Heard v. Dayton View Commons Homes

• Decision Date: 16 February 2018
• Docket Number: No. 27706,27706
• Citation: 106 N.E.3d 327,2018 Ohio 606
• Parties: James A. HEARD, Plaintiff–Appellant v. DAYTON VIEW COMMONS HOMES, Defendant–Appellee
• Court: Ohio Court of Appeals

106 N.E.3d 327

2018 Ohio 606

James A. HEARD, Plaintiff–Appellant

v.DAYTON VIEW COMMONS HOMES, Defendant–Appellee

No. 27706

Court of Appeals of Ohio, Second District, Montgomery County.

Rendered February 16, 2018

JAMES A. HEARD, 100 Audubon Park, Dayton, Ohio 45402, Plaintiff–Appellant, Pro Se

WILLIAM H. KOTAR III, Atty. Reg. No. 0073462, 7550 Lucerne Drive, Suite 408, Middleburg Heights, Ohio 44130, Attorney for Defendant–Appellee

OPINION

FROELICH, J.

{¶ 1} James A. Heard appeals from a judgment of the Montgomery County Court of Common Pleas, which granted summary judgment in favor of Dayton View Commons Homes and Oberer Management Services (collectively "Dayton View") on Heard's claim for personal injury. For the following reasons, the judgment of the trial court will be affirmed.

{¶ 2} Heard's pro se complaint was filed on November 17, 2016. The complaint had several attachments and alleged that, on November 24, 2014, he had fallen at the threshold of his apartment because of water that had seeped under the exterior door, a problem about which he had previously complained to management. He stated that he hit his back, neck, and head on the ground, that the fall caused him to have surgery on his "cervical," and that treatment was ongoing. He sought $5 million in compensatory and punitive damages. No specific medical records or expert opinions were attached to the complaint.¹

{¶ 3} Dayton View filed an answer denying Heard's allegations and raising affirmative defenses. It also filed a notice disclosing its expert witness, a notice to take a medical examination (of Heard), and a notice to take Heard's deposition.

{¶ 4} On May 25, 2017, Dayton View filed a motion for summary judgment. The motion stated that Heard alleged that he had neck surgery as a result of his fall, but that his medical records indicated that his physicians had been recommending neck surgery for a couple of years prior to the fall. Dayton View's motion also asserted that Heard presented "no expert testimony to establish that the neck surgery was in any way proximately related to the alleged slip and fall." The motion relied on Heard's deposition testimony.

{¶ 5} Heard did not file a response to the motion for summary judgment. On July 28, 2017, the trial court granted Dayton View's motion.

{¶ 6} Heard filed a notice of appeal and a pro se brief. The brief does not set forth assignments of error or otherwise comply with App.R. 16(A), but it does demonstrate that Heard disagrees with the trial court's award of summary judgment.

Summary Judgment Standard

{¶ 7} Pursuant to Civ.R. 56(C), 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, after construing the evidence most strongly in favor of the nonmoving party, can only conclude adversely to that party. Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369–370, 696 N.E.2d 201 (1998). The moving party carries the initial burden of affirmatively demonstrating that no genuine issue of material fact remains to be litigated. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988). To this end, the movant must be able to point to evidentiary materials of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292–293, 662 N.E.2d 264 (1996).

{¶ 8} Once the moving party satisfies its burden, the nonmoving party may not rest upon the mere allegations or denials of the party's pleadings. Dresher at 293, 662 N.E.2d 264 ; Civ.R. 56(E). Rather, the burden then shifts to the nonmoving party to respond, with affidavits or as otherwise permitted by Civ.R. 56, setting forth specific facts that show that there is a genuine issue of material fact for trial. Id. The non-moving party has the burden "to produce evidence on any issue for which that party bears the burden of production at trial" and may not rest upon unsworn or unsupported allegations in the pleadings. Parker v. Bank One, N.A. , 2d Dist. Montgomery No. 18573, 2001 WL 303284, * 3, citing Leibreich v. A.J. Refrigeration, Inc. , 67 Ohio St.3d 266, 269, 617 N.E.2d 1068 (1993), Wing v. Anchor Media, Ltd. , 59 Ohio St.3d 108, 111, 570 N.E.2d 1095 (1991), and others. Throughout, the evidence must be construed in favor of the nonmoving party. Dresher at 293, 662 N.E.2d 264.

{¶ 9} In its motion for summary judgment, Dayton View misstated the standard for summary judgment. Citing Wing , it argued that the party moving for summary judgment "is not required to present evidence negating elements of the Plaintiff's claim. Rather, the party opposing summary judgment has the burden of producing specific evidence to establish each element of each claim for which he bears the burden of production at trial." Actually, it is only once the moving party had met its burden of pointing to evidentiary material that shows there is no genuine issue of material fact that the non-moving party has to do anything. Regardless, the trial court utilized the correct standard, i.e., that the moving party bears the initial burden of showing that no genuine issue of material fact exists for trial.

{¶ 10} We review the trial court's ruling on a motion for summary judgment de novo. Schroeder v. Henness, 2d Dist. Miami No. 2012 CA 18, 2013-Ohio-2767, 2013 WL 3356564, ¶ 42. De novo review means that this court uses the same standard that the trial court should have used, and we examine the evidence, without deference to the trial court, to determine whether, as a matter of law, no genuine issues exist for trial. Ward v. Bond, 2d Dist. Champaign No. 2015-CA-2, 2015-Ohio-4297, 2015 WL 6110247, ¶ 8.

Proximate Causation

{¶ 11} In order to prevail on a negligence claim, "one seeking recovery must show the existence of a duty, the breach of the duty, and injury resulting proximately therefrom." Strother v. Hutchinson , 67 Ohio St.2d 282, 285, 423 N.E.2d 467 (1981) ; Long v. Speedway, L.L.C., 2d Dist. Montgomery No. 26851, 2016-Ohio-3358, 2016 WL 3219642, ¶ 7. In Heard's case, the trial court found that there was no genuine issue of material fact as to proximate causation and did not specifically address the other elements.

{¶ 12} Proximate cause is generally established " ‘where an original act is wrongful or negligent and, in a natural and continuous sequence, produces a result [that] would not have taken place without the act.’ " Vlcek v. Brogee , 2d Dist. Montgomery No. 25499, 2013-Ohio-4250, 2013 WL 5436930, ¶ 24, citing Innovative Technologies Corp. v. Advanced Mgt. Technology, Inc., 2d Dist. Montgomery No. 23819, 2011-Ohio-5544, 2011 WL 5137204, ¶ 31. The issue of proximate cause is not open to speculation; as a matter of law, conjecture as to whether the breach of duty caused the particular damage is not sufficient. Id.

{¶ 13} " ‘Except as to questions of cause and effect which are so apparent as to be matters of common knowledge, the issue of causal connection between an injury and a specific subsequent physical disability involves a scientific inquiry and must be established by the opinion of medical witnesses competent to express such opinion.’ " Lane v. Bur. of Workers' Comp. , 2d Dist. Montgomery No. 24618, 2012-Ohio-209, 2012 WL 175418, ¶ 60, citing Wright v. Columbus , 10th Dist. Franklin No. 05AP-432, 2006-Ohio-759, 2006 WL 391823, ¶ 6. Soft-tissue injuries like neck and back strains and sprains require expert testimony to establish a causal connection, because they are injuries that are "internal and elusive, and are not sufficiently observable, understandable, and comprehensible" to be matters of common knowledge. Id. , citing Wright at ¶ 19.

Analysis

{¶ 14} In support of its motion for summary judgment, Dayton View relied on Heard's deposition testimony. In his deposition, Heard, age 59, testified that he had experienced back pain for many years prior to his fall, had been on disability since 2005 for back pain, and had been treated for pain management for "a very long time" with injections and physical therapy. Heard was advised by his doctor in 2012 to get a spinal cord stimulator implant, but he refused.

{¶ 15} Heard further testified that, in 2013, he began experiencing neck pain and tingling in his left arm following a motor vehicle accident, and he continued to have lower back pain; he again refused to consider a spinal cord stimulator. His medical records, about which he was questioned during the deposition, indicated that his chief complaint at that time was neck pain. Heard was also advised by his doctor that he should have surgery to decompress his spine to prevent further damage, symptoms, or loss of function in his limbs, including possible paralysis. Although Heard refused to have the surgery at that time, he acknowledged that he had been informed that surgery might be needed in the future if his condition deteriorated. Heard also acknowledged that his discussion with his doctor in 2013 included discussion of whether surgery on his back and neck could be done at the same time.

{¶ 16} In January 2014, several months before Heard's fall at his apartment, he had an MRI, which his doctors compared with an MRI he had had in 2012. According to Heard, the doctor told him that his spine "was compressed worse" than it had been previously.

{¶ 17} Heard testified that, when he fell, his neighbor immediately called for an ambulance and he was taken to a hospital; he got a "pain shot" and x-rays were taken, but the nurse or technician "didn't see anything in the X rays." He was released the same day, and he "hadn't followed up with anybody" for medical care. However, Heard's neck and...