Flack v. Avita Health Sys.
| Decision Date | 03 October 2022 |
| Docket Number | 3-22-03 |
| Citation | 198 N.E.3d 565 |
| Parties | Jamie FLACK, Plaintiff-Appellant, v. AVITA HEALTH SYSTEM, Defendant-Appellee. |
| Court | Ohio Court of Appeals |
George R. Oryshkewych, Independence, for Appellant.
Taylor C. Knight, Toledo, for Appellee.
{¶1} This appeal, having been placed on the accelerated calendar, is sua sponte being assigned and considered on the regular calendar pursuant to Loc.R. 12(1). Under the authority of Loc.R. 12(5), we have elected to issue a full opinion in lieu of a judgment entry.
{¶2} The case arises from an injury incurred on September 16, 2019, when plaintiff-appellant, Jamie Flack, a patient at Avita Orthopedic Center, was injured while attempting to traverse a sidewalk on the defendant-appellee's property while using a knee scooter. Flack appeals the February 14, 2022 judgment of the Crawford County Court of Common Pleas granting Avita Health System's motion for summary judgment. For the reasons that follow, we affirm
{¶3} On September 4, 2019, Flack underwent surgery to treat a heel spur
on her right foot. (Flack's Oct. 1, 2020 Depo. at 23-24). On September 16, 2019, she attended a post-operative appointment at the Avita Orthopedic Center in Galion, Ohio, which is owned and operated by Avita Health System. (Troiano's Sept. 24, 2020 Depo. at 6-7). Thomas Troiano, the facilities manager for Avita Health System described the Avita location located at 955 Hosford Road, Galion, Ohio. (Id. at 6-17). The facility has a single main patient entrance located under a breezeway and a carport. (Id. at 13-14, Ex. 1). The patient entrance has sloped concrete leading to the doors, which allows patients to be dropped off at the entrance of the building. (Id. at 14, Ex. 1). Extending to the north and south of the building is a sidewalk leading to the north and south parking lots, respectively. (Troiano's Sept. 24, 2020 Depo. at 6-7). Handicapped parking is located in both the north and the south ends of the parking lots. (Troiano's Sept. 24, 2020 Depo. at 6-7, Ex. 2). According to Troiano, a patient who parked in the north parking lot may use the north sidewalk to access the building. (Troiano's Sept. 24, 2020 Depo. at 14-16). However, patients can access the building from the parking lot without traversing the sidewalk. (Id. at 15). In fact, many patients who park in the north parking lot access the building by traveling through the parking lot rather than the sidewalk. (Id. at 15-16); (Hyer's Nov. 16, 2020 Depo. at 8-12).
{¶4} Troiano stated that, prior to September 16, 2019, he observed some wear on the north sidewalk and determined that it should be replaced for "aesthetic purposes." (Troiano's Sept. 24, 2020 Depo. at 16). According to Troiano, in August 2019, while at the facility on other business, he noticed an inconsistency in the color of the sidewalk. (Id. at 16-17). When he investigated further, he also determined some of the concrete had worn or eroded away and decided to have the sidewalk repaired because it "didn't look good." (Id. at 17). Troiano recalled putting the tip of his finger on the edge of one of the deteriorated spots to determine its depth and estimated that the depth was approximately one-eighth to three-sixteenths of an inch and was less than a quarter of an inch. (Id. at 33-34). When presented with a photo of one section of the sidewalk, Troiano admitted that the erosion spanned nearly the entire horizontal length of the sidewalk joint. (Troiano's Sept. 24, 2020 Depo. at 28, Ex. 7). However, Troiano maintained that, due to its shallow depth, he did not view the imperfections in the sidewalk as a trip hazard. (Id. at 28-29). When the sidewalk was repaired subsequent to Flack's fall, Troiano stated that approximately ten sections of the sidewalk were replaced with new concrete. (Id. at 20-21).
{¶5} At the time of her post-operative appointment on September 16, 2019, Flack had been instructed by her physician not to bear weight on her right foot due to her recent surgery, and Flack was ambulating with the assistance of a knee scooter. (Flack's Oct. 1, 2020 Depo. at 24-25). She purchased the knee scooter from a family friend and did not receive an instruction manual or training relating to its use or operation. (Id. at 28-29). However, Flack stated that it was "obvious" to her how to operate the equipment. (Id. at 28). Flack's physician prescribed a wheelchair rather than a knee scooter; but, Flack stated that she discussed the option of a knee scooter with her operating physician who indicated that it was a suitable option. (Id. at 24-25, 28-29). Additionally, her operating physician observed her using the knee scooter during the post-operative appointment on September 16, 2019 and did not comment. (Id. at 29). According to Flack, the post-operative appointment on September 16, 2019 was the first time she used the knee scooter outside of her residence. (Id. at 28).
{¶6} Flack's daughter and son-in-law accompanied her to the post-operative appointment on September 16, 2019. (Id. at 27). When Flack arrived at the appointment, her daughter pulled the vehicle up to the car port at the main entrance of the building and her son-in-law assisted Flack into the building. (Id. at 27-28). Once Flack was inside the building, her daughter parked her vehicle in a handicapped spot on the north parking lot. (Id. ).
{¶7} Following the appointment, Flack traversed along the sidewalk leading to the north parking lot. (Id. at 29-30). Flack led the way and her daughter and sonin-law followed behind, carrying her purse and belongings. (Id. at 34-35). According to Flack, as she traversed the sidewalk leading to the north side of the parking lot, the knee scooter "just stopped on [her]" and she flipped over the handlebars of the scooter and onto the concrete sidewalk. (Id. at 30). Flack stated that she landed on the ground on her bottom, but her right heel hit the concrete when she landed. (Id. at 34-35). Subsequent medical testing revealed that Flack tore her right Achilles tendon. (Id. at 38). Several days later, she underwent surgery to repair the injury. (Id. at 38-39).
{¶8} According to Flack, despite having been to Avita Orthopedic Center approximately three times prior, she had never traveled on the sidewalk to the north parking lot before her injury. (Id. at 29-30). Rather, when entering and exiting the building on previous locations, she traveled through the parking lot to the front door. (Id. ). Flack admitted that, prior to her fall, she observed the imperfection in the area of the sidewalk where the wheel of her scooter became caught in the concrete and stated that the portion of the sidewalk was "all broken up." (Id. at 30-34).
{¶9} On April 1, 2020, Flack filed a complaint against Avita Health System asserting a claim of negligence. On April 21, 2020, Avita Health System filed its answer to the complaint.
{¶10} Avita Health System filed a motion for summary judgment on April 15, 2021. In its motion, Avita Health System argued that it did not owe Flack a duty to warn of the alleged defect in the sidewalk that caused her fall. Specifically, Avita Health System argued the hazard was open and obvious. On May 26, 2021, Flack filed her response to Avita Health System's motion for summary judgment. On June 4, 2021, Avita Health System filed its reply in support of its motion for summary judgment.
{¶11} On February 14, 2022, the trial court granted Avita Health System's motion for summary judgment. Flack filed her notice of appeal on February 24, 2022. She raises one assignment of error for our review.
The trial court erred as a matter of law, by granting summary judgment against plaintiff/appellant.
{¶12} In her sole assignment of error, Flack argues the trial court erred by granting Avita Health System's motion for summary judgment. Specifically Flack argues that reasonable minds could conclude the condition of the sidewalk constituted negligence per se. She also argues that the danger posed by the spalled concrete was not open and obvious to her and that attendant circumstances preclude the application of the open and obvious doctrine.
{¶13} We review a decision to grant summary judgment de novo. Doe v. Shaffer , 90 Ohio St.3d 388, 390, 738 N.E.2d 1243 (2000). "De novo review is independent and without deference to the trial court's determination." ISHA, Inc. v. Risser , 3d Dist. Allen No. 1-12-47, 2013-Ohio-2149, 2013 WL 2316248, ¶ 25, citing Costner Consulting Co. v. U.S. Bancorp , 195 Ohio App.3d 477, 2011-Ohio-3822, 960 N.E.2d 1005, ¶ 10 (10th Dist.). Summary judgment is proper where there is no genuine issue of material fact, the moving party is entitled to judgment as a matter of law, and reasonable minds can reach but one conclusion when viewing the evidence in favor of the non-moving party, and the conclusion is adverse to the non-moving party. Civ.R. 56(C) ; State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. , 69 Ohio St.3d 217, 219, 631 N.E.2d 150 (1994).
{¶14} "The party moving for summary judgment has the initial burden of producing some evidence which demonstrates the lack of a genuine issue of material fact." Carnes v. Siferd , 3d Dist. Allen No. 1-10-88, 2011-Ohio-4467, 2011 WL 3890520, ¶ 13, citing Dresher v. Burt , 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). "In doing so, the moving party is not required to produce any affirmative evidence, but must identify those portions of the record which affirmatively support his argument." Id. , citing Dresher at 292-293, 662 N.E.2d 264. "The nonmoving party must then rebut with specific facts showing the existence of a genuine triable issue; he may not rest on the mere allegations or denials of his pleadings." Id. , citing Dresher at 292, 662 N.E.2d 264 and Civ.R. 56(E).
{¶15} Material facts are those facts " ‘that might affect the outcome of the suit under the governing law.’ " Turner v. Turner , 67 Ohio St.3d 337, 340, 617 N.E.2d 1123 (1993), quoting ...
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