'I'm So Sorry': Why an Employee's Apology Can Help Your Ohio Injury Case

Published September 17, 2019 · Ohio Appeals Courts

Picture a restaurant at dinnertime. A server backs away from the kitchen counter, collides with an elderly diner walking to the restroom, and he goes down hard. In the confusion, she apologizes over and over, his family tends to him, and nobody writes down her name.

That is essentially the situation in Wulf v. Bravo Brio Restaurant Group, Inc., 2019-Ohio-3434, decided by the Twelfth District Court of Appeals on August 26, 2019. The trial court threw the case out. The appeals court brought it back, and in doing so it answered three questions that come up constantly in restaurant, store, and hotel injury cases.

What happened at the restaurant

On January 2, 2016, 89-year-old Roland Wulf was having dinner with family at Bravo Cucina Italiana in West Chester. On his way to or from the restroom, he walked through an aisle between dining booths and the kitchen food counter. Someone suddenly backed into him and struck his left leg. He fell and fractured his hip.

He did not see who hit him. But a woman in a Bravo uniform told him she worked there and said she was sorry it happened and sorry she did it. She apologized to his girlfriend, and she told his son-in-law "I'm so sorry" several times. A female customer told the family she had seen the whole thing and that a waitress had backed into him.

Mr. Wulf sued. He gave a deposition and later passed away, and his son continued the case as executor. The trial court granted summary judgment for the restaurant, meaning it ended the case without a trial, because the waitress was never identified, the court treated her apologies as inadmissible hearsay, and it found Mr. Wulf's account inconsistent about whether he was going to or coming from the restroom.

Ruling 1: the apology is evidence

Hearsay is an out-of-court statement offered to prove that what it says is true, and it generally cannot be used as evidence. The trial court treated the waitress's apologies that way. The appeals court disagreed for two independent reasons.

First, the apologies were not offered to prove she truly felt sorry. They were offered to show that the person who bumped into Mr. Wulf was a restaurant employee, because a woman in a Bravo uniform, identified as a Bravo waitress, apologized for what happened. Offered for that purpose, they are not hearsay at all.

Second, under Ohio Evidence Rule 801(D)(2)(d), a statement by a party's employee "concerning a matter within the scope of employment, made during the existence of the relationship" may be used against the employer. The court explained that an employee's opinion about whether her employer is legally liable would not qualify, but a factual statement about her own conduct on the job does. The waitress was talking about backing into a customer while carrying a food tray, which was squarely part of her job.

The court also held that her statements, made right after the fall, were admissible as present sense impressions, statements describing an event made while or immediately after it is perceived, in part because the family could confirm that Mr. Wulf had just fallen.

Ruling 2: "open and obvious" does not apply to an employee's actions

The restaurant argued that the risk of bumping into people in a crowded restaurant is "open and obvious," which in Ohio can eliminate a property owner's duty to warn. The court rejected that argument.

The open-and-obvious doctrine applies only to static conditions on the property, like a hidden step, a cracked sidewalk, or a broken handrail. Mr. Wulf's claim was about active negligence: an employee doing something carelessly that injured a customer. A business has a separate duty not to injure its customers through the activities of its staff, and the open-and-obvious defense does not touch that duty.

This distinction matters well beyond restaurants. A store clerk pushing a stocking cart into a shopper, a hotel employee swinging a luggage cart, a worker dropping merchandise from a high shelf: these are active-negligence cases, and the defense that "you should have seen it" does not end them.

Ruling 3: you do not need the employee's name

The trial court effectively required Mr. Wulf to identify the specific waitress before the restaurant could be held responsible. The appeals court said no.

Under the doctrine of respondeat superior, an employer is responsible for an employee's negligence committed within the scope of employment. The court said it had found no case requiring the injured person to identify the employee by name. What matters is proof that the person who caused the harm was an employee acting on the job. Here, three people saw the uniform, and the waitress herself said she worked there.

The court also held that the minor inconsistency about whether Mr. Wulf was heading to or from the restroom was beside the point. He consistently said the waitress was on his left and backed into him, and on summary judgment, inferences must be drawn in favor of the injured person. The case was sent back for further proceedings.

A word about doctors' apologies

This rule is different in medical cases. Ohio's apology statute, R.C. 2317.43, makes a health-care provider's expressions of sympathy or apology to a patient or family inadmissible as an admission of liability. I explained how that statute works in an earlier post on doctors' apologies. Wulf involved a restaurant employee, and the medical apology statute had nothing to do with it.

What this means for you

If you are hurt by an employee at a restaurant, store, hotel, or other business, Wulf offers practical lessons:

• Write down what was said. Exact words matter. "I'm sorry, I didn't see you" is a factual statement about what the employee did.
• Note the uniform, name tag, and description. Mr. Wulf's case survived because he could describe the uniform, age, height, and hair color.
• Get witnesses' names and numbers. The unnamed customer who saw "the whole accident" would have been an important witness if someone had taken her contact information.
• Ask for an incident report and a manager. Businesses usually know which employees were on shift; that information can be obtained later in discovery.
• Do not assume the case is over because you did not see it happen. Circumstantial evidence and admissions can carry a claim.

I discussed the duties of hotels and short-term rentals earlier this summer in a post on lodging injuries. Our premises liability and personal injury pages explain how these claims are built.