Nicoll v. Centerville City Sch.

• Decision Date: 05 January 2018
• Docket Number: No. 27637,27637
• Parties: Kimberly J. NICOLL, et al., Plaintiff–Appellant v. CENTERVILLE CITY SCHOOLS, et al., Defendant–Appellee
• Court: Ohio Court of Appeals

102 N.E.3d 1212

2018 Ohio 36

Kimberly J. NICOLL, et al., Plaintiff–Appellant

v.CENTERVILLE CITY SCHOOLS, et al., Defendant–Appellee

No. 27637

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

Rendered on January 5, 2018

THOMAS J. MANNING, Atty. Reg. No. 0059759, P.O. Box 751484, Dayton, Ohio 45475, Attorney for Plaintiff–Appellant.

RAYMOND H. DECKER, Jr., Atty. Reg. No. 0069208, 600 Vine Street, Suite 412, Cincinnati, Ohio 45202, Attorney for Defendant–Appellee.

OPINION

FROELICH, J.

{¶ 1} Kimberly Nicoll appeals from a judgment of the Montgomery County Court of Common Pleas, which granted summary judgment to Centerville City Schools on her negligence claim. For the following reasons, the trial court's judgment will be affirmed.

I. Factual and Procedural History

{¶ 2} Nicoll's deposition testimony established the following facts.

{¶ 3} On March 18, 2015, Nicoll took her two daughters, ages 7 and 9, to Centerville High School for Cheer Madness, a three-day event for elementary school students involved in cheerleading. The event is held annually in the high school gymnasium. Nicoll and her children had attended Cheer Madness the year before, and Nicoll testified that she had been to the gym "at least three times." (Nicoll Depo. at 39.) Nicoll and her daughters arrived at Centerville High School at approximately 6:00 p.m. Nicoll testified that the weather was sunny but cool. She wore pants, a sweater, and hiking shoes.

{¶ 4} Upon arriving, Nicoll parked her van in a space at the front of the parking lot, with the front bumper of her vehicle near a curb and sidewalk. To the left of her parked van was an empty accessible parking space. Nicoll exited her van and opened the rear driver's side door for her daughters to get out. She grabbed her daughters' hands, and "headed into the gym with about a hundred other parents and kids that were walking in at the same time." (Id. at 42.)

{¶ 5} Nicoll described the circumstances of her fall, stating:

As I walked up the curb, [my older daughter] stepped on the curb first, I stepped up second, and [my younger daughter] was behind me. I went to take my following step. When I took my following step, my right leg didn't move. It was just—I can't explain it. It just didn't move with me, and I fell forward.

(Id. at 44.) Nicoll stated that she assumed that she had stepped up with her right foot, she took a second step with her left foot, and then fell when she could not move her right foot, which was "stuck." (Id. at 46.) After the fall, Nicoll looked back at her ankle and noticed that the pavement was "cracked and broken apart." (Id. at 46.) Nicoll was initially diagnosed with a broken right ankle, but she has had continuing medical issues related to her ankle.

{¶ 6} On April 1, 2016, Nicoll filed a negligence claim against Centerville City Schools ("CCS") in the common pleas court. Nicoll's husband, Timothy, brought a loss of consortium claim against CCS. Nicoll's complaint also named the Ohio Tort Recovery Unit as a party-defendant, noting that the Ohio Department of Medicaid may have a subrogation claim. CCS and the Ohio Department of Medicaid filed answers, and the parties engaged in discovery, including the taking of Nicoll's deposition.

{¶ 7} On February 8, 2017, CCS moved for summary judgment on Nicoll's negligence claim. CCS acknowledged, for purposes of its motion, that it did not have sovereign immunity for the claim, pursuant to R.C. 2744.02(B). It claimed, however, that the hazard was "open and obvious," negating any duty to warn to Nicoll. Nicoll opposed the motion, claiming that whether the hazard was an open and obvious danger was a matter for the jury and that attendant circumstances—the need to focus on her children and the large crowd—diverted her attention from the curb.

{¶ 8} On May 31, 2017, the trial court granted CCS's motion for summary judgment. The trial court concluded that the condition of the curb and sidewalk where Nicoll fell was an open and obvious hazard, and that no attendant circumstances existed. The trial court certified its decision as immediately appealable, pursuant to Civ.R. 54(B).

{¶ 9} Nicoll appeals from the trial court's judgment.

II. Summary Judgment Standard

{¶ 10} 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).

{¶ 11} 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. " ‘[A] non-movant's own self-serving assertions, whether made in an affidavit, deposition or interrogatory responses, cannot defeat a well-supported summary judgment when not corroborated by any outside evidence.’ " Schlaegel v. Howell , 2015-Ohio-4296, 42 N.E.3d 771, ¶ 23 (2d Dist.), quoting White v. Sears, Roebuck & Co. , 10th Dist. Franklin No. 10AP-294, 2011-Ohio-204, 2011 WL 285824, ¶ 9. Throughout, the evidence must be construed in favor of the nonmoving party. Id.

{¶ 12} 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, citing Brewer v. Cleveland City Schools Bd. of Edn. , 122 Ohio App.3d 378, 383, 701 N.E.2d 1023 (8th Dist.1997).

III. Negligence Claim for Business Invitee

{¶ 13} 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. The status of a person who enters the land of another defines the scope of the legal duty owed to that person. Gladon v. Greater Cleveland Reg. Transit Auth. , 75 Ohio St.3d 312, 315, 662 N.E.2d 287 (1996).

{¶ 14} A business invitee "is one who enters another's land by invitation for a purpose that is beneficial to the owner." Id. With respect to business invitees, an owner's duty is to keep the premises in reasonably safe condition and warn of dangers that are known to the owner. Hill v. Mullins , 88 N.E.3d 575, 2017-Ohio-1302, ¶ 14. Liability only attaches when an owner has "superior knowledge of the particular danger which caused the injury," as an "invitee may not reasonably be expected to protect himself from a risk he cannot fully appreciate." Uhl v. Thomas , 12th Dist. Butler No. CA2008-06-131, 2009-Ohio-196, 2009 WL 119844, ¶ 13, citing LaCourse v. Fleitz , 28 Ohio St.3d 209, 210, 503 N.E.2d 159 (1986). It is undisputed that Nicoll was a business invitee.

{¶ 15} However, "if a danger is open and obvious, a property owner owes no duty of care to individuals lawfully on the premises." Armstrong v. Best Buy Co., Inc. , 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 14. To be open and obvious, a hazard must not be concealed and must be discoverable by ordinary inspection. Larrick v. J.B.T., Ltd. , 2d Dist. Montgomery No. 21692, 2007-Ohio-1509, 2007 WL 949494, ¶ 11, citing Parsons v. Lawson Co. , 57 Ohio App.3d 49, 50–51, 566 N.E.2d 698 (5th Dist.1989). The relevant issue is not whether an individual observes the condition, but whether the condition is capable of being observed. Id. , citing Lydic v. Lowe's Cos., Inc. , 10th Dist. Franklin No. 01AP-1432, 2002-Ohio-5001, 2002 WL 31111820, ¶ 10.

{¶ 16} "Attendant circumstances" may affect the applicability of the open and obvious doctrine. Attendant circumstances have not been and probably cannot be precisely defined, but the term has been held to include any distraction that would come to the attention of a person in the same circumstances and reduce the degree of care an ordinary person would exercise at the time. Speedway , 2d Dist. Montgomery No. 26851, 2016-Ohio-3358, 2016 WL 3219642, at ¶ 10. "Both circumstances contributing to and those reducing the risk of the defect must be considered. The totality of the circumstances of each case must be examined to determine if, as a whole, they create a substantial defect." Stockhauser v. Archdiocese of Cincinnati , 97 Ohio App.3d 29, 33, 646 N.E.2d 198 (2d Dist.1994), citing France v. Parliament Park Townhomes , 2d Dist. Montgomery No. 14264, 1994 WL 151658 (Apr. 27, 1994).

{¶ 17} For attendant circumstances to negate the application of the open and obvious doctrine, they must not only be present, but must create "a greater than normal, and hence substantial, risk of injury." Id. , citing Turner v. Burndale Gardens Co. , 2d Dist. Montgomery No. 12807, 1991 WL 270662 (Dec. 18, 1991). The attendant circumstances must, taken together, divert the attention of the person,...