Nageotte v. Cafaro Co.

• Decision Date: 29 April 2005
• Docket Number: No. E-04-015.,E-04-015.
• Citation: 160 Ohio App.3d 702,2005 Ohio 2098,828 N.E.2d 683
• Court: Ohio Supreme Court
• Parties: NAGEOTTE, Appellee and Cross-Appellant, v. CAFARO COMPANY et al., Appellants and Cross-Appellees.

828 N.E.2d 683

160 Ohio App.3d 702

2005 Ohio 2098

NAGEOTTE, Appellee and Cross-Appellant, v. CAFARO COMPANY et al., Appellants and Cross-Appellees.

No. E-04-015.

Court of Appeals of Ohio, Sixth District, Erie County.

Decided April 29, 2005.

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Margaret M. Murray, Sandusky, and Victoria L. Earle, for appellee and cross-appellant.

James W. Hart, Sandusky, for appellants and cross-appellees.

SINGER, Presiding Judge.

{¶ 1} This appeal comes to us from a judgment issued by the Erie County Court of Common Pleas, following a jury verdict in a slip-and-fall case. Because we conclude that the trial court erred in denying motions for summary judgment and directed verdict in favor of appellants, we reverse.

{¶ 2} Appellee, Mary C. Nageotte,¹ filed suit, alleging that she sustained injuries from a fall caused by a pothole in the parking lot on property owned by appellant SanMarco Company, leased by appellant, First National Supermarkets, Inc. ("First National"), d.b.a. Tops Market, and maintained by appellants, Cafaro Company ("Cafaro") and Cafaro Management Company ("Cafaro Management").² The incident took place in late February 2000, in Sandusky, Ohio. Nageotte claimed that appellants were negligent in failing to maintain the parking lot in a safe condition and to correct a readily discernible hazard. First National and SanMarco Company moved for summary judgment based on the "open and obvious" defense, pointing out that in deposition testimony, Nageotte acknowledged seeing the pothole prior to her fall and trying to avoid it. Cafaro Company moved for summary judgment on the basis that since it had no ownership interest in the property, it was not liable for any injuries to Nageotte.³ The court denied both motions. At a jury trial held in December 2003, Nageotte testified about her observations of the parking lot, her fall, and her resulting broken left hip and wrist. She also testified about another fall six months later. Nageotte testified that, in the second fall, she broke her right hip when she fell backwards onto the sidewalk in downtown Sandusky after forgetting that she had stepped up on a step to see into the window of a store. Nageotte also presented other witnesses to testify as to her health, her statements after the fall, and her ability to function since both falls. Medical testimony was also presented regarding her injuries, treatment, and prognosis.

{¶ 3} The Cafaro director of operations and a Cafaro Management maintenance superintendent and workman testified about the routine inspections and repairs performed in maintaining the parking lot. The Cafaro employees agreed that as property managers for SanMarco, they were responsible for the maintenance of the Tops grocery store parking lot. A Tops grocery store employee testified generally about parking lot conditions.

{¶ 4} At the close of appellee's case-in-chief, appellants moved for a directed verdict, first on the basis that because no dimensions or description of the pothole had been given, Nageotte had failed to present sufficient evidence of any defect or breach of any duty. In the alternative, appellants asserted that because Nageotte saw the alleged pothole and tried to avoid it, the hazard was so open and obvious that no duty existed. The trial court denied the motion. In defense, appellants then offered an additional photograph of the Tops grocery store, which was admitted without objection.

{¶ 5} The jury found in favor of Nageotte, allocating the following percentages of comparative negligence to the parties: five percent to Nageotte; 70 percent to Cafaro Company and Cafaro Management Company; and 25 percent to San Marco Company and Tops Grocery Store. The jury awarded Nageotte a total amount of $200,000 in compensatory damages. Appellants filed motions for judgment notwithstanding the verdict or for a new trial, which were denied. Appellee's motion for prejudgment interest was also denied.

{¶ 6} Appellants now appeal, arguing the following five assignments of error:

{¶ 7} "I. Appellants' First Assignment of Error

{¶ 8} "The trial court erred in denying defendants' motion for summary judgment.

{¶ 9} "II. Appellants' Second Assignment of Error

{¶ 10} "The trial court erred in denying appellants' motion for directed verdict.

{¶ 11} "III. Appellants' Third Assignment of Error

{¶ 12} "The trial court erred by giving an erroneous instruction regarding defendants' possible wanton misconduct, as it was neither alleged nor pled, there was no evidence to support the instruction and defendants were unduly prejudiced thus resulting in an adverse verdict.

{¶ 13} "IV. Appellants' Fourth Assignment of Error

{¶ 14} "The trial court erred in denying defendants' motion for new trial.

{¶ 15} "V. Appellants' Fifth Assignment of Error

{¶ 16} "The trial court erred in denying defendants' motion for judgment notwithstanding the verdict."

{¶ 17} Nageotte cross-appeals, arguing the following two cross-assignments of error:

{¶ 18} "Assignment of Error No. 1

{¶ 19} "The trial court erred in denying prejudgment interest to Mary C. Nageotte.

{¶ 20} "Assignment of Error No. 2

{¶ 21} "The trial court erred by failing to conduct an oral hearing on plaintiff-appellee/cross-appellant's motion for prejudgment interest."

{¶ 22} We will address appellants' first two assignment of error together. In the first assignment of error, appellants argue that the trial court erred in denying them summary judgment; appellants assert in their second assignment of error that the trial court erred in denying their motion for directed verdict.

{¶ 23} An appellate court's review of a trial court's grant of summary judgment is de novo. Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153. Civ.R. 56(C) provides that summary judgment can be granted only if (1) no genuine issue of material fact remains to be litigated, (2) viewing the evidence in a light most favorable to the nonmoving party, reasonable minds can reach but one conclusion and that conclusion is adverse to the nonmoving party, and (3) the moving party is entitled to summary judgment as a matter of law. See, also, Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 364 N.E.2d 267. Nevertheless "[a]ny error by a trial court in denying a motion for summary judgment is rendered moot or harmless if a subsequent trial on the same issues raised in the motion demonstrates that there were genuine issues of material fact supporting a judgment in favor of the party against whom the motion was made." Continental Ins. Co. v. Whittington (1994), 71 Ohio St.3d 150, 642 N.E.2d 615, syllabus.

{¶ 24} Civ.R. 50(A)(4) states that "[w]hen a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue." A motion for a directed verdict tests the sufficiency of the evidence, not the weight of the evidence or the credibility of witnesses. Wagner v. Roche Laboratories (1996), 77 Ohio St.3d 116, 119-120, 671 N.E.2d 252. When the party opposing the motion fails to produce any evidence on one or more of the essential elements of a claim, a directed verdict is appropriate. Hargrove v. Tanner (1990), 66 Ohio App.3d 693, 695, 586 N.E.2d 141. A trial court's grant or denial of a motion for directed verdict presents a question of law, which an appellate court reviews de novo. Schafer v. RMS Realty (2000), 138 Ohio App.3d 244, 257, 741 N.E.2d 155.

SanMarco and First National: Owner or Occupier Liability

{¶ 25} We will first address the motions for summary judgment and directed verdict filed by the property owner, SanMarco, and the occupier, First National. To establish actionable negligence, the plaintiff must show the existence of a duty, a breach of the duty, and an injury proximately resulting therefrom. Fed. Steel & Wire Corp. v. Ruhlin Constr. Co. (1989), 45 Ohio St.3d 171, 173, 543 N.E.2d 769, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77, 15 OBR 179, 472 N.E.2d 707; Di Gildo v. Caponi (1969), 18 Ohio St.2d 125, 47 O.O.2d 282, 247 N.E.2d 732; and Feldman v. Howard (1967), 10 Ohio St.2d 189, 39 O.O.2d 228, 226 N.E.2d 564.

{¶ 26} Generally, an owner or occupier of business premises owes business invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition and has the duty to warn invitees of latent or hidden dangers. Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203, 18 OBR 267, 480 N.E.2d 474; Jackson v. Kings Island (1979), 58 Ohio St.2d 357, 358, 12 O.O.3d 321, 390 N.E.2d 810. The owner or occupier is not, however, an insurer of a business invitee's safety. Paschal, supra, at 203-204, 18 OBR 267, 480 N.E.2d 474. Where a danger is open and obvious, a landowner or business owner owes no duty of care to individuals lawfully on the premises. Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 5, citing Sidle v. Humphrey (1968), 13 Ohio St.2d 45, 42 O.O.2d 96, 233 N.E.2d 589, paragraph one of the syllabus. The rationale underlying this doctrine is that "the open and obvious nature of the hazard itself serves as a warning. Thus, the owner or occupier may reasonably expect that persons entering the premises will discover those dangers and take appropriate measures to protect themselves." Id., citing Paschal, supra, and Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d 642, 644, 597 N.E.2d 504. "The fact that a plaintiff was unreasonable in choosing to encounter the danger is not what relieves the property owner of liability. Rather, it is the fact that the...