Yahn v. Mahoning Nat. Bank

• Decision Date: 05 January 1982
• Citation: 4 Ohio App.3d 172,446 N.E.2d 1132
• Parties: , 4 O.B.R. 273 YAHN, Appellant, v. MAHONING NATIONAL BANK, Appellee. *
• Court: Ohio Court of Appeals

Page 172

4 Ohio App.3d 172

446 N.E.2d 1132, 4 O.B.R. 273

YAHN, Appellant, v. MAHONING NATIONAL BANK, Appellee. ^*

Court of Appeals of Ohio, Seventh District, Mahoning County.

Jan. 5, 1982.

Syllabus by the Court

In a negligence action for injuries received by plaintiff due to the wet and slippery condition of the floor at a bank, it was error for the trial court to grant defendant's motion for judgment notwithstanding the verdict where there was a jury question on the foreseeability of water on the area of the floor in question at the bank at the time of the accident. (Boles v. Montgomery Ward & Co., 153 Ohio St. 381, 92 N.E.2d 9 , and S.S. Kresge Co. v. Fader, 116 Ohio St. 718, 158 N.E. 174, distinguished.)

William B. Hewitt, Akron, and Leda C. Hartwell, Columbus, for appellant.

William D. Keast, Youngstown, for appellee.

LYNCH, Presiding Judge.

Plaintiff is appealing the judgment of the court of common pleas which sustained the motion of defendant for judgment notwithstanding the verdict of the jury in favor of plaintiff against defendant for $100,000 or in the alternative granting defendant's motion for a new trial.

Plaintiff's complaint was that on Tuesday, November 26, 1974, while a patron of defendant's Cornersburg branch bank, she slipped and fell on the floor at such bank, which was in a wet and slippery condition, as a result of which she suffered an undisplaced fracture of her left hip.

Plaintiff's testimony was that Tuesday morning, November 26, 1974, was a bright, sunny winter day; that prior to 8:00 a.m., a half-inch of snow had fallen but by 10:45 a.m. some of the snow had melted; that there was snow and slush in the parking lot near defendant's Cornersburg branch bank; that plaintiff entered the bank and walked to the last bank teller to transact her banking business; that there was a three-foot wide rubber mat in front of the tellers' cages; that the rubber mat was blocked by other customers; that she walked off the rubber mat onto the asphalt tile floor of the lobby of the bank; that after taking a few steps, her leg slipped out from under her; that she fell on the asphalt tile floor; that while she was lying on the floor, she reached for her purse; that her right hand got wet from water on the floor; that her purse, coat and slacks were wet; that she had not seen any water on the asphalt tile floor before she fell; and that as a result of this fall plaintiff suffered an undisplaced fracture of her left hip.

The evidence established that during the period that subject accident occurred, every Tuesday morning between 9:00 and 11:00 a.m., subject branch bank of defendant set up a desk with one or more chairs in the area of the lobby, where this occurred, for the purpose of servicing between five and ten merchants handling Ohio lottery tickets. The merchants would stand or sit in front of this desk from twelve to fifteen minutes while a bank employee checked their lottery returns and issued new lottery tickets. A bank employee was servicing a merchant for lottery purposes at the time that plaintiff fell in the vicinity of subject desk in the lobby.

The manager of defendant's Cornersburg branch testified that the presence of puddles of water on the bank floor would be dangerous because patrons of the bank could very easily slip and fall on such puddles of water; that to prevent such an occurrence the bank had mats on the floor at the entrance to the bank, on the area to the tellers' cages and the entire length of the area in front of the tellers' cages. However, there were no mats of any kind around the desk servicing the lottery customers at the time of subject accident.

Defendant's witnesses, who were present when subject accident occurred, testified that they did not see any water in the area of the floor where plaintiff fell.

Plaintiff's only assignment of error is that the trial court erred in granting judgment for the defendant on its motion for judgment notwithstanding the verdict and/or in the alternative granting the motion of defendant for a new trial.

The trial court, in granting defendant's motion for judgment notwithstanding the verdict, found that plaintiff failed to produce sufficient evidence to prove that defendant was negligent in any particular.

The second paragraph of the syllabus of Boles v. Montgomery Ward & Co. (1950), 153 Ohio St. 381, 92 N.E.2d 9 , is as follows:

"Ordinarily, no liability attaches to a store owner or operator for injury to a patron who slips and falls on the store floor which has become wet and slippery by reason of water and slush tracked in from the outside by other patrons."

In the Boles case, the court stated, in pertinent part, at page 384, 92 N.E.2d 9, as follows:

"Cases of this type sometimes involve narrow distinctions and a decision in each case depends largely on the facts of the particular case."

In Presley v. Norwood (1973), 36 Ohio St.2d 29, 303 N.E.2d 81 , the court stated, in pertinent part, at page 31, 303 N.E.2d 81, as follows:

"The duty owed by a proprietor to his business invitees is one of ordinary care to insure their safety. S.S. Kresge Co. v. Fader (1927), 116 Ohio St. 718, 158 N.E. 174. This duty has been more particularly defined as it applies to differing fact patterns. Where, as here, injury arises from a 'SLIP AND FALL' DUE TO A HAZARDOUS CONDITION not created by the proprietor or his employees, the rule is clear. In such cases, the plaintiff must show that the defendant had, or in the exercise of ordinary care should have had, notice of the hazard for a sufficient time to enable him, in the exercise of ordinary care, to remove it or warn patrons about it."

Civ.R. 50(A)(4) provides as follows:

"When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is...