Kwait v. John David Management Co.

CourtOhio Court of Appeals
Writing for the CourtDAY; JACKSON, P. J., and CORRIGAN
Citation42 Ohio App.2d 63,329 N.E.2d 702
Decision Date19 December 1974
Parties, 71 O.O.2d 425 KWAIT et al., Appellants, v. JOHN DAVID MANAGEMENT CO. et al., Appellees.

Page 63

42 Ohio App.2d 63
329 N.E.2d 702, 71 O.O.2d 425
KWAIT et al., Appellants,
v.
JOHN DAVID MANAGEMENT CO. et al., Appellees.
Court of Appeals of Ohio, Eighth District, Cuyahoga County.
Dec. 19, 1974.

[329 N.E.2d 703] Syllabus by the Court

1. The granting of a motion for summary judgment is proper when there are no material facts at issue and the moving party is entitled to judgment as a matter of law.

2. The party against whom a motion for summary judgment is made is entitled to have the evidence construed most strongly in its favor.

3. When a defendant's motion for summary judgment alleges that the facts at issue will not support a legal basis for liability even if proven, a motion for summary judgment is akin to motion to dismiss for failure to state a cause of action upon which relief can be granted.

4. Where a landlord undertakes to clear ice and snow from the common walkway of an apartment, he must do so with ordinary care which includes the duty to take into account dangerous conditions caused by the subsequent thawing and freezing of snow placed near the walkway. When injuries to a tenant are alleged to have been caused by such conditions due to the landlord's lack of ordinary care in performing his undertaking, a jury question is presented.

Page 64

Stewart & DeChant, Cleveland, for appellants.

John A. Murphy, Jr., Lakewood, for appellees.

DAY, Judge.

Plaintiff-appellants, Mae Kwait and Ralph Kwait (plaintiffs), allege that Mae Kwait was a tenant in an apartment complex owned and operated by defendant-appellees, John David Management Company and others (defendants) during the winter months of 1972-1973.

On March 23, 1973, plaintiff, Mae Kwait, was returning from a shopping trip when she slipped and fell on a walkway surrounding one of the buildings within the complex. She alleges that the fall was caused by an accumulation of ice which was hidden under the wet surface of the walkway and there was a duty on the part of the defendants to remove the ice.

Each party propounded interrogatories to the other. Defendants moved for summary judgment alleging there was no duty on their part to plaintiffs. Plaintiffs responded alleging that defendants in the past had cleared accumulations of snow and kept equipment for that purpose and, thereby, established a course of conduct giving rise to a duty. Additionally, appellant alleged by way of exhibit from the United States Department of Commerce, National Oceanic and Atmospheric Administration, that the last 'trace' 1 of precipitation was over 20 hours previous to the fall and the last measurable snowfall was five days previously. There was also an allegation that the way in which the snow was removed and piled along the sidewalk was negligent because with a change of temperature the snow would melt onto the sidewalk and then freeze, as it subsequently did, when the temperature dropped.

On the basis of the pleadings, the interrogatories, briefs, the affidavit and exhibit of plaintiffs the trial court granted summary judgment for defendants from which appellant appeals assigning as error:

'Trial court erred in sustaining defendants' motion for summary judgment.'

[329 N.E.2d 704]

Page 65

A successful motion for summary judgment rests on two foundations. There must be 'no genuine issue as to any material fact' and 'the moving party (must be) entitled to judgment as a matter of law.'

In the present case these twin considerations are intertwined. The complaint alleges that the defendants 'caused' the fall and injury to Mae Kwait giving rise to causes of action in her and her husband. If this 'cause' is 'legal' cause generated by facts either established or subject to proof, then summary judgment for the defendant is inappropriate. On the other hand, if there is no genuine issue of material fact and the established facts will not support legal cause as a 'matter of law', summary judgment is proper.

The 'facts' underlying the 'cause' must be gleaned from the pleadings, answers to...

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40 practice notes
  • Raymond E. Davis v. James P. Jones, Sheriff, 93-LW-4583
    • United States
    • United States Court of Appeals (Ohio)
    • September 28, 1993
    ...is more akin to a motion to dismiss for failure to state an actionable claim. See Kwait v. John David Management Co. (1974), 42 Ohio App. 2d 63, 65. This court will apply the same principle in considering the arguments posited for our review. We first consider, out of order, the third assig......
  • Norris v. Ohio Standard Oil Co., 81-895
    • United States
    • United States State Supreme Court of Ohio
    • April 7, 1982
    ...as to any material fact and the moving party is entitled to judgment as a matter of law. Kwait v. John David Management Co. (1974), 42 Ohio App.2d 63 (329 N.E.2d 702)." Vetovitz Bros., Inc., v. Kenny Constr. Co. (1978), 60 Ohio App.2d 331, 332, 397 N.E.2d To warrant a summary judgment in a ......
  • Jerome Claeys, Iii v. Bowser-Morner, Inc., 97-LW-1928
    • United States
    • United States Court of Appeals (Ohio)
    • July 3, 1997
    ...only the resolution of legal questions remain, which alone do not necessitate a trial. Kwait v. John David Management Co. (1974), 42 Ohio App.2d 63, 71 Ohio Op.2d 425, 329 N.E.2d 702 (finding that if there is no genuine issue of material fact and the facts offered will not support the asser......
  • Meyer v. Chagrin Falls Exempted Village School Dist. Bd. of Educ.
    • United States
    • United States Court of Appeals (Ohio)
    • March 17, 1983
    ...fact" and "the moving party [must be] entitled to judgment as a matter of law." Civ.R. 56(C); Kwait v. John David Mgmt. Co. (1974), 42 Ohio App.2d 63, 329 N.E.2d 702 [71 O.O.2d 425]. Plaintiff's complaint alleged that her termination was not a superannuation pursuant to R.C. 3307.37, but wa......
  • Request a trial to view additional results
40 cases
  • Raymond E. Davis v. James P. Jones, Sheriff, 93-LW-4583
    • United States
    • United States Court of Appeals (Ohio)
    • September 28, 1993
    ...is more akin to a motion to dismiss for failure to state an actionable claim. See Kwait v. John David Management Co. (1974), 42 Ohio App. 2d 63, 65. This court will apply the same principle in considering the arguments posited for our review. We first consider, out of order, the third assig......
  • Norris v. Ohio Standard Oil Co., 81-895
    • United States
    • United States State Supreme Court of Ohio
    • April 7, 1982
    ...as to any material fact and the moving party is entitled to judgment as a matter of law. Kwait v. John David Management Co. (1974), 42 Ohio App.2d 63 (329 N.E.2d 702)." Vetovitz Bros., Inc., v. Kenny Constr. Co. (1978), 60 Ohio App.2d 331, 332, 397 N.E.2d To warrant a summary judgment in a ......
  • Jerome Claeys, Iii v. Bowser-Morner, Inc., 97-LW-1928
    • United States
    • United States Court of Appeals (Ohio)
    • July 3, 1997
    ...only the resolution of legal questions remain, which alone do not necessitate a trial. Kwait v. John David Management Co. (1974), 42 Ohio App.2d 63, 71 Ohio Op.2d 425, 329 N.E.2d 702 (finding that if there is no genuine issue of material fact and the facts offered will not support the asser......
  • Meyer v. Chagrin Falls Exempted Village School Dist. Bd. of Educ.
    • United States
    • United States Court of Appeals (Ohio)
    • March 17, 1983
    ...fact" and "the moving party [must be] entitled to judgment as a matter of law." Civ.R. 56(C); Kwait v. John David Mgmt. Co. (1974), 42 Ohio App.2d 63, 329 N.E.2d 702 [71 O.O.2d 425]. Plaintiff's complaint alleged that her termination was not a superannuation pursuant to R.C. 3307.37, but wa......
  • Request a trial to view additional results

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