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Graham v. Ceder Point Inc.12/31/1997
7-928. Thus, where water accumulates because it is tracked in by patrons, Rayburn v. J.C. Penney Outlet Store (1982), 3 Ohio App.3d 463, 466, 3 OBR 544, 547, 445 N.E.2d 1167, 1170, or accumulates in a place where it would normally be expected (swimming pool locker room) Tarescavage v. Meridian Condominium, Inc. (May 12, 1994), Cuyahoga App. No. 65446, unreported, 1994 WL 189163, liability would not ordinarily attach.
In his opening statement, appellant asserted that testimony would be presented showing that the water was neither open nor obvious. Nevertheless, appellant admitted that he could not with certainty prove the source of the water upon which he slipped or the length of time it had been on the step. Ordinarily this admission would be fatal to appellant's case, as he could not show that the defendant had created the hazard or was, or should have been, aware of it. However, in this case, water was only one of two separate causes that appellant alleged were responsible for his fall. Appellant's other allegation was that appellee caused the step to be unreasonably hazardous by painting over thsrough concrete, creating a slick surface which the concrete would not have possessed in its normal state. This condition created by appellee, appellant alleged, became unreasonably slippery when combined with the ubiquitous water from the lake and the nearby water theme park. Water, then, was only a catalyst for the dangerous condition of the step created by painting and improper maintenance.
Construing this allegation liberally in favor of appellant, we conclude that a trier of fact could reasonably find that a defendant's improper maintenance of a nonslip surface could create a latent defect and breach the required duty of care. Consequently, appellant has stated facts which constitute negligence, and the trial court's decision to direct a verdict against him was improper. Accordingly, appellants' single assignment of error is found well taken.
On consideration whereof, the judgment of the Erie County Court of Common Pleas is reversed. This matter is remanded to the court for further proceedings consistent with this opinion. It is ordered that appellee pay the court costs of this appeal.
Judgment reversed.
Glasser and Knepper, JJ., concur. __________________________ Footnotes:
1. Donald Graham's wife is also an appellant by virtue of a lossofconsortium claim. In the interest of clarity, we will refer only to Donald Graham as appellant.
2. The appellee is a limited partnership, rather than a corporation; however, appellee raises no issue on this point.
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