Nagy v. Fred W. Albrecht Grocery Co.

• Docket Number: C.A. No. 30376
• Decision Date: 08 November 2023
• Citation: 228 N.E.3d 661
• Parties: Eric P. NAGY, et al., Appellants v. The FRED W. ALBRECHT GROCERY Co. dba Acme Super Markets, Appellee
• Court: Ohio Court of Appeals

228 N.E.3d 661

2023-Ohio-4049

Eric P. NAGY, et al., Appellants

v.The FRED W. ALBRECHT GROCERY Co. dba Acme Super Markets, Appellee

C.A. No. 30376

Court of Appeals of Ohio, Ninth District, Summit County.

November 8, 2023

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS, COUNTY OF SUMMIT, OHIO, CASENo. CV 2020-05-1414.

DAVID C. SHELDON, Attorney at Law, Medina, for Appellants.

EVAN PALIK, Attorney at Law, Dublin, for Appellee.

DECISION AND JOURNAL ENTRY

SUTTON, Presiding Judge.

{¶1}Plaintiffs-Appellants, Eric and Jessica Nagy, appeal from the judgment of the Summit County Court of Common Pleas awarding summary judgment to Defendant-Appellee, The Fred W. Albrecht Grocery Co., dba Acme Super Markets ("ACME").This Court affirms.

I.Relevant Background

{¶2}Eric Nagy was employed as a carpenter at Krumroy-Cozad Construction Company.Krumroy-Cozad Construction Company was hired by ACME to renovate and expand a grocery store in Norton, Ohio.On May 4, 2018, Mr. Nagy walked through a set of double doors to go outside to the location he had worked the previous day.Upon doing so, Mr. Nagy fell into an excavated trench and broke his ankle.Mr. Nagy acknowledged he saw the excavation partially into the double doors prior to leaving for the day on May 3, 2018.

{¶3} The Nagys filed a complaint against ACME, and one John Doe, alleging negligence and loss of consortium.Specifically, the Nagys alleged a John DoeDefendant, an employee of ACME, turned off the door alarm and removed a barricade consisting of cones and tape in front of the double doors.ACME filed a motion for summary judgment, the Nagys filed a memorandum in opposition, and ACME filed a reply.The Nagys also filed a motion to amend the complaint to add a statutory claim, pursuant to R.C. 4101.02, alleging Mr. Nagy was a frequenter of the store.The trial court denied the Nagys’ motion to amend.In awarding summary judgment to ACME, the trial court stated:

* * *

In accordance with [Sidle v. Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589], this [c]ourt finds that since [Mr.] Nagy was aware of the trench and therefore, the dangerous condition, [ACME], as the owner of the premises, did not have a duty to warn him of the danger.A construction site is inherently dangerous and as a construction worker on the site in question, Mr. Nagy was acutely aware of this fact and is expected to have discover[ed] and protect[ed] himself against just such a condition.

Since this [c]ourt has made this finding, it is unnecessary to determine whether [ACME] properly warned [Mr.] Nagy, an employee of [Krumroy-Cozad Construction], of the condition (i.e. whether the door alarm should have been engaged and/or who disengaged the alarm or whether an [ACME] employee movedthe cones from in front of the door).Likewise, this [c]ourt need not engage in an analysis whether other attendant circumstances led to Mr. Nagy’s fall (i.e. the fact that he was carrying a box of caulk or whether his attention was elsewhere due to the door alarm).

* * *

{¶4} The Nagys now appeal raising three assignments of error for our review.We group and take certain assignments of error out of order to better facilitate our review and discussion.

II.ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN GRANTING SUMMARY [JUDGMENT] IN FAVOR OF [ACME] WITHOUT TAKING INTO CONSIDERATION THE ATTENDANT CIRCUMSTANCES WHEN APPLYING THE OPEN AND OBVIOUS AFFIRMATIVE DEFENSE.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED IN ITS APPLICATION OF THE OPEN AND OBVIOUS AFFIRMATIVE DEFENSE BECAUSE THE OWNER/OCCUPIER OF THE PREMISES ACTIVELY ENGAGED IN CONDUCT CAUSING THE DEFECT OR HAZARD TO BE CONCEALED AND LESS OPEN AND OBVIOUS IN VIOLATION OF ITS COMMON LAW AND STATUTORY DUTY.

{¶5} In their first and third assignments of error, the Nagys argue the trial court erred in granting summary judgment in favor of ACME.For the following reasons, we disagree.

{¶6} Appellate review of an award of summary judgment is de novo.Grafton v.Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241(1996).Summary judgment is appropriate under Civ.R. 56 when: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is adverse to the non-moving party.Temple v. Wean United, Inc.,50 Ohio St.2d 317, 327, 364 N.E.2d 267(1977), citingCiv.R. 56(C).A court must view the facts in the light most favorable to the non-moving party and must resolve any doubt in favor of the non-moving party.Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138(1992).A trial court does not have the liberty to choose among reasonable inferences in the context of summary judgment, and all competing inferences and questions of credibility must be resolved in the non-moving party’s favor.Perez v. Scripps-Howard Broadcasting Co.,35 Ohio St.3d 215, 218, 520 N.E.2d 198(1988).

{¶7}The Supreme Court of Ohio has set forth the nature of this burden-shifting paradigm as follows:

[A]party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party’s claims.The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the non-moving party has no evidence to prove its case.Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstratesthat the nonmoving party has no evidence to support the nonmoving party’s claims.If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied.However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the non-moving party.

Dresher v. Burt,75 Ohio St.3d 280, 293, 662 N.E.2d 264(1996).

[1–3]{¶8} To establish actionable negligence, a plaintiff must show the existence of a duty on the part of the defendant toward the plaintiff; a breach of that duty; and an injury resulting therefrom.Mussivand. v. David,45 Ohio St.3d 314, 318, 544 N.E.2d 265(1989)."Where there is no duty or obligation of care or caution, there can be no actionable negligence."Hudson v. DaimlerChrysler Motors, 9th Dist. SummitNo. 21804, 2004-Ohio-3416, 2004 WL 1462643, ¶ 7, citingMussivand at 318, 544 N.E.2d 265, citingUnited States Fire Ins. Co. v. Paramount Fur Serv., Inc.,168 Ohio St. 431, 156 N.E.2d 121(1959), paragraph three of the syllabus."The existence of a duty in a negligence action is a question of law for the court to determine."Mussivand at 318, 544 N.E.2d 265.

[4, 5]{¶9} Indeed, a "construction site is inherently a dangerous setting."Bond v. Howard Corp.,72 Ohio St.3d 332, 336, 650 N.E.2d 416(1995)."Supervision of a construction job, i.e., coordinating work and directing contractors to perform tasks in accordance with contract specifications, has never constituted ‘active participation’ in the work of an independent contractor.The very nature of the construction business requires a general contractor or the owner of a construction site to ‘supervise’ a construction job."Bond at 339, 650 N.E.2d 416(Wright, J., concurring)."An owner of a construction site who merely directs an independent contractor to perform a task required by contract specifications but does not retain control over the means or manner in which that task is performed does not owe a duty of care to an employee of a subcontractor who is subsequently injured as a result of the other contractor’s performance of the task in an unsafe manner."Michaels v. Ford Motor Co.,72 Ohio St.3d 475, 478, 650 N.E.2d 1352(1995).

[6, 7]{¶10} However, "[a] property owner may be held liable for injuries to or the death of an employee of an independent contractor if the property owner ‘actively participated’[i.e.,] directed the activity which resulted in the injury and/or gave or denied permission for the critical acts that led to the employee’s injury, rather than merely exercising a general supervisory role over the project.’ "Clark v. Ohio Dept. of Transp.163 Ohio St.3d 1443, 2021-Ohio-1925, 168 N.E.3d 1204, ¶ 9, quotingSopkovich v. Ohio Edison Co.,81 Ohio St.3d 628, 641, 693 N.E.2d 233(1998), quotingBond at 337, 650 N.E.2d 416, quotingCafferkey v. Turner Constr. Co.,21 Ohio St.3d 110, 488 N.E.2d 189(1986), syllabus."Active participation giving rise to a duty of care may be found to exist" where a property owner either directs or exercises control over the work activities of the independent contractor’s employees, or where the owner "retains or exercises control over a critical variable in the workplace."Sopkovich at 643, 693 N.E.2d 233.

[8–10]{¶11} Additionally, pursuant to common law, "[a]n occupier of premises is under no duty to protect a business invitee against dangers which are known to such invitee or are so obvious and apparent to such invitee that he may reasonably be expected to discover them and protect himself against them."Sidle v. Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589(1968), 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.’ "Armstrong v. Best Buy Co.,99 Ohio St.3d 79, 2003-Ohio-2573...