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Wilson v. Red Roof Inns12/11/1997
cludes maintaining the premises in a reasonably safe condition and warning an invitee of latent or concealed defects of which the possessor has or should have knowledge. Id. However, it is also well-established that balanced against this duty, the owner of premises in not to be held as an insurer against all forms of risk. S.S. Kresge Co. v. Fader (1927), 116 Ohio St. 718, 158 N.E. 174. Baldauf v. Kent State Univ. (1988), 49 Ohio App.3d 46 at 47-48. (Emphasis added.) See, also, Paul v. Uniroyal Plastics Co. (1988), 62 Ohio App.3d 277; Anderson v. Ruoff (1995), 100 Ohio App.3d 601.
It is only where it is shown that the owner had superior knowledge of the particular danger which caused the injury that liability attaches, because in such a case the invitee may not reasonably be expected to protect himself from a risk he cannot fully appreciate. LaCourse v. Fleitz (1986), 28 Ohio St.3d 209, 210. (Emphasis added.)
Appellant presented expert testimony in the form of Mr. Burko's report that the raised floor of the bathtub unit in relation to the floor of the bathroom constituted a danger. The evidence in the record revealed, however, that appellee was aware of this danger and took steps to warn its patrons. Appellee's corporate counsel Mr. Fulton stated in his affidavit the following:
5. According to corporate records, STEP DOWN labels with red lettering were installed on all of these units beginning in 1983.
6. According to corporate records, grab bars were installed on the units at the Red Roof Inn in Middleburgh (sic) Heights, Ohio in or before 1989.
Appellant argued these steps were inadequate, citing Mr. Burko's conclusions contained in his report. However, appellant could not prove the essence of her claim that appellee breached its duty toward her because her deposition testimony proved she saw the sign posted by appellee and was aware of the danger. Appellant stated the following:
Q. Okay. Had you used the tub or shower prior to the time you used it when you fell?
A. Yes.
Q. How many times?
A. Once.
Q. On the time that you used it prior to the time when you fell, did you notice anything different about it?
A. It seemed kind of odd.
Q. Did you make any comments about that to anyone?
A. I did. Yes, I did.
Q. To whom did you speak?
A. I just made a quick comment to my daughter.
Q. Did either your husband or your daughter also notice anything out of the ordinary about this setup?
A. I don't know. I thought it was out of the ordinary. I don't know what they thought.
Q. Okay. What was the surface of the tub like, inside the tub like; was it a smooth surface?
A. No.
Q. Could you describe the surface.
A. Like a little grit to it or something.
Q. When you got into the tub, do you recall noting anything unusual about the construction or setup of this tub or bathroom?
A: I thought it was a little odd.
Q: Do you remember what you thought was odd about it?
A: Just different. The sign, I don't know.
Q: Okay. When you say the sign, what are you referring to?
A: Step down.
Q: Were there any other signs or notices of any sort inside the bathroom?
A: Not that I recall.
Q: Okay. But these red letters that say step down on the edge of the tub, do you recall seeing those?
A: Yes I do.
Q: Do you recall seeing those on your way into the tub or shower.
A: Yes.
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