Keister v. Park Centre Lanes

• Decision Date: 09 December 1981
• Citation: 3 Ohio App.3d 19,443 N.E.2d 532,3 OBR 20
• Parties: , 3 O.B.R. 20 KEISTER et al., Appellants, v. PARK CENTRE LANES, Appellee.
• Court: Ohio Court of Appeals

Page 19

3 Ohio App.3d 19

443 N.E.2d 532, 3 O.B.R. 20

KEISTER et al., Appellants, v. PARK CENTRE LANES, Appellee.

Court of Appeals of Ohio, Fifth District, Stark County.

Dec. 9, 1981.

Syllabus by the Court

To defeat a motion for summary judgment filed by defendant in a negligence action, plaintiff must identify a duty, or duties, owed him by the defendant, and the evidence must be sufficient, considered most favorably to the plaintiff, to allow reasonable minds to infer that a specific duty was breached, that the breach of duty was the proximate cause of plaintiff's injury, and that plaintiff was injured.

Richard G. Reichel, Canton, for appellants.

Vogelgesang, Howes, Lindamood, Zawaly & Brunn and Douglas N. Godshall, Canton, for appellee.

MILLIGAN, Judge.

This is a customer's slip-and-fall case. The accident occurred on the sidewalk/parking lot of the defendant-appellee bowling alley. Motions for summary judgment (Civ.R. 56) were sustained as to officers and employees of the defendant corporation. These judgments were made final by recitals that there was no just reason for delay, and they were not appealed. Thereupon the defendant bowling alley filed its motion for summary judgment which was granted by the Stark County Court of Common Pleas.

The plaintiff-appellant assigns three errors:

"1. The court erred in granting summary judgment in favor of defendant- appellee on the grounds that defendant-appellee was not negligent as a matter of law.

"2. The court erred in granting summary judgment in favor of defendant-appellee on the grounds of contributory negligence.

"3. The court erred in granting summary judgment in favor of defendant-appellee on the grounds of assumption of the risk."

The judgment of the trial court is general. It is impossible to determine the specific grounds upon which the trial court ruled. ¹

Three possible explanations for the court's judgment exist: (1) the defendant was not negligent as a matter of law; (2) the plaintiff was contributorily negligent as a matter of law; or (3) the plaintiff assumed the risk as a matter of law. An affirmative conclusion as to any of these options results in an affirmance of the trial court.

The current glut of summary judgment cases involving negligence actions in this court and other courts of appeals throughout the state of Ohio justifies a fresh examination of the procedure.

Pleadings

In her complaint the plaintiff alleges that she was a business invitee of the defendants and that "upon leaving the defendants' place of business she was proceeding towards the parking lot when she fell due to accumulated ice and snow. * * * [D]efendants allowed cars to park in the fire lane, thus blocking the normal path of egress from the building and making it impossible for her to see the accumulated ice and snow. * * * [D]efendants were negligent in creating this dangerous situation and/or failing to notify her of the existence of the dangerous condition."

The second cause of action is a complaint by the husband of the injured plaintiff for loss of services.

In its answer the defendant denies negligence and says "that any injuries sustained by Hilda Keister on February 8, 1978, were proximately caused by her own negligence * * *. Hilda Keister voluntarily assumed known risks at the time of her injury * * *."

The defendant filed with its motion for summary judgment a brief and deposition of the plaintiff taken as upon cross-examination. The plaintiff filed a motion to dismiss the motion for summary judgment and a brief. The defendant filed a reply brief.

The plaintiff filed no affidavits, depositions, or other testimonial assertions. Thus, the entire body of testimony lies within the deposition of the plaintiff taken upon cross-examination.

Facts

On February 18, 1978, the plaintiff went to the defendant-bowling alley to bowl. The accident happened as she left the bowling alley and sidewalk in front of the alley, slipping on a "big chunk of ice." Additional undisputed facts are derived from the testimony of the plaintiff.

There is no other testimony, ergo there are no other facts. The case is ripe for summary judgment consideration. There are no material, operative facts in dispute.

Summary Judgment Rule 56

The Summary Judgment Rule in Ohio, Civ.R. 56, effective July 1, 1970, is substantially the same as the statute it replaced, R.C. 2311.041. Both were patterned after Fed.R.Civ.P. 56.10 West's Ohio Practice 268.

"Summary judgment procedure is a method for promptly disposing of actions in which there is no genuine issue as to any material fact. It has been extensively used in England for more than 50 years, and has been adopted in a number of American states." Federal Advisory Committee Notes to Federal Rule 56, cited at 10 West's Ohio Practice 270.

Motion for Directed Verdict Compared

The pretrial decision the court must make is comparable to that made upon a motion for directed verdict at the conclusion of the trial testimony. The trial court may reason, "If this were all of the evidence presented in the trial, both sides having rested, should I arrest the case from the jury?" If his answer is "yes," Rule 56 says, "Do it now! "

" * * * The unique aspect of the summary judgment device is that it requires parties to bring forward before trial evidentiary facts from which the material facts alleged in the pleadings could warrantably be inferred. Summary judgment is not designed as a mode of attack on technical or formal defects in pleadings. To some extent it is employed where only an issue of law is presented by the pleadings, the province of the traditional demurrer. * * *

" * * *

"It is frequently declared that a summary judgment will be granted where the weight of the evidence introduced on the motion corresponds with the weight of evidence which at the end of a trial would warrant a directed verdict." Factors Affecting The Grant or Denial of Summary Judgment, 48 Colum.L.Rev. 780 (1948), cited at 10 West's Ohio Practice 283.

The Ohio Supreme Court added its encouragement to the time-saving procedure in 1967:

"The summary-judgment statute * * * was enacted with a view to eliminating from the backlog of cases which clog our courts awaiting jury trials those in which no genuine issue of fact exists. The availability of this procedure and the desirability of its aims are so apparent that its use should be encouraged in proper cases." North v. Penna. Rd. Co. (1967), 9 Ohio St.2d 169, 171, 224 N.E.2d 757 .

In unusually strong language the court went further, (1) inviting appeal to the Supreme Court where summary judgments are reversed by courts of appeals, and (2) placing clear burdens upon an appellant.

"With this in mind, appellate courts reviewing orders allowing motions for summary judgment should require the appellant, upon whom the duty of demonstrating prejudicial error rests, to define with great specificity the area in which a factual dispute exists, and this court should review as of public or great general interest doubtful reversals in this area. * * * " Id.

Applicability to Negligence Cases

The frequent application of summary judgment procedure to negligence cases is a recent phenomenon. Earlier commentators suggested that "[n]egligence cases in which summary judgment may properly be granted are exceptional." Wills, Procedure Under the Ohio Summary Statute, 20 Ohio St.L.J. 613, 615 (1959).

Suffice it to point out that (1) North, supra, involves a negligence claim, and (2) the attempted application of summary judgment to negligence proceedings is proliferating in fact around the state of Ohio.

The Summary Judgment Rule

As appropriate to the merits of this case, Civ.R. 56 provides:

"(B) For defending party. A party against whom a claim * * * is asserted * * * may at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof. * * *

"(C) Motion and proceedings thereon. * * * The adverse party prior to the day of hearing may serve and file opposing affidavits. Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

" * * *

"(E) Form of affidavits; further testimony; defense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. * * * The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him."

Applying the Law of Negligence to the Facts

This case does not involve "comparative negligence."

Summary judgment negligence cases...