate program at the Ohio State University in the fine-arts department. Plaintiff was denied admission into the program because of a weak art portfolio. In an effort to improve his portfolio, plaintiff took additional classes in the arts and computer graphics. He then moved to Columbus and began to take classes at CCCA in a further attempt to improve his art portfolio.

Pursuant to federal law, municipalities such as the city of Columbus can require cable television operators to set aside channels in their cable systems for public, educational, and governmental use, known as PEG channels. Section 531(b), Title 47, U.S.Code. The municipalities, known as franchising authorities, can then contract out the management of the PEG channels to outside sources. The city contracted with CCCA, a non-profit organization founded in 1980, to run the public access channel in Columbus. While CCCA manages and runs the channel, the channel itself is still owned by the cable operator.

The franchising authority may charge the cable operators a franchising fee of up to five percent of the cable operator's gross revenue to help operate the PEG channels. Section 542, Title 47, U.S. Code. In Columbus, the city charges cable operators three and one-half percent. The millions of dollars collected each year

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goes into a cable fund. Approximately eighty-five percent of CCCA's funding comes from the cable fund; for the year 1998, CCCA received more than $300,000. The remainder of the fund either goes to the other entities that run other PEG channels in Columbus or stays within the fund for the city to spend

CCCA manages Channel 21, the public access channel that Columbus has asked cable operators in the city to set aside for community-based programming. CCCA also teaches members of the public how to use studio technology to create their own television shows to air on Channel 21. Although CCCA is open to the members of the public, the public must register, pay a fee, take classes, and become certified before gaining access to CCCA's studio equipment.

Plaintiff began taking classes at CCCA in 1992. When plaintiff came to CCCA's building for an orientation, plaintiff could not find a wheelchair-accessible entrance. Because the required orientation was held in the basement of the building, an area of the building thirteen steps below the first floor, he was unable to attend the orientation.

Shortly after that trip to CCCA, plaintiff returned for a one-on-one orientation on the first floor of the building with Lucretia Nabb, the training coordinator of CCCA at that time. During the orientation, plaintiff was given a tour of the building, including the bathroom, where plaintiff noticed that the bathroom doorway was not wide enough for his wheelchair.

He was then taken to the studio and shown the stage, which was located in a lower level of the building. Nabb showed plaintiff a ramp going down to the stage, which plaintiff attempted to use. Because of the steep grade of the ramp, plaintiff fell forward, but he used his hands to stop his body from actually falling out of his wheelchair. After touring the stage area, plaintiff attempted to go up the ramp, but could not, due to its steep incline. Nabb ultimately had to push plaintiff up the ramp.

Although the building had a side entrance into the stage area, the path was blocked with moving curtains, cameras, props, and the stage itself. Even if plaintiff had been able to enter through that door, the unusable ramp provided the only access to the main level, where CCCA's offices were located. On leaving the building, plaintiff concluded that the building was not wheelchair-accessible.

A couple of months after his orientation, Nabb called plaintiff to inform him that a computer-graphics teaching position was open at CCCA. After attending some classes to determine whether he could teach the class, plaintiff applied for the position. Before he was offered the job, plaintiff was called to a meeting at CCCA to discuss his difficulties in getting into and working in the building. According to plaintiff, various employees of CCCA were at the meeting, as was Myron Miller, the landlord of the building. Plaintiff advised of various accommodations

136 Ohio App.3d 296
to assist him in gaining access to, and working in, the building. From the meeting plaintiff concluded that he would have to access the building from the main entrance, which had a flight of three steps going up to the front door and then another flight of three steps past the front door to CCCA's offices

Weeks after that meeting, plaintiff was offered the teaching job; he accepted the offer, and in June 1992, he began teaching one three-to-four-hour class one day of the week. On his first day of work, Nabb assisted plaintiff up the front entrance by bumping plaintiff up each step: Nabb held plaintiffs wheelchair from behind while tilting plaintiff back to lift his front wheels off the ground and up the steps. After working at CCCA for a while, plaintiff had to wait outside for an employee to assist him up the stairs, sometimes waiting for as long as fifteen to twenty minutes. At some point plaintiff was given a buzzer to use so an employee would know he was outside and would come to help him up the stairs. Throughout plaintiffs tenure as a teacher at CCCA, he complained to many about the lack of handicap accessibility to the building.

On November 7, 1995, Michael Staughter, an employee of CCCA, was helping plaintiff down the front steps of the building. Staughter began tilting plaintiffs wheelchair back to bump him down the steps when, as plaintiff explained, "we continued to go forward, I was tipped back, and I don't know exactly what happened, but we proceeded to go down very quickly, and I continued to go, continued to go back until I actually struck something." Plaintiffs right shoulder struck the ground, leaving a red mark on that shoulder. After the incident, plaintiff left for his car and went home. In the next week, however, plaintiff began to experience numbness in his right hand and pain in his right arm. Although plaintiff was able to teach that week, he never returned after that to his teaching job at CCCA. Plaintiff subsequently underwent two different surgeries to help alleviate health problems that occurred after his fall, including pain, numbness, and bladder-control problems.

By his complaint filed November 6, 1996, and his second amended complaint, plaintiff brought a variety of claims arising from his employment at CCCA and his fall on the steps of the CCCA building. Plaintiff named as defendants the city of Columbus, CCCA, Myron Miller, and Anthem Blue Cross & Blue Shield. Against the city of Columbus, plaintiff asserted claims of (1) handicap discrimination pursuant to R.C. 4112.02(G), (2) employer intentional tort, (3) breach of contract, and (4) violation of public policy. Against Miller, plaintiff alleged claims of (1) handicap discrimination pursuant to R.C. 4112.02(G), (2) negligence, (3) intentional tort, and (4) violation of public policy. Finally, against CCCA, plaintiff alleged claims of (1) handicap discrimination pursuant to R.C. 4112.99, (2) employer intentional tort, and (3) violation of public policy. Plaintiff sought damages for pain and suffering, loss of enjoyment of life, emotional distress,

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hospital and medical expenses, both past and future, lost earnings, both past and future, and...

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  • Bukta v. J.C. Penney Co., Inc., No. 4:02 CV 598.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • December 22, 2004
    ...policy when the tort claim is based solely on a Page 674 violation of O.R.C. § 4112.02. Berge v. Columbus Community Cable Access, 136 Ohio App.3d 281, 736 N.E.2d 517 (Ohio App. 10 Dist.1999); Barlowe v. AAAA International Driving School, Inc. 2003 Ohio 5748, 2003 WL 22429543 (Ohio App. 2 Di......
  • Cavins v. S & B Health Care, Inc., No. 26615.
    • United States
    • United States Court of Appeals (Ohio)
    • September 30, 2015
    ...v. Dillon, 58 Ohio St.3d 58, 61, 567 N.E.2d 1291 (1991). (Other citations omitted.) Accord Berge v. Columbus Community Cable Access, 136 Ohio App.3d 281, 315, 736 N.E.2d 517 (10th Dist.1999).{¶ 114} As was previously noted, the transcript of the jury instruction conference was not recorded,......
  • Bobb Forest Products v. Morbark Industries, No. 01 BA 25.
    • United States
    • United States Court of Appeals (Ohio)
    • September 30, 2002
    ...a promise is made, but who is not a party to the contract encompassing the promise." Berge v. Columbus Community Cable Access (1999), 136 Ohio App.3d 281, 303, 736 N.E.2d 517. In Hill v. Sonitrol of Southwestern Ohio (1988), 36 Ohio St.3d 36, 40, 521 N.E.2d 780, the Ohio Supreme Court adopt......
  • Fitness Experience v. Tfc Fitness Equipment, No. 1:03 CV 2314.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • December 17, 2004
    ...her employer a duty to act `in the utmost good faith and loyalty toward his ... employer.'" Berge v. Columbus Community Cable Access, 136 Ohio App.3d 281, 326, 736 N.E.2d 517 (Ohio App.1999) (quoting Connelly v. Balkwill, 160 Ohio St. 430, 440, 116 N.E.2d 701 (1954)). Ordinarily, this duty ......
  • Request a trial to view additional results
96 cases
  • Bukta v. J.C. Penney Co., Inc., No. 4:02 CV 598.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • December 22, 2004
    ...policy when the tort claim is based solely on a Page 674 violation of O.R.C. § 4112.02. Berge v. Columbus Community Cable Access, 136 Ohio App.3d 281, 736 N.E.2d 517 (Ohio App. 10 Dist.1999); Barlowe v. AAAA International Driving School, Inc. 2003 Ohio 5748, 2003 WL 22429543 (Ohio App. 2 Di......
  • Cavins v. S & B Health Care, Inc., No. 26615.
    • United States
    • United States Court of Appeals (Ohio)
    • September 30, 2015
    ...v. Dillon, 58 Ohio St.3d 58, 61, 567 N.E.2d 1291 (1991). (Other citations omitted.) Accord Berge v. Columbus Community Cable Access, 136 Ohio App.3d 281, 315, 736 N.E.2d 517 (10th Dist.1999).{¶ 114} As was previously noted, the transcript of the jury instruction conference was not recorded,......
  • Bobb Forest Products v. Morbark Industries, No. 01 BA 25.
    • United States
    • United States Court of Appeals (Ohio)
    • September 30, 2002
    ...a promise is made, but who is not a party to the contract encompassing the promise." Berge v. Columbus Community Cable Access (1999), 136 Ohio App.3d 281, 303, 736 N.E.2d 517. In Hill v. Sonitrol of Southwestern Ohio (1988), 36 Ohio St.3d 36, 40, 521 N.E.2d 780, the Ohio Supreme Court adopt......
  • Fitness Experience v. Tfc Fitness Equipment, No. 1:03 CV 2314.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • December 17, 2004
    ...her employer a duty to act `in the utmost good faith and loyalty toward his ... employer.'" Berge v. Columbus Community Cable Access, 136 Ohio App.3d 281, 326, 736 N.E.2d 517 (Ohio App.1999) (quoting Connelly v. Balkwill, 160 Ohio St. 430, 440, 116 N.E.2d 701 (1954)). Ordinarily, this duty ......
  • Request a trial to view additional results

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