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Davenport v. M/I Schottenstein Homes7/28/1993
Per Curiam.
Plaintiff-appellant Thomas A. Davenport was employed as an electrician by C & H Electric Company ("C & H"). C & H contracted with defendant-appellee M/I Schottenstein Homes, Inc. ("Schottenstein") for the installation of electrical service and wiring in new homes constructed by Schottenstein in the Beckett Ridge development. Davenport worked on a home in the development for a full day, "roughing in" the electrical wiring. "Roughing in" consists of drilling holes in the studs, pulling the wire through the holes, and installing light switches and electric boxes. On a trip to the basement, Davenport observed that the basement floor was covered with about four inches of water which had accumulated due to rainfall. Davenport overheard a conversation between his employer and a representative of Schottenstein concerning pumping the water out of the basement. Davenport stated that Schottenstein's representative promised to have the water pumped out of the basement. No indication was given as to when the water would be pumped out. Davenport knew that the wiring for the sump pumps had not yet been installed.
The next day, May 15, 1990, Davenport and another worker returned to the house to finish the wiring. Davenport went down to the basement to thread wire through the floor joists. The basement steps consisted of stair stringers without handrails. Davenport made about ten trips up and down the steps that morning, tracking water from the basement onto the steps. On his first trip to the basement after lunch, Davenport descended about five steps, slipped and fell down the stairs, sustaining injuries.
Davenport filed the within complaint for personal injuries and economic loss, alleging that Schottenstein had violated R.C. 4101.11, the frequenter statute. Schottenstein filed a motion for summary judgment which the trial court granted. Davenport timely appealed.
In the case sub judice, the water had accumulated in the basement due to rainfall, not through any action on the part of Schottenstein. Such an accumulation of rain water would not be unexpected on a construction site. It is clear from Davenport's deposition that he was fully aware of the water in the basement. In addition, he created the dangerous condition on the stairs by tracking water up and down on his trips to and from the basement on the morning of his fall. Davenport admitted in his deposition that the water he tracked onto the stairs caused his fall.
Davenport's fall resulted from the open and obvious condition of the wet stairs, a condition of which he was fully aware and, in fact, created. Schottenstein had no duty to protect Davenport from or warn him of a condition so open and obvious that he discovered it and, therefore, could reasonably have been expected to protect himself from it.
Davenport argues that the trial court erred in failing to apply the syllabus of Cremeans v. Willmar Henderson Mfg. Co. (1991), 57 Ohio St.3d 145, 566 N.E.2d 1203, which holds:
"An employee does not voluntarily or unreasonably assume the risk of injury which occurs in the course of his or her employment when that risk must be encountered in the normal performance of his or her required job duties and responsibilities."
Cremeans is a products liability case involving strict liability in tort. The defendant, Willmar Henderson Manufacturing Co., manufactured a front-end loader without a protective cage for the operator. Cremeans's job required him to drive the loader into a bin filled with fertilizer, retrieve the load and back the loader out of the bin. The loader would not fit into the bin with a protective cage. Cr
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