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Daniels v.Thistledown Racing Club5/5/1995
PATTON, Chief Judge.
Plaintiff-employee Phyllis Ann Daniels worked as a groomer for a horse trainer at defendant Thistledown Racing Club, Inc. In addition to her salary, the trainer provided plaintiff a small room above one of the horse barns for use as sleeping quarters. During the evening of June 22, 1991, a jockey entered plaintiff's unlocked room as she slept and raped her. Plaintiff' filed this action against Thistledown, alleging Thistledown had permitted a hazardous condition to exist and further breached a statutory duty to provide a safe work place. Thistledown filed a motion for summary judgment in which it argued it had no duty to protect plaintiff from unforeseen criminal acts. The trial court granted the motion,
"The trial court erred in granting Defendant's Motion for Summary Judgment in that there are issues of material fact regarding the duty owed by the Defendant to the Plaintiff and the Defendant's breach of this duty."
In order to establish actionable negligence, a plaintiff must establish a duty owed her by defendants, breach of that duty, proximate cause of the injury, and an injury. Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142, 539 N.E.2d 614, 616-617; Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77, 15 OBR 179, 180-181, 472 N.E.2d 707, 710,
Plaintiff first argues that we should adopt Section 344 of the Restatement of the Law 2d, Torts (1965), and find that Thistledown owes her a duty based upon its act of opening its premises to the public.
Section 344 states:
"A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animal, and by the failure of the possessor to exercise reasonable care to "(a) discover that such acts are being done or are likely to be done, or "(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it."
Section 344 of the Restatement is inapplicable since plaintiff was not a member of the public who entered Thistledown for business purposes. She worked for a horse trainer, not Thistledown. The horse trainer paid her and gave her the use of a room at no charge. As a person who did not work for Thistledown, but had the right to enter the Thistledown premises, plaintiff had the status of a frequenter.
Under R.C. 4101.01(E), a "frequenter" is defined as "every person, other than an employee , who may go in or be in a place of employment under circumstances which render him other than a trespasser." The duty that an employer owes to a frequenter is set forth in R.C. 4101.11, which provides:
"Every employer shall furnish employment which is safe for the employees engaged therein, shall furnish a place of employment which shall be safe for the employees therein and for frequenters thereof, shall furnish and use safety devices and safeguards, shall adopt and use methods and processes, follow and obey orders, and prescribe hours of labor reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters."
The duty owed to frequenters "is no more than a codification of the common-law duty owed by an owner or occupier of premises to invitees, requiring that the premises be kept in a reasonably safe condition, and that warning be given of dangers of which
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