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Graham v. Ceder Point Inc.12/31/1997
SHERCK, Judge.
This is an appeal from a directed verdict rendered by the Erie County Court of Common Pleas after opening statements were given in a negligence trialsBecause we conclude that the trial court improperly found that plaintiff failed to set forth facts which might entitle him to a judgment in his favor, we reverse.
Appellant, Donald F. Graham,(fn1) was a regular summer visitor to the Cedar Point Amusement Park operated by appellee, Cedar Point, L.P.(fn2) On July 20, 1992, appellant slipped and fell on some wet concrete stairs at the Breakers Hotel, which is located in the park on Lake Erie beachfront property. As a result of this fall, appellant suffered injuries and sued the park for money damages.
When this case was first tried, the jury was unable to agree on a verdict and the court declared a mistrial. This appeal concerns the outcome of the second trial.
In the second trial, appellant stated his theory of the case in his complaint and opening statement. Appellant asserted that be was a business invitee and, therefore, appellee had the duty to take reasonable care to keep its premises safe for him and to warn him of latent dangerous conditions. When appellee painted the hotel's concrete steps, appellant argued, it created a surface which would be unusually slick when covered with water from the lake or the nearby water theme park. Appellant stated that appellee virtually conceded this fact when it initially embedded sand in the paint as an abrasive nonslip material. However, a dangerous condition was created, according to appellant, when appellee painted over the abrasive surface so many times that the surface lost its nonslip properties. This constituted a breach of appellee's duty of reasonable care and, combined with the water normally present in the area, was the proximate cause of appellant's fall and his injuries, according to appellant.
Alternatively, appellant argued that appellee might have been responsible for the presence of the water because the accident occurred near a time during which appellee normally mopped the steps. However, during opening statements at the second trial, appellant's counsel conceded that he could not positively identify the source of the water upon which appellant slipped or the length of time it had been on the steps.
Following opening statements, the court held a conference out of the presence of the jury. In that conference, the trial judge pointedly asked appellee's counsel if he had any motions. Appellee's counsel argued a pending motion in limine to exclude what he asserted was speculative testimony concerning the source of thswater. The judge again asked appellee's counsel if he had any motion specifically relating to opening remarks. When appellee's counsel continued to discuss the in limine motion, the court specifically asked if he might be interested in putting forth a motion for a directed verdict pursuant to Civ.R. 50(A). To this, appellee's counsel responded, "Yeah. Well, we already hadyeah * * *." While the court permitted appellant to argue against the motion, it ultimately sustained it, concluding that appellant had failed to make out the elements of negligence. Then, citing what it said was a Third Circuit rule, the court permitted appellant to reopen his opening statement. At the conclusion of this second opening statement, the court again sustained the motion for a directed verdict.
Appellant now appeals, setting forth the following single assignment of error:
"The Trial Court, Hon. Robert Walker, sitting by designation, erred in directing a verdict after' the conclusion of opening statements in this personal inju
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