Alice Kornowski v. Chester Properties, Inc.
| Decision Date | 30 June 2000 |
| Docket Number | 99-G-2221,00-LW-2992 |
| Parties | ALICE KORNOWSKI, et al., Plaintiffs-Appellants v. CHESTER PROPERTIES, INC., Defendant-Appellee. CASE |
| Court | Ohio Court of Appeals |
Civil Appeal from the Court of Common Pleas Case No. 98 P 000730
HON DONALD R. FORD, P.J., HON. ROBERT A. NADER, J., HON. MARY CACIOPPO, J., Ret., Ninth Appellate District, sitting by assignment.
ATTY JAYE M. SCHLACHET, ATTY. CRAIG T. WEINTRAUB, 620 Terminal Tower, 50 Public Square, Cleveland, OH 44113 (For Plaintiffs-Appellants)
ATTY. DANIEL A. RICHARDS, ATTY. LISA M. CHESLER, WESTON, HURD, FALLON, PAISLEY & HOWLEY, L.L.P., 2500 Terminal Tower, 50 Public Square, Cleveland, OH 44113-2241 (For Defendant-Appellee)
CACIOPPO J., Ret.
This is an accelerated calendar appeal submitted to the court on the briefs of the parties. Appellants, Alice and Jerome Kornowski, appeal from a final judgment of the Geauga County Court of Common Pleas entering summary judgment in favor of appellee, Chester Properties, Inc. ("Chester"). For the following reasons, we affirm the decision of the trial court.
On the morning of September 22, 1995, appellants went to Murphy's Pub and Grill ("Murphy's") for breakfast. Murphy's is owned and operated by appellee. Appellants entered Murphy's through an entrance located on the west side of the restaurant. After entering the building, however, appellants were told that the restaurant was closed. As a result, appellants proceeded to leave Murphy's to go to another place to eat. The couple exited the building through the same door they had entered.
While walking through the door's threshold, Alice tripped over the riser and fell through the doorway onto the lower cement platform. Alice was taken to the hospital where a subsequent examination revealed that she had suffered a torn rotator cuff. Surgery was performed to repair the damage. In total, Alice incurred approximately $10,000 in medical bills as a result of her injury.
On September 11, 1997, Alice filed a complaint alleging that appellee had negligently failed to maintain the premises in a reasonably safe condition and that this negligence was the direct and proximate result of her injury. Jerome joined in the suit for loss of consortium. Appellee filed an answer denying the allegations in the complaint.
Sometime during the litigation, appellants voluntarily dismissed their complaint. However, they refiled their cause of action on October 5, 1998. Appellee subsequently filed a motion for summary judgment on January 20, 1999 arguing that there was no genuine issue of material fact precluding summary judgment, and that appellee was entitled to judgment as a matter of law. In particular, appellee maintained that it did not breach any duty to Alice because it had exercised ordinary care in keeping the premises in a reasonably safe condition. In addition, appellee also argued that the riser was an open and obvious condition of which a business invitee should be aware of or may be reasonably expected to discover.
On March 8, 1999, appellants filed a brief in opposition to summary judgment claiming that genuine issues of material fact remained as to whether the doorframe in question created an unreasonably dangerous condition, and as to whether the condition was open and obvious. In support, appellants submitted a report from Richard Kraly ("Kraly"), a registered architect, in which he opined that the doorframe in question violated both the Ohio Basic Building Code ("OBBC") and the Americans with Disabilities Act ("ADA"). Based on his experience and expertise, Kraly submitted that the existing threshold and riser configuration leading from the lobby of Murphy's "contributed to and was the proximate cause of the incident." (Emphasis in the original.)
On March 10, 1999, in an abbreviated judgment entry, the trial court granted appellee's motion for summary judgment based upon the reasons stated in appellee's brief. From this judgment, appellants filed a timely notice of appeal with this court. They now assert the following two assignments of error for our review:
Both of appellants' assignments of error concern the trial court's granting of summary judgment. Thus, they will be considered in a consolidated fashion. In their two assignments of error, appellants maintain that the trial court erred in granting summary judgment because reasonable minds could differ as to whether the doorframe was in an unsafe condition on the day of the incident. In addition, appellants also argue that there was a factual question as to whether appellee had a duty to warn appellants of the alleged hazardous condition.
Summary judgment is proper when: (1) there is no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come but to one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence construed most strongly in his favor. Civ.R. 56(C); Leibreich v. A.J. Refrigeration, Inc. (1993), 67 Ohio St.3d 266, 268.
Material facts are those facts which might affect the outcome of the suit under the governing law of the case. Turner v. Turner (1993), 67 Ohio St.3d 337, 340, citing Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 248. To determine what constitutes a genuine issue, the court must decide whether the evidence presents a sufficient disagreement to require submission to a jury, or whether it is so one-sided that one party must prevail as a matter of law. Turner at 340.
The party seeking summary judgment on the grounds that the nonmoving party cannot prove its case bears the initial burden of informing the trial court on the basis for the motion and of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential elements of the nonmoving party's claims. Dresher v. Burt (1996), 75 Ohio St.3d 280. The moving party must be able to point specifically to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claim. Id.
If this initial burden is met, the nonmoving party has a reciprocal burden to respond, by affidavit or as otherwise provided in the rule, in an effort to demonstrate that there is a genuine issue of fact suitable for trial. Id. If the nonmoving party fails to do so, then the trial court may enter summary judgment against that party. Id.
In order to establish an actionable claim for negligence, appellants must demonstrate: (1) that appellee owed a duty to appellants; (2) that appellee breached that duty; (3) that appellee's breach of duty directly and proximately caused appellants' injury; and (4) damages. Chambers v. St. Mary's School (June 27, 1997), Geauga App. No. 96-G-2013, unreported, at 9-10, 1997 Ohio App. LEXIS 2823, citing Sedar v. Knowlton Constr. Co. (1990), 49 Ohio St.3d 193, 198. See, also, Bond v. Mathias (Mar. 17, 1995), Trumbull App. No. 94-T-5081, unreported, at 6, 1995 Ohio App. LEXIS 979. The existence of a duty in a negligence action is a question of law for the court to determine. Maky v. Patterson, Inc. (July 5, 1996), Geauga App. No. 96-G-1962, unreported, at 5-6, 1996 Ohio App. LEXIS 3002, citing, Mussivand v. David. (1989), 45 Ohio St.3d 314, 318.
The parties do not dispute that Alice was a business invitee. Business invitees are people "who come upon the premises of another, by invitation, express or implied, for some purpose which is beneficial to the owner." Light v. Ohio Univ. (1986), 28 Ohio St.3d 66, 68, citing Scheibel v. Lipton (1951), 156 Ohio St. 308. See, also, Owens v. Taco Bell Corp. (June 21, 1996), Lake App. No. 95-L-180, unreported, at 6-7, 1996 Ohio App. LEXIS 2579.
In Ohio, the owner of a store or some other similar place of business has a duty to exercise ordinary care and to protect customers by maintaining the premises in a safe condition. Keiser v. Giant Eagle, Inc. (1995), 103 Ohio App.3d 173, 176. See, also, Donato v. Honey Baked Ham Co. (Oct. 29, 1999), Lake App. No. 98-L-200, unreported, at 5, 1999 Ohio App. LEXIS 5097; Robinson v. Martin Chevrolet, Inc. (May 28, 1999), Trumbull App. No. 98-T-0070, unreported, at 4, 1999 Ohio App. LEXIS 2466; Sopko v. Marc Glassman, Inc. (Apr. 30, 1990), Lake App. No. 98-L-006, unreported, at 7, 1999 Ohio App. LEXIS 2021; Hudak v. 510 Gypsy Lane, Inc. (Mar. 26, 1999), Trumbull App. No. 98-T-0129, unreported, at 5, 1999 Ohio App. LEXIS 1227. This duty includes the obligation to maintain the premises in a reasonably safe condition and to warn invitees of any latent defects of which the owner has or should have knowledge. Hudak at 5, citing Scheibel at paragraph three of the syllabus.
Nevertheless, an owner is not to be held as an insurer against all forms of risk. S.S. Kresge Co. v. Fader (1927), 116 Ohio St. 718, paragraph one of the syllabus. An owner has no duty to protect a customer from conditions which are known to the customer or are so obvious and apparent that a customer may reasonably be expected to discover them and protect himself against them. Keiser at 176...
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