Background
Yolanda Oliver alleged that she fell while crossing a McDonald’s drive-thru lane in Cincinnati in October 2017. The parking lot was wet from intermittent rain, and Oliver testified that her cane slipped on the painted word “thru.” Cobco Enterprises and Pickard Enterprises owned the premises, while Proline Striping Service had painted the parking lot several months earlier.
Oliver sued in 2022, alleging negligent maintenance and creation of a dangerous condition. She claimed an unidentified McDonald’s employee told her after the fall that someone had recently suffered a similar incident. Her expert, David Collette, opined that Proline’s use of traffic-marking paint over a large area without an added slip-resistant product created a dangerous wet-surface condition and likely caused Oliver’s fall.
The Court’s Holding
The First District affirmed summary judgment for Cobco and Pickard. Oliver’s account of the unidentified employee’s statement was inadmissible hearsay because she did not establish the speaker’s identity, employment status, authority, or that the statement concerned a matter within the scope of employment. Without admissible evidence that the premises owners created the hazard, knew of it, or should have known of it, Oliver could not establish a genuine issue of fact on notice.
The court reversed summary judgment for Proline. The open-and-obvious doctrine concerns a landowner’s or occupier’s duty to entrants and does not independently shield a contractor that creates a dangerous condition. Because the trial court never expressly excluded Collette’s opinions after the Daubert hearing, those opinions remained in the record. Viewed in Oliver’s favor, they created a factual dispute over whether Proline negligently painted the surface and caused her injuries.
Key Takeaways
- An unidentified purported employee’s statement cannot establish a party-opponent admission without a foundation tying the speaker and statement to the employer.
- The open-and-obvious doctrine does not provide a standalone defense to an independent contractor that allegedly created a dangerous condition.
- At summary judgment, disputes over the weight and credibility of otherwise-record expert opinions are for the factfinder.
Why It Matters
The decision separates premises-liability principles from ordinary negligence claims against contractors. A property owner may prevail when the plaintiff lacks admissible proof of notice, but a contractor may still face trial based on evidence that its work created the alleged hazard.
It also underscores the importance of obtaining an express ruling excluding expert evidence. Absent such an order, an expert’s opinions may remain available to defeat summary judgment.