Berge v. Columbus Community Cable Access (136 Ohio App. 3d 281, 1999)

Peggy Bryant, Judge.

Plaintiff-appellant, Jon Berge, appeals from a judgment of the Franklin County Common Pleas Court granting (1) a new trial to defendant-appellee, Columbus Community Cable Access, Inc. (“CCCA”), following a jury verdict of $550,000 for plaintiff on his claim of handicap discrimination against CCCA, (2) a directed verdict to defendant-appellee, Myron S. Miller, and (3) summary judgment to defendant-appellee, the city of Columbus.

As a result of a fall from a sixty-foot balcony in college years ago, plaintiff lost the use of his legs. His resulting paraplegia required, and continues to require, that he use a wheelchair. After resuming college in Ohio, plaintiff graduated with a degree in psychology from Wright State University and attempted to enroll in a graduate program at the Ohio State University in the fine-arts department. Plaintiff was denied admission into the program because of a weak art portfolio. In an effort to improve his portfolio, plaintiff took additional classes in the arts and computer graphics. He then moved to Columbus and began to take classes at CCCA in a further attempt to improve his art portfolio.

Pursuant to federal law, municipalities such as the city of Columbus can require cable television operators to set aside channels in their cable systems for public, educational, and governmental use, known as PEG channels. Section 531(b), Title 47, U.S.Code. The municipalities, known as franchising authorities, can then contract out the management of the PEG channels to outside sources. The city contracted with CCCA, a non-profit organization founded in 1980, to run the public access channel in Columbus. While CCCA manages and runs the channel, the channel itself is still owned by the cable operator.

The franchising authority may charge the cable operators a franchising fee of up to five percent of the cable operator’s gross revenue to help operate the PEG channels. Section 542, Title 47, U.S. Code. In Columbus, the city charges cable operators three and one-half percent. The millions of dollars collected each year goes into a cable fund. Approximately eighty-five percent of CCCA’s funding comes from the cable fund; for the year 1998, CCCA received more than $300,000. The remainder of the fund either goes to the other entities that run other PEG channels in Columbus or stays within the fund for the city to spend.

CCCA manages Channel 21, the public access channel that Columbus has asked cable operators in the city to set aside for community-based programming. CCCA also teaches members of the public how to use studio technology to create their own television shows to air on Channel 21. Although CCCA is open to the members of the public, the public must register, pay a fee, take classes, and become certified before gaining access to CCCA’s studio equipment.

Plaintiff began taking classes at CCCA in 1992. When plaintiff came to CCCA’s building for an orientation, plaintiff could not find a wheelchair-accessible entrance. Because the required orientation was held in the basement of the building, an area of the building thirteen steps below the first floor, he was unable to attend the orientation.

Shortly after that trip to CCCA, plaintiff returned for a one-on-one orientation on the first floor of the building with Lucretia Nabb, the training coordinator of CCCA at that time. During the orientation, plaintiff was given a tour of the building, including the bathroom, where plaintiff noticed that the bathroom doorway was not wide enough for his wheelchair.

He was then taken to the studio and shown the stage, which was located in a lower level of the building. Nabb showed plaintiff a ramp going down to the stage, which plaintiff attempted to use. Because of the steep grade of the ramp, plaintiff fell forward, but he used his hands to stop his body from actually falling out of his wheelchair. After touring the stage area, plaintiff attempted to go up the ramp, but could not, due to its steep incline. Nabb ultimately had to push plaintiff up the ramp.

Although the building had a side entrance into the stage area, the path was blocked with moving curtains, cameras, props, and the stage itself. Even if plaintiff had been able to enter through that door, the unusable ramp provided the only access to the main level, where CCCA’s offices were located. On leaving the building, plaintiff concluded that the building was not wheelchair-accessible.

A couple of months after his orientation, Nabb called plaintiff to inform him that a computer-graphics teaching position was open at CCCA. After attending some classes to determine whether he could teach the class, plaintiff applied for the position. Before he was offered the job, plaintiff was called to a meeting at CCCA to discuss his difficulties in getting into and working in the building. According to plaintiff, various employees of CCCA were at the meeting, as was Myron Miller, the landlord of the building. Plaintiff advised of various accommodations to assist him in gaining access to, and working in, the building. From the meeting plaintiff concluded that he would have to access the building from the main entrance, which had a flight of three steps going up to the front door and then another flight of three steps past the front door to CCCA’s offices.

Weeks after that meeting, plaintiff was offered the teaching job; he accepted the offer, and in June 1992, he began teaching one three-to-four-hour class one day of the week. On his first day of work, Nabb assisted plaintiff up the front entrance by bumping plaintiff up each step: Nabb held plaintiffs wheelchair from behind while tilting plaintiff back to lift his front wheels off the ground and up the steps. After working at CCCA for a while, plaintiff had to wait outside for an employee to assist him up the stairs, sometimes waiting for as long as fifteen to twenty minutes. At some point plaintiff was given a buzzer to use so an employee would know he was outside and would come to help him up the stairs. Throughout plaintiffs tenure as a teacher at CCCA, he complained to many about the lack of handicap accessibility to the building.

On November 7, 1995, Michael Staughter, an employee of CCCA, was helping plaintiff down the front steps of the building. Staughter began tilting plaintiffs wheelchair back to bump him down the steps when, as plaintiff explained, “[w]e continued to go forward, I was tipped back, and I don’t know exactly what happened, but we proceeded to go down very quickly, and I continued to go, continued to go back until I actually struck something.” Plaintiffs right shoulder struck the ground, leaving a red mark on that shoulder. After the incident, plaintiff left for his car and went home. In the next week, however, plaintiff began to experience numbness in his right hand and pain in his right arm. Although plaintiff was able to teach that week, he never returned after that to his teaching job at CCCA. Plaintiff subsequently underwent two different surgeries to help alleviate health problems that occurred after his fall, including pain, numbness, and bladder-control problems.

By his complaint filed November 6, 1996, and his second amended complaint, plaintiff brought a variety of claims arising from his employment at CCCA and his fall on the steps of the CCCA building. Plaintiff named as defendants the city of Columbus, CCCA, Myron Miller, and Anthem Blue Cross & Blue Shield. Against the city of Columbus, plaintiff asserted claims of (1) handicap discrimination pursuant to R.C. 4112.02(G), (2) employer intentional tort, (3) breach of contract, and (4) violation of public policy. Against Miller, plaintiff alleged claims of (1) handicap discrimination pursuant to R.C. 4112.02(G), (2) negligence, (3) intentional tort, and (4) violation of public policy. Finally, against CCCA, plaintiff alleged claims of (1) handicap discrimination pursuant to R.C. 4112.99, (2) employer intentional tort, and (3) violation of public policy. Plaintiff sought damages for pain and suffering, loss of enjoyment of life, emotional distress, hospital and medical expenses, both past and future, lost earnings, both past and future, and punitive damages.

In their answers to plaintiffs second amended complaint, the city and CCCA each made claims against all other defendants for indemnification and contribution; Miller made such a claim only against CCCA. CCCA also asserted counterclaims against plaintiff, alleging that plaintiff had breached a duty of loyalty to CCCA and had conspired with others to trespass on CCCA’s property. Subsequently, all defendants moved for summary judgment on all of plaintiffs claims. After briefing, the trial court issued a decision on August 4, 1998, finding that questions of fact precluded summary judgment for CCCA or 'Miller, but granting summary judgment for the city.

Plaintiffs case against CCCA and Miller went to trial on August 17, 1998. After plaintiff had rested his case, both defendants moved pursuant to Civ.R. 50 for directed verdicts on all of plaintiffs claims. The trial court granted Miller’s motion and dismissed him from the case. Although the trial court granted a directed verdict on plaintiffs claims against CCCA for employer intentional tort, violation of public policy, and breach of contract, the trial court refused CCCA’s motion on plaintiffs claim of handicap discrimination. After CCCA had presented its defense, it voluntarily dismissed its claims of trespass and conspiracy. The trial court then granted plaintiffs motion for a directed verdict on CCCA’s remaining claim for breach of a duty of loyalty.

On August 27, 1998, the jury returned a verdict of $550,000 for plaintiff and against CCCA on plaintiffs handicap discrimination claim. Before the trial court had journalized the jury’s verdict, CCCA filed a motion for a new trial pursuant to Civ.R. 59 or, in the alternative, a motion for judgment notwithstanding the verdict, pursuant to Civ.R. 50(B). On January 12, 1999, the trial court granted CCCA’s motion for a new trial, finding “no correlation between the very large verdict awarded to plaintiff and the evidence presented regarding damages.”

Plaintiff appeals, assigning the following errors:

“I. The trial court abused its discretion in granting a new trial when it held that the judgment was not supported by the weight of the evidence.

“II. The trial court abused its discretion in granting a new trial when it held that the verdict was based upon passion and prejudice.

“HI. The trial court erred in refusing to instruct the jury on punitive damages.

“IV. The trial court erred in granting a directed verdict to defendant-appellee Miller, the owner of the building in which plaintiff worked and was injured, where the building was a ‘place of public accommodation’ and was not wheelchair accessible, in violation of ORC § 4112.

“V. The trial court erred in granting a directed verdict in favor of defendantappellee Miller where a landlord has a duty to make his building safe for his tenants and his tenants’ employees including a duty to make his building wheelchair accessible.

“VI. The trial court erred in excluding testimony of defendant-appellee Miller since such testimony constituted an admission of a party-opponent under Evid.R. 801(D) and was testimony of a lay witness based upon personal knowledge and the witness’s own perceptions.

“VII. The trial court erred in holding that the city of Columbus did not ‘act directly or indirectly in the interest’ of defendant Community 21, as an employer, by discriminating against the plaintiff because of his disability when it failed to provide him a wheelchair accessible workplace in violation of ORC § 4112.99.

“VIII. The trial court erred in holding that the city of Columbus did not have a duty to provide the plaintiff with a wheelchair accessible workplace or building, in a public place of public accommodation in violation of ORC § 4112.02(G).

“IX. The trial court erred when it dismissed plaintiffs claim that he was a third-party beneficiary to the contract between the city of Columbus and Community 21.

“X. The trial court erred in dismissing the public policy argument that the three defendants violated ohio public policy when they failed to provide a wheelchair accessible workplace and building for the city’s public access program, which resulted in the bodily injury of Berge and his constructive discharge.

“XI. The trial court erred when it dismissed the intentional tort against the defendants because they were aware of a dangerous condition which would cause harm to a substantial certainty and permitted the dangerous condition to exist.”

CCCA cross-appeals, assigning the following errors:

“I. The trial court erred in failing to grant CCCA’s motions for summary judgment and motions for directed verdict on appellant’s handicap discrimination claim, front pay claim, and any unpleaded negligence claim.

“II. The trial court erred by failing to state which jury instructions it intended to give.

“III. The trial court erred by not allowing objections to jury instructions in open court.

“IV. The trial court erred by not giving CCCA’s requested jury instruction’ on mitigation of damages.

“V. The trial court erred by giving over objection appellant’s personal injury and future damages jury instructions.

“VI. The trial court erred by failing to allow CCCA to submit any damage interrogatories whatsoever.

“VII. The trial court erred by dismissing CCCA’s breach of duty of loyalty claim against appellant on his motion for directed verdict.”

A. CLAIMS AGAINST THE CITY OF COLUMBUS

We first address plaintiffs assignments of error as they relate to the city of Columbus. In dismissing the city as a defendant, the trial court found that CCCA was an independent contractor of the city and, pursuant to the contract entered into between the city and CCCA, that the city was to be held harmless for any injuries arising out of the relationship. Because the trial court found that the city was not liable pursuant to contract for any of plaintiffs injuries, and the other defendants were not entitled to indemnification or contribution from the city, the court granted summary judgment on all claims against the city.

In accordance with Civ.R,. 56, the evidence must be construed most strongly in favor of the nonmoving party; summary judgment should be granted only if no genuine issue of fact exists, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to but one conclusión, which is adverse to the nonmoving party. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 8 O.O.3d 73, 375 N.E.2d 46. A motion for summary judgment first forces the moving party to inform the court of the basis of the motion and to identify portions in the record that demonstrate the absence of a genuine issue of material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 296, 662 N.E.2d 264, 275-276. If the moving party makes that showing, the nonmoving party then must produce evidence on any issue for which the nonmoving party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus (Celotex v. Catrett [1986], 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265, approved and followed).

1. HANDICAP-DISCRIMINATION CLAIM-R.C. 4112.02(A)

In his seventh assignment of error, plaintiff argues that the trial court erred in finding under plaintiffs handicap-discrimination claim that the city was not plaintiffs “employer,” as that word is defined in R.C. 4112.01(A)(2).

Pursuant to R.C. 4112.02(A), it is unlawful for any employer, “because of the * * * handicap * * * of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.” “Employer” includes “the state, any political subdivision of the state, any person employing four or more persons within the state, and any person acting directly or indirectly in the interest of an employer.” R.C. 4112.01(A)(2). “Person” is further defined as “one or more individuals, partnerships, associations, organizations, corporations, legal representatives, trustees, trustees in bankruptcy, receivers, and other organized groups of persons. ‘Person’ also includes, but is not limited to, any owner, lessor, assignor, builder, manager, broker, salesman, appraiser, agent, employee, lending institution, and the state and all political subdivisions, authorities, agencies, boards, and commissions of the state.” R.C. 4112.01(A)(1).

Plaintiff contends that an issue of fact remains in determining whether the city acted either directly or indirectly in the interest of CCCA so as to be an employer for the purposes of R.C. Chapter 4112. Plaintiff essentially asserts that because the city gave CCCA a significant percentage of its operating income, derived from the cable fund, the city was an “employer” as that term is defined in R.C. 4112.01(A)(2).

In attempting to define an “employer” under R.C. 4112.02, the court in Wille v. Hunkar Laboratories, Inc. (1998), 182 Ohio App.3d 92, 724 N.E.2d 492, inquired into the extent of a person’s authority and power to employ, retain, and dismiss an employee. See, also, Hart v. Justarr Corp. (1994), 98 Ohio App.3d 673, 677, 649 N.E.2d 316, 318, and King v. Owens-Corning Fiberglas Corp. (Sept. 27, 1990), Franklin App. No. 90AP-200, unreported, 1990 WL 140561, citing Foran v. Fisher Foods, Inc. (1985), 17 Ohio St.3d 193, 194, 478 N.E.2d 998, 999-1000 (noting that “Ohio Supreme Court decisions have affirmed that the question to answer when identifying the employer is to identify who exercises day-to-day control over the employee”).

Plaintiff has not shown that the city had such control over CCCA’s employees. In fact, other than giving CCCA most of its operating income, the city had almost no contact with CCCA. CCCA was not a department or division of the city, and the city had no right to supervise CCCA’s employees or regulate its hours of operation. The city does not own or operate CCCA, CCCA can spend the funding it receives from the city in its own discretion, and the city did not require CCCA to stay at the building it occupies. CCCA’s simple receipt of a significant amount of money for its operation from the city does not turn the city into the employer of CCCA’s employees, nor does it mean that the city was acting directly or indirectly in the interest of CCCA.

Further, plaintiff did not present any evidence to show that he ever made any payments to the Public Employees Retirement System (“PERS”), a requirement for public employees unless waived by a written application for exemption. No evidence was admitted to show that plaintiff had filed such a waiver. R.C. 145.03; Lancaster v. Public Employees Retirement Sys. of Ohio (1987), 40 Ohio App.3d 135, 137, 532 N.E.2d 144, 146-147. Plaintiffs failing to contribute to PERS provides further evidence that plaintiff was not a public employee and therefore not an employee of the city. See Wood v. Dorcas (1998), 126 Ohio App.3d 730, 735, 711 N.E.2d 291, 294 (supporting conclusion that city was not an employer under R.C. 4113.51 where the worker was not paid by the city, did not receive any health benefits offered to city employees, was hired in a private capacity to perform services for the city on a contractual basis, and had not contributed to PERS).

Plaintiff next alleges that CCCA was an agent of the city, making the city an employer under R.C. 4112.01(A)(2). The trial court, however, found that CCCA was an independent contractor. Plaintiff contends that the distinction is not critical, contending that an “independent contractor” could be a “person” and thus an “employer.” Contrary to plaintiffs contention, although “agent” is included in the definition of “person,” “independent contractor” is not. R.C. 4112.01(A)(1). A distinction thus exists under the statute between an agent and an independent contractor.

The distinction between an agent and an independent contractor is found in Restatement of the Law 2d, Agency (1958) 7, Section 1, which provides that an agency relationship “is the fiduciary relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.” See Hensley v. New Albany Co. (Dec. 31, 1997), Franklin App. No. 97APE02-189, unreported, 1997 WL 798776. An agent may also be an independent contractor, but an independent contractor need not be an agent. Restatement, supra, at 80, Section 14(n), Comment b. Independent-contractor status is determined by the right to control. Bostic v. Connor (1988), 37 Ohio St.3d 144, 524 N.E.2d 881, paragraph one of the syllabus; Gillum v. Indus. Comm. (1943), 141 Ohio St. 373, 25 O.O. 531, 48 N.E.2d 234, paragraph two of the syllabus; Koch v. Conrad (Dec. 9, 1997), Franklin App. No. 97APE05-663, unreported, 1997 WL 770985. The analysis inquires whether the employer retained control of, or the right to control, the mode and manner of doing the work contracted for. If so, the relationship is that of principal and agent or master and servant. If the employer did not retain control but is interested merely in the ultimate result to be accomplished, the relationship is that of independent contractor. Councell v. Douglas (1955), 163 Ohio St. 292, 56 O.O. 262, 126 N.E.2d 597, paragraph one of the syllabus. Factors to be considered include control over the details and quality of the work, the hours worked, selection of materials, tools, and personnel used, the routes traveled, the length of employment, the type of business, the method of payment, and any pertinent agreements or contracts. Bostic, supra, 37 Ohio St.3d at 146, 524 N.E.2d at 883-884.

Plaintiffs only evidence regarding the relationship between plaintiff and the city was the city’s being the major source of CCCA’s operating funds. Plaintiff presented no evidence that the city had control over the manner in which CCCA performed services or over its employees. Indeed, the contract between the city and CCCA specifically stated that CCCA’s board of trustees “has ultimate fiscal, policy, and administrative responsibility for [CCCA’s] programs and staff actions.” CCCA was an independent contractor of the city, and that relationship does not render the city plaintiffs employer for purposes of R.C. 4112.02. Although plaintiff also relies on the phrase “acting directly or indirectly” found in the definition of employer under R.C. 4112.02, that language is simply to ensure that employers cannot escape respondeat superior, or agency, liability. Genaro v. Cent. Trans., Inc. (1999), 84 Ohio St.3d 293, 295, 703 N.E.2d 782, 784-785, citing Czupih v. Card Pak, Inc. (N.D.Ohio 1996), 916 F.Supp. 687, and Gausmann v. Ashland (N.D.Ohio 1996), 926 F.Supp. 635.

Because plaintiff presented no evidence to demonstrate an issue of material fact regarding the city as an employer, the trial court did not err in granting the city summary judgment on plaintiffs handicap-discrimination claim pursuant to R.C. 4112.02(A). Plaintiffs seventh assignment of error is overruled. .

2. HANDICAP-DISCRIMINATION CLAIM-R.C. 4112.02(G)

Plaintiffs eighth assignment of error contends that the trial court erred in dismissing his handicap-discrimination claim, referred to as a public-accommodation claim, against the city. Pursuant to R.C. 4112.02(G), it is illegal for “any proprietor or any employee, keeper, or manager of a place of public accommodation to deny to any person, except for reasons applicable alike to all persons regardless of * * * handicap * * * the full enjoyment of the accommodations, advantages, facilities, or privileges of the place of public accommodation.” Plaintiff claims that the city was the proprietor, manager, or keeper of CCCA’s building and thus is liable for denying plaintiff the full enjoyment of the premises, a place of public accommodation. The city responds that the trial court’s decision was proper because the city was not the proprietor, manager, or keeper of a place of public accommodation and because CCCA was an independent contractor.

Plaintiff failed to present any evidence demonstrating that the city was the proprietor, manager, or keeper of CCCA’s building. The city’s only relation to the building was that CCCA, an independent contractor of the city, operated a public access channel out of the building. The lease of the building was between Miller and CCCA; the city was not involved in any way. The city did not pay any of CCCA’s rent, did not require CCCA to remain in the building, and did not manage or keep the building. The city simply paid CCCA to run a public access channel.

Because, as a matter of law, the city was not a proprietor, manager, or keeper of the building, the trial court did not err in granting summary judgment to the city. Plaintiffs eighth assignment of error is overruled.

3. BREACH-OF-CONTRACT CLAIM

Plaintiffs ninth assignment of error contends that the trial court erred in dismissing his breach-of-contract claim against the city. Plaintiff claims to be a third-party intended beneficiary of the city’s contract with CCCA and contends that the city breached its obligations under the contract when it failed to provide a wheelchair-accessible entrance to the building.

A third-party beneficiary is one for whose benefit a promise is made, but who is not a party to the contract encompassing the promise. Chitlik v. Allstate Ins. Co. (1973), 34 Ohio App.2d 193, 196, 63 O.O.2d 364, 366, 299 N.E.2d 295, 297. An intended beneficiary is one who has enforceable rights under the contract, in contrast to an incidental beneficiary, who has no rights of enforcement. Hill v. Sonitrol of Southwestern Ohio (1988), 36 Ohio St.3d 36, 40, 521 N.E.2d 780, 784-785. To have an intended beneficiary, the contract must be entered into with the intent to benefit that person. Doe v. Adkins (1996), 110 Ohio App.3d 427, 436, 674 N.E.2d 731, 736-737. If the city did not intend to benefit plaintiff, he is an incidental beneficiary with no enforceable rights under the contract. Laverick v. Children’s Hosp. Med. Ctr. of Akron (1988), 43 Ohio App.3d 201, 540 N.E.2d 305. “[T]he mere conferring of some benefit on the supposed beneficiary by the performance of a particular promise in a contract [is] insufficient; rather, the performance of that promise must also satisfy a duty owed by the promisee to the beneficiary.” Hill, supra, 36 Ohio St.3d at 40, 521 N.E.2d at 785, quoting Norfolk & W. Co. v. United States (C.A.6, 1980), 641 F.2d 1201, 1208.

Here plaintiff sued the city for breach of contract because the city failed to ensure that the building was wheelchair-accessible, despite Paragraph XIII of the contract expressly placing the duty of compliance with antidiscrimination laws on CCCA, not the city. Plaintiff nonetheless attempts to argue that the city breached its duty by not terminating the contract when it discovered that CCCA was not in compliance with the antidiscrimination laws. However, under Paragraph X of the contract, termination is a right that the city may exercise under certain conditions. The contract imposed no duty on the city to terminate the contract. Therefore, we need not address plaintiffs status as a third-party beneficiary. Instead, because the contract placed no duty on the city, the city cannot have breached its duty under the contract. The trial court properly dismissed 'plaintiffs breach-of-contract claim, and plaintiffs ninth assignment of error is overruled.

B. CLAIMS AGAINST ALL DEFENDANTS

1. DISCHARGE IN VIOLATION OF PUBLIC POLICY

Plaintiffs tenth assignment of error contends that the trial court erred in dismissing his public-policy tort claim against the city on its summary judgment motion, and against CCCA and Miller on their motions for directed verdict.

Although the claim is inartfully articulated in plaintiffs complaint, plaintiff now alleges that the public-policy tort is actually a claim for wrongful discharge in violation of public policy. Greeley v. Miami Valley Maintenance (1990), 49 Ohio St.3d 228, 551 N.E.2d 981. Greeley held that an employer’s right to terminate employment of an at-will employee does not include “the discharge of an employee where the discharge is in violation of a statute and thereby contravenes public policy.” Id. at paragraph two of the syllabus. Clear public policy not only can be found in the statutes that have been passed by the General Assembly, but also “may also be discerned as a matter of law based on other sources, such as the Constitutions of Ohio and the United States, administrative rules and regulations, and the common law.” Painter v. Graley (1994), 70 Ohio St.3d 377, 639 N.E.2d 51, paragraph three of the syllabus.

The elements of a Greeley claim are as follows:

1. A clear public policy existed and was manifested in a state or federal constitution, statute, or administrative regulation, or in the common law (the clarity element).

2. Dismissing employees under circumstances like those involved in the plaintiffs dismissal would jeopardize the public policy (the jeopardy element).

3. The plaintiffs dismissal was motivated by conduct related to the public policy (the causation element).

4. The employer lacked overriding legitimate business justification ,for the dismissal (the overriding-justification element). Id.

Under the third element of a Greeley claim, plaintiff must have been dismissed from his job. Plaintiff was never fired from CCCA. Plaintiff, however, claims that as a result of defendants’ actions or inaction, he was constructively discharged from his position at CCCA. See, e.g., Collins v. Rizkana (1995), 73 Ohio St.3d 65, 67, 652 N.E.2d 653, 656-657; Chapman v. Adia Services, Inc. (1997), 116 Ohio App.3d 534, 544, 688 N.E.2d 604, 610-611. An employee has been constructively discharged when the employer’s actions make working conditions so intolerable that a reasonable person under the circumstances would have felt compelled to resign. Mauzy v. Kelly Services, Inc. (1996), 75 Ohio St.3d 578, 664 N.E.2d 1272. Further, to show constructive discharge, an employee must demonstrate that “the cumulative effect of the employer’s actions would make a reasonable person believe that termination was imminent.” Id. at 589, 664 N.E.2d at 1281.

Even if we assume that plaintiff was constructively discharged, plaintiffs Greeley claim cannot be maintained against the city because the city was not plaintiffs employer. Mauzy, supra. While plaintiff seeks to extend Greeley to those who were not plaintiffs employer, plaintiff has pointed to no authority, nor have we found any support, for such an extension. The trial court did not err when it granted summary judgment to the city on plaintiffs Greeley claim.

In granting the directed verdict motions of CCCA and Miller, the trial court found that plaintiffs remedy against CCCA was in R.C. 4112.99, not in a common-law tort claim. As to Miller, the trial court granted the motion because Ohio’s public policy does not mandate that all buildings be wheelchair-accessible.

A directed verdict should be granted if the movant is entitled to judgment as a matter of law when the evidence is construed most strongly in favor of the nonmovant. Sanek v. Duracote Corp. (1989), 43 Ohio St.3d 169, 172, 539 N.E.2d 1114, 1116-1117. Thus, the jury should consider plaintiffs Greeley claim only if probative evidence, if believed, would permit reasonable minds to come to different conclusions as to the essential issue of the case. Id. If substantial evidence exists in support of plaintiffs claim, the motion must be overruled. Pariseau v. Wedge Products, Inc. (1988), 36 Ohio St.3d 124, 127, 522 N.E.2d 511, 514-515

Even construing the evidence most strongly in favor of plaintiff, no evidence shows that Miller was plaintiffs employer. He was simply the owner and landlord of the building in which CCCA operated its business; he had no authority whatsoever over the terms of plaintiffs employment with CCCA. Because a constructive discharge must result from the actions of an employer, the trial court properly dismissed plaintiffs Greeley claim against Miller.

As to CCCA, no one contends that CCCA was not plaintiffs employer, and handicap discrimination clearly violates Ohio’s public policy. R.C. 4112.02(A); Collins, supra, 73 Ohio St.3d at 72, 652 N.E.2d at 659-660. The trial court nonetheless dismissed plaintiffs Greeley claim, deciding as a matter of law that the claim could not be brought while plaintiff had a sufficient civil remedy available to him under R.C. 4112.99. As support for the trial court’s rationale, CCCA notes that the cases creating and applying the Greeley claim sought to provide a remedy where none otherwise existed for an employee discharged for a reason contrary to statute or public policy.

In Greeley, the plaintiff was fired from his job after a withholding order was placed on his wages, pursuant to R.C. 3113.21(D). R.C. 3113.213(D) specifically made it unlawful for an employer to use an order of withholding as a basis to terminate an employee, but it provided only for a fine against the employer, not a civil remedy for the terminated employee. Greeley recognized a tort claim for the plaintiff in that instance, observing that the General Assembly could not have intended to foreclose a civil remedy for violations of the statute, for that would frustrate the policy underlying the statute.

In Provens v. Stark Cty. Bd. of Mental Retardation & Developmental Disabilities (1992), 64 Ohio St.3d 252, 594 N.E.2d 959, the court qualified Greeley, holding that “public employees do not have a private cause of civil action against their employer to redress alleged violations by their employer of policies embodied in the Ohio Constitution when it is determined that there are other reasonably satisfactory remedies provided by statutory enactment and administrative process.” Id. at 261, 594 N.E.2d at 964. Provens specifically found that the remedies under R.C. Chapter 4112 provide meaningful relief. Id. at 258, 594 N.E.2d at 963-964. See, also, Schwartz v. Comcorp, Inc. (1993), 91 Ohio App.3d 639, 648, 633 N.E.2d 551, 557 (noting that a Greeley claim could not apply where the statute declaring the public policy that had been violated “contains within its provisions a specific legal remedy for its violation”); Anderson v. Lorain Cty. Title Co. (1993), 88 Ohio App.3d 367, 373, 623 N.E.2d 1318, 1322 (declining to allow claim for wrongful discharge in violation of R.C. 4123.90 when statute itself provides an effective remedy).

The Ohio Supreme Court readdressed the Greeley claim in Kulch v. Structural Fibers, Inc. (1997), 78 Ohio St.3d 134, 677 N.E.2d 308. In a case involving R.C. 4113.52, the whistleblower statute, the court decided that “[t]he remedies available pursuant to R.C. 4113.52 for violations of the statute and the remedies available for the tort of wrongful discharge are cumulative.” Id. at paragraph four of the syllabus. The court noted that the Greeley decision creating a wrongful discharge tort “was not intended to apply only where a statute provides no civil remedies.” Id. at 155, 677 N.E.2d at 324. Nonetheless, after reviewing previous cases that seemed to allow both a statutory claim and a common-law claim, Kulch stated:

“The remedies available pursuant to R.C. 4113.52 are not sufficient to provide the complete relief that would otherwise be available in a Greeley-based cause of action for the tort of wrongful discharge. The statute does not provide for certain compensatory damages and does not specifically authorize recovery of punitive damages. * * * Clearly, the relief available to a whistleblower under a statutory cause of action comes nowhere near the complete relief available in an action based upon the Greeley public-policy exception to the doctrine of employment at will. * * * Thus, we find that the mere existence of statutory remedies for violations of R.C. 4113.52 does not operate as a bar to alternative common-law remedies for wrongful discharge in violation of the public policy embodied in the Whistleblower Statute.” Id. at 157, 677 N.E.2d at 325.

See, also, Wallace v. Trumbull Mem. Hosp. (1997), 970 F.Supp. 618, 621 (citing Kulch for the proposition that “the mere existence of statutory remedies does not without more, operate to bar a claim for wrongful discharge unless the remedies available under the statute are sufficient to provide the complete relief that would otherwise be available in a common law cause of action for wrongful discharge ” [emphasis added]).

Unlike the more limited remedies available under R.C. 4113.52, R.C. 4112.99 provides that in a claim for handicap discrimination, an employee may bring “a civil action for damages, injunctive relief, or any other appropriate relief.” Cf. Helmick v. Cincinnati Word Processing, Inc. (1989), 45 Ohio St.3d 131, 134, 543 N.E.2d 1212, 1215 (holding that to allow “a plaintiff to pursue common-law remedies in lieu of the relief provided under R.C. Chapter 4112 creates no conflict and serves to supplement the limited protection and coverage of that chapter,” which, when Helmick was decided, provided limited relief, such as injunctive relief, reinstatement, and back pay).

The remedies available to a plaintiff in claiming employment discrimination are much broader now than the limited remedies set forth in former R.C. 4112.05(G) and Helmick. See Rice v. CertainTeed Corp. (1999), 84 Ohio St.3d 417, 419, 704 N.E.2d 1217, 1219 (finding that the term “damages” in R.C. 4112.99 is “an inclusive term embracing the panoply of legally recognized pecuniary relief’ such as compensatory and punitive damages); Provens, supra. As a result, the concerns in Kulch and Helmick that justified allowing a Greeley claim in addition to claims under R.C. Chapter 4112 are not present here. Plaintiffs remedies under R.C. 4112.99 are sufficient to provide the complete relief required by Kulch. The trial court did not err in dismissing plaintiffs claim of wrongful discharge in violation of public policy against CCCA. Plaintiffs tenth assignment of error is overruled.

2. INTENTIONAL-TORT CLAIMS

Plaintiffs eleventh assignment of error contends the trial court erred when it granted summary judgment to the city on plaintiffs claim of intentional employment tort and dismissed Miller and CCCA on their motions for directed verdict on the same claim. Because neither the city nor Miller was plaintiffs employer, the trial court properly dismissed plaintiffs employer intentional-tort claim against them. CCCA, however, was plaintiffs employer and thus á potential defendant in a claim for an employer intentional tort.

“[I]n order to establish ‘intent’ for the purpose of proving the existence of an intentional tort committed by an employer against his employee, the following must be demonstrated: (1) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within its business operation; (2) knowledge by the employer that if the employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition, then harm to the employee will be a substantial certainty; and (3) that the employer, under such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task. (Van Fossen v. Babcock & Wilcox Co. [1988], 36 Ohio St.3d 100, 522 N.E.2d 489, paragraph five of the syllabus, modified as set forth above and explained.)” Fyffe v. Jeno’s, Inc. (1991), 59 Ohio St.3d 115, 570 N.E.2d 1108, 1109, paragraph one of the syllabus.

For purposes of his claim of an employer intentional tort, plaintiff claims that he was subjected to a dangerous condition in being bumped up and down the stairs with his wheelchair to enter and exit the building. CCCA contends that it did not know that plaintiff was going up the front steps to enter the building because it had agreed with plaintiff that he would go through the side door near the stage. The trial court dismissed plaintiffs claim against CCCA because plaintiff failed to present sufficient evidence (1) to establish a dangerous process or instrumentality or (2) to show that CCCA knew with substantial certainty that harm would result from any alleged dangerous process, but nonetheless required plaintiff to perform the dangerous process.

Plaintiff presented evidence that CCCA had knowledge of a dangerous process or condition. Heidi Mau, the former executive director, gave plaintiff a buzzer, and knew he was using it, to alert other employees that he had arrived and to request assistance up the stairs. Similarly, Patricia Williamson, then interim executive director, testified that she knew that plaintiff was being carried up and down the front steps to get into the building. Indeed, plaintiff told the executive director of CCCA, Laurie Cirivello, that the situation was dangerous.

To satisfy the second prong of the Fyffe test, plaintiff had to produce evidence that CCCA knew of the substantial certainty of injury to plaintiff as a result of the dangerous condition. “[E]ven if an injury is foreseeable, and even if it is probable that the injury would occur if one were exposed to the danger enough times, ‘there is a difference between probability and substantial certainty.’ ” Heard v. United Parcel Serv. (July 20, 1999), Franklin App. No. 98AP-1267, unreported, 1999 WL 814391, quoting Ruby v. Ohio Dept. of Natural Resources (Dec. 3, 1992), Franklin App. No. 92AP-947, unreported, 1992 WL 361817. “[T]he mere knowledge and appreciation of a risk-something short of substantial certainty-is not intent.” Fyffe, supra, at paragraph two of the syllabus. Unless the employer actually intends to produce the harmful result or knows that injury to its employee is certain or substantially certain to result from the dangerous instrumentality or condition, the employer cannot be held liable. Id. Accordingly, an intentional-tort action against an employer is not shown simply because a known risk later blossoms into reality. Van Fossen, supra, 36 Ohio St.3d at 116, 522 N.E.2d at 503. Rather, “the level of risk-exposure [must be] so egregious as to constitute an intentional wrong.” Sanek v. Duracote Corp. (1989), 43 Ohio St.3d 169, 172, 539 N.E.2d 1114, 1117.

Plaintiff did not present any evidence to demonstrate knowledge on CCCA’s part that injury was substantially certain to occur as a result of his being lifted up and down the front stairs at CCCA. Although prior accidents resulting from the hazard are probative of whether an employer knows that an injury is substantially certain to occur, Foust v. Magnum Restaurants, Inc. (1994), 97 Ohio App.3d 451, 646 N.E.2d 1150, plaintiff presented no such evidence. Plaintiffs having worked at CCCA for three years without injury while being lifted up and down the stairs is evidence to the contrary.

Indeed, plaintiffs most probative evidence on the substantial-certainty element of Fyffe was testimony of an employee about staff meeting discussions concerning plaintiffs safety in being lifted up and down the stairs. Even when viewed in the light most favorable to plaintiff, plaintiffs evidence does not support a finding that CCCA knew with substantial certainty that injury would occur to plaintiff, though it may indicate negligence or even recklessness. Because plaintiff failed to present sufficient evidence under the second prong of Fyffe, the trial court did not err in dismissing plaintiffs employer intentional-tort claim against CCCA. Plaintiffs eleventh assignment of error is overruled.

C. CLAIMS AGAINST MILLER

Plaintiffs next three assignments of error relate to Miller, the landlord of the building in which CCCA was housed. Plaintiffs sixth assignment of error contends that the trial court erred in excluding a portion of Miller’s testimony. Specifically, in his deposition that was read to the jury, Miller was asked: “Based on what you witnessed, would it be your opinion that someone in a wheelchair could place themself [sic ] in jeopardy by going up and down those stairs?” Miller’s attorney objected to the question, and the trial court, sustaining the objection, struck the question and answer because any observation would not have been based on Miller’s own personal knowledge. The trial court felt that because Miller had not seen how any handicapped persons entered the building, he would have no personal knowledge with which to answer the question.

Appellate reviews of the admission or exclusion of evidence generally is limited to whether the lower court abused its discretion. State v. Finnerty (1989), 45 Ohio St.3d 104, 543 N.E.2d 1233. “Abuse of discretion” implies that the trial court’s attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 5 OBR 481, 450 N.E.2d 1140.

Evid.R. 602 states that “[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself.” Miller initially stated in his deposition that he had seen people in wheelchairs in his building but that he had never seen how they entered the building. He later stated that he had seen people in wheelchairs being carried down the front steps maybe three times. Miller thus possessed the requisite personal knowledge to answer plaintiffs question.

However, the excluded question asked Miller for an opinion. A lay witness, such as Miller, may testify in the form of an opinion if that opinion is (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue. Evid.R. 701; State v. Berry (June 23, 1988), Franklin App. No. 87AP-924, unreported, 1988 WL 66753. Given Miller’s testimony, his opinion would be rationally based on his own perception. The issue thus resolves to whether Miller’s answer would be helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.

Miller’s positive response to the question may have been helpful to determining whether plaintiff was exposed to a dangerous process or condition under plaintiffs intentional-tort claim. While the trial court arguably should have allowed the testimony, plaintiff sustained no prejudice because his claims of employer intentional tort all were properly rejected for other reasons. Accordingly, plaintiffs sixth assignment of error is overruled.

1. HANDICAP-DISCRIMINATION CLAIM-R.C. 4112.02(G)

Plaintiffs fourth assignment of error contends that the trial court erred when it granted a directed verdict in favor of Miller on plaintiffs claim of handicap discrimination, referred to as a public-accommodation claim under R.C. 4112.02(G). The trial court decided that Miller had no intent to discriminate against plaintiff and that no statutory or case law required Miller to make his building wheelchair-accessible.

R.C. 4112.02(G) applies to places of public accommodation. Miller contends that his building was not a place of public accommodation and, even if it was, that he was exempted from any requirement to conform to R.C. 4112.02 by a grandfather provision in Ohio Adm.Code 4112-5-06(E) and (F). Plaintiff argues that the building is a place of public accommodation, since it is leased to a public access television station that is funded by the city and CCCA’s services are available to the public.

A place of public accommodation is defined as “any inn, restaurant, eating house, barbershop, public conveyance by air, land, or water, theater, store, other place for the sale of merchandise, or any other place of public accommodation or amusement of which the accommodations, advantages, facilities, or privileges are available to the public.” R.C. 4112.01(A)(9); see, also, Ohio Adm.Code 4112-5-02(1). R.C. 4112.01 and 4112.02 are remedial statutes and should be interpreted liberally to effectuate their purpose and to ensure that the rights granted by the statutes are not defeated by overly restrictive interpretation. Ohio Civ. Rights Comm. v. Lysyj (1974), 38 Ohio St.2d 217, 220, 67 O.O.2d 287, 289, 313 N.E.2d 3, 6. Finding a trailer park to be a place of public accommodation, Lysyj noted that “[t]he establishments specifically delineated in [former] R.C. 4112.01(1) [defining public accommodation] all display several features of distinguishing similarity that indicate the intended scope of the omnibus clause. Each place offers accommodations, advantages, facilities or privileges to a substantial public. Secondly, each place offers its accommodations to the public on a nonsocial, sporadic, impersonal and nongratuitous basis.” Id. at 220, 67 O.O.2d at 289, 313 N.E.2d at 6. See, also, Little Forest Med. Ctr. of Akron v. Ohio Civ. Rights Comm. (1991), 61 Ohio St.3d 607, 609-610, 575 N.E.2d 1164, 1167-1168, and Wooten v. Columbus Div. of Water (1993), 91 Ohio App.3d 326, 334, 632 N.E.2d 605, 610 (noting the usefulness of federal statutes, and case law interpreting them, in interpreting R.C. Chapter 4112).

The Ohio Supreme Court’s interpretation of “public accommodation” in Lysyj and the federal statutes, including the Americans with Disabilities Act (“ADA”), Section 12101 et seq., Section 2000a, Title 42, U.S.Code, compel the conclusion that the building was a place of public accommodation. CCCA offered its services, facilities, or privileges to the public, and allowed the public to come in and take classes to learn to produce television shows for a public access channel. Although CCCA argues that the payment of fees by members of the public before they can use CCCA’s equipment means CCCA’s services are not available to the general public, CCCA’s argument is not well taken. Many of the public accommodations listed in R.C. 4112.01(A)(9), such as restaurants and theaters, charge a fee for the services that they provide.

Nonetheless, in order to prevail on an employment-discrimination claim under R.C. Chapter 4112, plaintiff must prove discriminatory intent. Mauzy v. Kelly Services, Inc. (1996), 75 Ohio St.3d 578, 583, 664 N.E.2d 1272, 1276-1277; see, also, Fiske v. Rooney (1995), 105 Ohio App.3d 269, 276, 663 N.E.2d 1014, 1018 (finding that a question of fact existed as to discriminatory intent in public-accommodation claim pursuant to R.C. 4112.02[G]). Discriminatory intent may be proven either directly or indirectly. Byrnes v. LCI Communication Holdings Co. (1996), 77 Ohio St.3d 125, 127, 672 N.E.2d 145, 147. Plaintiff attempted to prove discriminatory intent directly, not indirectly. Under the direct method, “a plaintiff may establish a * * * case of * * * discrimination * * * by presenting evidence, of any nature, to show that an employer more likely than not was motivated by discriminatory intent.” Mauzy, supra, paragraph one of the syllabus. A plaintiff pursuing a claim under the direct method must establish a causal link or nexus between the discriminatory statements or conduct and the prohibited act of discrimination. Id., at 129, 672 N.E.2d at 148.

Plaintiff contends that Miller’s testimony provides sufficient evidence of intent to defeat Miller’s motion for directed verdict. According to Miller’s testimony, he received a letter written by Laurie Cirivello, then executive director of CCCA, telling Miller the building was not wheelchair-accessible. Further, a meeting was held at CCCA before plaintiff started his teaching position, at which plaintiff discussed possible changes to the building to make it wheelchair-accessible. According to plaintiff, Miller attended that meeting and plaintiff was introduced to the people there as a potential employee. Miller stated that CCCA employees might have told him that lifting wheelchair-bound people up the front stairs of his building was dangerous.

Even if all the evidence is construed in a light most favorable to plaintiff, the trial court did not err in directing a verdict in favor of Miller, as plaintiff presented no evidence that Miller knew that plaintiff was working at the building. To the contrary, Miller himself testified that he did not know that plaintiff worked at the building. Although Miller stopped working at the building in 1994, even when he worked there he never stayed past 5:00 p.m.; plaintiff came to work at CCCA at 6:30 p.m. Plaintiff presented insufficient evidence for reasonable minds to come to any conclusion other than that Miller did not know that plaintiff was working at the building and therefore could not have intended to discriminate against him. Plaintiffs fourth assignment of error is overruled.

2. NEGLIGENCE CLAIM

Plaintiffs fifth assignment of error contends that the trial court erred in dismissing his negligence claim against Miller. To establish Miller’s negligence, plaintiff-must show the existence of a duty Miller owed to plaintiff, a breach of that duty, and an injury proximately resulting from that breach. Menifee v. Ohio Welding Products (1984), 15 Ohio St.3d 75, 77, 15 OBR 179, 180-181, 472 N.E.2d 707, 710.

Plaintiff contends that under R.C. 5321.04, Miller had a duty to comply with all building codes and to keep common areas in a safe condition and that Miller’s violation of the statute is negligence per se. “Where there exists a legislative enactment commanding or prohibiting for the safety of others the doing of a specific act and there is a violation of such enactment solely by one whose duty it is to obey it, such violation constitutes negligence per se.” Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367, 53 O.O. 274, 119 N.E.2d 440. R.C. Chapter 5321, however, applies only to residential property, defined as “a dwelling unit for residential use and occupancy.” R.C. 5321.01(C). The duties R.C. Chapter 5321 impose on landlords do not apply to commercial premises and therefore do not impose any duty on Miller, a landlord of a commercial property. Knickerbocker Bldg. Services, Inc. v. Phillips (1984), 20 Ohio App.3d 158, 20 O.B.R. 192, 485 N.E.2d 260.

Plaintiff next contends that Miller was negligent per se in violating Ohio Adm.Code 4101:2-2-03 and 4112-5-06. Only violations of a specific legislative enactment may support a finding of negligence per se. Swart v. Ohio Dept. of Rehab. & Corr. (1999), 133 Ohio App.3d 420, 728 N.E.2d 428 (disregarding plaintiffs claim that a violation of an Ohio Adm.Code section could constitute negligence per se), citing Chambers v. St. Mary’s School (1998), 82 Ohio St.3d 563, 568, 697 N.E.2d 198, 202-203; Jaworowski v. Med. Radiation Consultants (1991), 71 Ohio App.3d 320, 594 N.E.2d 9. Plaintiffs contention thus is not persuasive.

Plaintiff further contends that Miller was negligent per se in violating regulations under the Occupational Safety and Health Act (“OSHA”), Section 651 et seq., Title 29, U.S.Code by not making his building wheelchair-accessible. Again, his contention is not well taken. See Hernandez v. Martin Chevrolet, Inc. (1995), 72 Ohio St.3d 302, 649 N.E.2d 1215 (holding that violation of an OSHA regulation does not constitute negligence per se because OSHA regulations are not intended to affect the duties owed for the safety and protection of others).

Plaintiff finally asserts that Miller’s failure to comply with the ADA, Section 12101 et seq., Title 42, U.S.Code, was negligence per se. A claim for negligence per se may be had only when a statute sets forth a specific course of conduct designed to protect the safety of others. Westervelt v. Rooker (1983), 4 Ohio St.3d 146, 4 OBR 390, 447 N.E.2d 1307. “However, where the duty is defined ‘only in abstract or general terms, leaving to the jury the ascertainment and determination of reasonableness and correctness of acts and conduct under the proven conditions and circumstances, the phrase negligence per se has no application.’ Swoboda v. Brown (1935), 129 Ohio St. 512, 523, 2 O.O. 516, 521, 196 N.E. 274, 279. In Eisenhuth we further explained that where the duty prescribed by the enactment is so specific that the only determination necessary by the jury is to find but a single fact, a violation of the statute, then there is negligence per se. Conversely, if the jury must determine negligence from a consideration of several facts and circumstances, then negligence per se is inapplicable.” Hurst v. Ohio Dept. of Rehab. & Corr. (1995), 72 Ohio St.3d 325, 327, 650 N.E.2d 104. 106.

The duties imposed by the ADA are abstract duties. Plaintiff can cite no specific duty, and so he notes instead the requirement that Miller remove barriers to the disabled where the removal is readily achievable. Section 12182(b)(2)(A)(iv), Title 42, U.S.Code. Such an abstract and general duty would require the jury to determine what is “readily achievable” from a consideration of several facts and circumstances. Negligence per se is inapplicable in such a case. Eisenhuth, supra, 161 Ohio St. at 374, 53 O.O. 274, 277-278, 119 N.E.2d at 444; see, also, Becker v. Shaull (1992), 62 Ohio St.3d 480, 483, 584 N.E.2d 684, 686 (finding no negligence per se when alleged violated statute, R.C. 5589.06, lacked the specificity required to impose negligence per se upon the finding of a violation).

Accordingly, the trial court properly dismissed plaintiffs negligence claim against Miller. Plaintiffs fifth assignment of error is overruled.

D. PUNITIVE DAMAGES

Plaintiffs third assignment of error contends that the trial court erred in failing to instruct the jury on punitive damages. Punitive damages may be awarded in actions brought pursuant to R.C. 4112.99. Rice, supra. Although plaintiff requested a jury instruction and interrogatory on punitive damages, the trial court did not give the requested instruction or interrogatory, and plaintiff did not object to the trial court’s omission.

Civ.R. 51(A) provides that “[o]n appeal, a party may not assign as error the giving or the failure to give any instruction unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection.” Thus, the “fundamental rule is that an appellate court will not consider any error which could have been brought to the trial court’s attention, and hence avoided or otherwise corrected.” Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207, 210, 24 O.O.3d 316, 317-318, 436 N.E.2d 1001, 1003.

Even if no formal objection is made to the trial court’s omission of a jury instruction, such a failure may be excused by an exception to the waiver rule found in Presley v. Norwood (1973), 36 Ohio St.2d 29, 65 O.O.2d 129, 303 N.E.2d 81. In Presley, the Ohio Supreme Court held that “[w]here the record affirmatively shows that a trial court has been fully apprised of the correct law governing a material issue in dispute, and that the complaining party has unsuccessfully requested the inclusion of that law in the trial court’s charge to the jury, such party does not waive his objections to the court’s charge by failing to formally object thereto.” (Emphasis sic.) Id. at paragraph one of the syllabus. Once a party makes a position clear enough to the trial court to give the court an opportunity to correct a mistake or defect in the charge, the rationale for a formal objection as required by Civ.R. 51(A) is no longer present. Id. at 33, 65 O.O.2d at 131, 303 N.E.2d at 84-85; see, also, State v. Wolons (1989), 44 Ohio St.3d 64, 67, 541 N.E.2d 443, 445-446; Duboe v. Accurate Fabrication (July 20, 1999), Franklin App. No. 98AP-842, unreported. In such a case, an objection would be a mere formality. Id.

Nonetheless, the Presley exception does not apply each time the trial cou