Eller v. Wendy's Internatl., Inc.

• Decision Date: 29 September 2000
• Docket Number: No. 99AP-1273.,99AP-1273.
• Citation: 142 Ohio App.3d 321,755 NE 2d 906
• Parties: ELLER, Appellant, v. WENDY'S INTERNATIONAL, INC., Appellee.
• Court: Ohio Court of Appeals

142 Ohio App.3d 321

755 NE 2d 906

ELLER, Appellant, v. WENDY'S INTERNATIONAL, INC., Appellee.^*

No. 99AP-1273.

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

September 29, 2000.

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Michael Garth Moore, for appellant.

Mazanec, Raskin & Ryder Co., L.P.A., and Edwin J. Hollern, for appellee.

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PETREE, Judge.

Plaintiff, Audrey Eller, appeals from a judgment of the Franklin County Court of Common Pleas in favor of defendant, Wendy's International, Inc. On appeal, plaintiff advances six assignments of error for this court's review:

The trial court erred in not granting a motion for a mistrial after counsel for defendant-appellee had injected improper references to Mrs. Eller's past and pending litigation in his opening statement and in examination of Mrs. Eller.

The trial court erred in allowing counsel for defendant-appellant sic to examine Dr. Murphy on the alleged claim that Mrs. Eller suffers from `compensation neurosis.'

The trial court erred in excluding the testimony of Gerald Burko.

The trial judge's conduct elicited passion and prejudice against Mrs. Eller among the jurors.

The trial court erred in refusing to charge the jury on the issue of future impaired earning capacity.

The trial court erred in submitting to the jury the issue of comparative negligence."

In November 1996, plaintiff, a California resident, was in Columbus attending to personal business. While in Columbus, plaintiff stayed at the home of her seven-year-old grandson, David, and his mother, plaintiff's former daughter-inlaw, Diane Caplinger. At approximately 12:30 p.m. on November 24, 1996, plaintiff, David, and Caplinger entered the Wendy's restaurant located at 1920 Stringtown Road in Grove City. Because the restaurant was somewhat crowded, plaintiff and David sat at a table while Caplinger waited in line to order lunch. While waiting for the food to arrive, plaintiff decided to take David to get some napkins. As plaintiff and David walked toward the condiment stand, plaintiff stepped from a carpeted area of the floor onto a portion of the floor covered by ceramic tile. After walking approximately two or three steps on the tiled area, plaintiff slipped and fell on her right knee. Immediately after she fell, plaintiff felt discomfort in her right knee. Caplinger saw plaintiff fall and walked over to assist her. Another customer and one of defendant's employees, John Wilson, helped plaintiff to her feet.

Plaintiff testified that she did not observe any foreign substance (water, grease, soda, food, etc.) on the tiled area prior to her fall. Plaintiff further testified that she did not notice anyone mopping the floor prior to the fall, nor did she see any "caution" signs indicating that the floor was wet or otherwise hazardous. Plaintiff further testified that she had "no idea" how she fell, but described the fall as "just like hitting a skating rink. It was just very, very slippery. There was something very slippery that made me fall."

A few minutes after the fall, plaintiff noticed Wilson and another of defendant's employees looking, alternately, from her to the area of the floor where she had fallen. After a short discussion, the two men walked away and disappeared through a door in the back of the restaurant. Plaintiff and David then sat down at the table and waited for Caplinger to return with the food. A few minutes later, Wilson approached plaintiff's table and asked whether she was all right. He told plaintiff that a little boy had also fallen in the same area, but did not indicate whether the fall had occurred on the same day. No employee other than Wilson spoke to plaintiff that day. Plaintiff testified that she did not seek out a manager to report the incident because she knew that Wilson was aware of what had happened.

After finishing lunch, plaintiff, David, and Caplinger returned to Caplinger's home. Plaintiff testified that, for the next few days, her knee was swollen and painful; however, she did not contact defendant to report the incident. Five days after the fall, she returned to her home in California. Over the next few weeks, her knee continued to hurt. Believing that defendant should be responsible for paying for a medical consultation with regard to her injured knee, plaintiff called the Stringtown Road restaurant on December 21, 1996, identified herself, said she had fallen in the restaurant on November 24, 1996, and asked permission to send the bill to defendant. According to plaintiff, the manager with whom plaintiff spoke, Scott Hood, told plaintiff that "we must have been washing the floor. The cones were up. We have no liability." When she asked him what he meant by the word "cones," he hung up.

Having not received a satisfactory response from Hood, plaintiff called defendant's corporate headquarters on December 31, 1996, and spoke to a claims representative. Plaintiff again explained her situation and requested that defendant pay for a medical consultation. The claims representative told plaintiff that she would hear from someone within ten days. Before the expiration of the tenday period, however, plaintiff decided that she could not wait any longer to see a physician. Accordingly, she made an appointment with an orthopedic specialist. According to plaintiff, no one representing defendant ever called her back.

Plaintiffs initial consultation with the orthopedic specialist, Dr. David G. Smith, was on January 13, 1997. Dr. Smith ordered an MRI and prescribed pain medication and physical therapy. Plaintiff continued the pain medication and physical therapy until May 1997, at which time she underwent arthroscopic surgery on her right knee. Due to complications from the surgery, she was hospitalized in June 1997. After her release from the hospital, she again underwent physical therapy. On July 27, 1997, her knee buckled as she walked into her kitchen. She fell to the floor, hitting both knees and left shoulder. As a result of the fall, plaintiff suffered a rotator cuff tear of her left shoulder.

Caplinger testified that she observed plaintiff slip and fall down on her knee as plaintiff walked across the tiled portion of defendant's dining room floor. She further testified that she did not notice anything visible on the floor that would have caused plaintiff to believe that the floor might be slippery. In an effort to determine what precipitated plaintiffs fall, Caplinger touched the floor with her fingers a few inches to the right of where plaintiff had fallen. Caplinger described the floor as feeling "slimy" and "greasy," "like if you fry something on the stove and you clean it up, and you wipe it down, and you wipe your fingers on it, you can feel the grease on it." She further testified that a large area of the floor was in this condition. Caplinger also stated that she noticed a "skid mark" in the area where plaintiff had fallen, "like a tennis shoe dragged through it." After plaintiff got to her feet, Caplinger helped her walk to the table. Shortly thereafter, Wilson approached the table and asked if plaintiff was all right. Caplinger told Wilson that the floor was slippery. Wilson told the two women that someone else had fallen there; however, he did not indicate whether the fall to which he referred had occurred the same day.

Scott Hood was the manager of the Stringtown Road restaurant on November 24, 1996. Hood testified that, as manager of the restaurant, he received training in the maintenance of the restaurant premises. As part of his management training, he received a copy of defendant's "Operational Procedures Manual" ("procedures manual") and a videotape on proper floor cleaning. As manager of the restaurant, Hood is responsible for training employees in proper floor-cleaning procedures. Hood further testified that a manager is supposed to walk through the dining room every fifteen minutes to ensure that the restaurant is free from potential hazards.

Hood further testified that, according to defendant's floor-cleaning procedures, any employee who observes a foreign substance on the floor is permitted to clean it up—whether the employee sweeps or mops the substance is left to the discretion of that employee. Hood acknowledged that substances such as water, oil, or grease tracked in from outside on customers' shoes would typically be caught on the carpeted area inside the entrance to the restaurant and, if not caught, would be visible on the floor.

Hood testified that the floor-cleaning instructions outlined in the procedures manual require the positioning of "Caution: Wet Floor" signs in the event the tile in the dining room is "dry-mopped" during business hours. Hood further acknowledged that the instructions regarding the posting of the "Caution: Wet Floor" signs are outlined in red in the manual, indicating that such procedures must be followed strictly in order to minimize the risk of someone being injured.

Hood explained that spills occurring during business hours are "dry-mopped," a procedure involving dipping the mop into a bucket of clean water, wringing the mop out until it is almost dry, then using the "dry" mop to clean the floor. No grease-cutting agent is used as part of the "dry-mopping" procedure. Hood acknowledged that if oil spilled on the floor was not "dry-mopped" properly, some of the oil might be left on the floor after the spill, which, in turn, could leave a slippery surface; however, he testified that he had never encountered such a situation during his tenure as manager of the restaurant.

Hood further testified that the December 21, 1996 telephone conversation with plaintiff was his first notification that she had fallen in the restaurant. He further testified that he remembered telling her that the "cones" were up. Finally, Hood admitted that he did not report the telephone call to either his supervisor or defendant's customer injury "hot line."

John Wilson...