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Wilson v. Red Roof Inns12/11/1997
Q: Okay. And do you recall seeing that sign or those words when you used the tub on the prior occasion?
A: Yes.
Q: Okay. What did you think that sign meant?
A: What it says, step down.
Q: Okay. Let's get back to what actually happened and how you were injured.
A: I stepped out of the tub. The floor didn't it didn't it happened real quick. I stepped out and I misjudged, I did something. The floor wasn't where it should be. I fell.
The foregoing testimony proves appellee fulfilled its duty to warn its patrons because appellant was aware of the unusual nature of the construction of the bathroom. Appellant's knowledge of the conditions in the bathroom relieved appellee of any further duty toward her. Raflo v. Losantiville Country Club (1973), 34 Ohio St.2d 1; Centers v. Leisure Internatl., Inc. (1995), 105 Ohio App.3d 582; Society National Bank v. Italian Made, Inc. (Aug. 18, 1994), Cuyahoga App. No. 66169, unreported.
As the court stated in Paul v. Uniroyal Plastics Co., supra at 284:
Appellee only has the duty to protect invitees from known dangers which are unknown to the invitee. * here is no basis for finding that appellee's knowledge was superior to appellant's.
Appellant argues her prior use of the bathtub unit should not be held to charge her with knowledge of the danger posed by it. Appellant cites Shaw v. Cent. Oil Asphalt Corp. (1981), 5 Ohio App.3d 42 in support of her contention. After a review of Shaw, this court finds it unpersuasive since the Shaw court relied upon appellate cases to support its decision in the face of Ohio Supreme Court decisions to the contrary. S.Ct.R.Rep.Op. 1(B).
Appellant also argues the doctrine of comparative negligence precludes summary judgment in this case. However, this argument was not presented in the trial court, hence, it is waived for purposes of appeal. See, e.g., Huebner v. Miles, supra.
Nevertheless, appellant's argument is unavailing since the question of comparative negligence is never reached if appellant cannot demonstrate appellee breached its duty toward her. See, e.g., Anderson v. Ruoff, supra; cf., Guilford v. Central Hardware Co. (1989), 62 Ohio App.3d 58.
The evidence proved appellant could not maintain her action in negligence since she could not show appellee breached any duty toward her. No genuine issue of material fact remained in this case, therefore, the trial court did not err in granting appellee's motion for summary judgment. Wing v. Anchor Media Ltd., of Texas (1991), 59 Ohio St.3d 108.
Accordingly, appellant's first assignment of error is also overruled.
The judgment of the trial court is affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Common Pleas 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 McMONAGLE, P.J., AND LEO SPELLACY, J., CONCUR. JUDGE KENNETH A. ROCCO
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