Pearson v. Alpha Phi Alpha Homes, Inc., 032019 OHCA9, 29026

Docket Nº:C.A. 29026
Opinion Judge:LYNNE S. CALLAHAN, JUDGE.
Party Name:DOROTHY PEARSON Appellant v. ALPHA PHI ALPHA HOMES, INC., et al. Appellees
Attorney:KIMBERLY C. YOUNG and MICHAEL L. EISNER, Attorneys at Law, for Appellant. DENNIS M. PILAWA, Attorney at Law, for Appellees.
Judge Panel:TEODOSIO, P. J. CARR, J. CONCUR.
Case Date:March 20, 2019
Court:Court of Appeals of Ohio
 
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2019-Ohio-960

DOROTHY PEARSON Appellant

v.

ALPHA PHI ALPHA HOMES, INC., et al. Appellees

C.A. No. 29026

Court of Appeals of Ohio, Ninth District, Summit

March 20, 2019

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV-2016-05-2183

KIMBERLY C. YOUNG and MICHAEL L. EISNER, Attorneys at Law, for Appellant.

DENNIS M. PILAWA, Attorney at Law, for Appellees.

DECISION AND JOURNAL ENTRY

LYNNE S. CALLAHAN, JUDGE.

{¶1} Appellant, Dorothy Pearson, appeals from the judgment of the Summit County Common Pleas Court in favor of Appellees, Alpha Phi Alpha Homes, Inc. and E.T.L. Housing Corporation ("the Landlord"). For the reasons set forth below, this Court reverses.

I.

{¶2} The Landlord owns and maintains a multi-unit apartment building that was constructed in 1981. Ms. Pearson has been a tenant in this apartment building since 1991. In May 2014, Ms. Pearson was walking with another tenant from the rear of the building to the parking lot on a downward sloping, paved walkway when she tripped and fell, injuring herself.

{¶3} Ms. Pearson filed a complaint against the Landlord for common law negligence, negligence per se, and breach of contract. After conducting fact discovery and identifying experts, the Landlord filed a motion for summary judgment as to all of Ms. Pearson's claims. Ms. Pearson, however, only opposed the Landlord's motion for summary judgment as to the negligence per se claim. The trial court granted summary judgment in favor of the Landlord as to all of the claims.

{¶4} Ms. Pearson timely appeals from this judgment entry, asserting two assignments of error regarding the negligence per se claim.1 This Court will consider Ms. Pearson's assignments of error together as they present related issues.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN GRANTING [THE LANDLORD'S] MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF WHETHER THE RECORD CONTAINED ANY EVIDENCE THE LANDLORD HAD CONSTRUCTIVE NOTICE OF THE HAZARDOU[]S CONDITION WHICH CAUSED [MS. PEARSON'S] FALL[]

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN HOLDING NO EVIDENCE EXISTED IN THE RECORD TO CREATE A GENUINE ISSUE OF MATERIAL FACT ON THE ISSUE OF PROXIMATE CAUSE[]

{¶5} Ms. Pearson asserts that the trial court erred in granting summary judgment on the negligence per se claim for two reasons. First, the trial court improperly weighed her expert's affidavit filed in opposition to the Landlord's summary judgment motion and concluded that there was no genuine issue of material fact as to the Landlord's notice, actual or constructive, of the dangerous condition of the walkway. Second, the trial court failed to consider the entirety of Ms. Pearson's deposition transcript and to construe all reasonable inferences in her favor when it concluded that there was no genuine issue of material fact as to the element of proximate cause. This Court agrees that the trial court improperly weighed the evidence of Ms. Pearson's expert's report and failed to construe all of the evidence in a light most favorable to Ms. Pearson.

{¶6} This Court reviews an order granting summary judgment de novo. See Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-2220, ¶ 24, citing Doe v. Shaffer, 90 Ohio St.3d 388, 390 (2000). Additionally, questions regarding whether an affidavit satisfies Civ.R. 56(E) are reviewed de novo. See Hall v. Fairmont Homes, Inc., 105 Ohio App.3d 424, 434 (4th Dist.1995).

{¶7} Summary judgment is proper under Civ.R. 56(C) when: (1) no genuine issue as to any material fact exists; (2) the party moving for summary judgment 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 only reach one conclusion, and that conclusion is adverse to the nonmoving party. Civ.R. 56(C); Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).

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