Rainey v. Harshbarger

Decision Date09 November 1963
Citation7 Ohio App.2d 260,220 N.E.2d 359
Parties, 36 O.O.2d 374 RAINEY, Appellant, v. HARSHBARGER, d. b. a. Roll-Away Lanes, Appellee.
CourtOhio Court of Appeals

Garver Oxley and Russell E, Rakestraw, Findlay, for appellant.

Betts & Betts, Findlay, for appellee.

GUERNSEY, Judge.

The allegations of plaintiff's petition essential to this appeal are as follows:

'* * * that the defendant is the owner and operator of a bowling alley * * *.

'* * * that on the 28th day of February, 1960, at 7:30 o'clock p. m. she (plaintiff) entered upon the business premises of the defendant for the purpose of bowling and that at the time she entered said premises, it was cold and snowing and that the private sidewalks and entrances to the defendant's buildings were covered with a light snow. * * * that upon entering the building of the defendant, she told the defendant that it was snowing and that he had better clean his sidewalks.

'* * * that when she had completed her bowling that she proceeded to leave the premises * * * and that she walked out the door and down the aforesaid entrance ramp to the point where said ramp and sidewalk join; that at that point she turned to her left and slipped on ice on said walk which was covered with snow. That it was still snowing when plaintiff left the building and that there had been no cleaning or sweeping of the ramp or sidewalks from the time that she had entered upon defendant's premises. That, as she turned, she slipped on ice that was on said walk, and that as a result of this ice on the sidewalk, she fell to the sidewalk with great force and violence causing her to sustain as a result thereof * * * injuries * * *.'

In his answer defendant, among other things, admits ownership and operation of the bowling alley; 'that the weather was cold and snowing; and that the plaintiff at the time of her entrance to defendant's premises had knowledge of the snowy and icy condition of the sidewalks and entrances to said building as alleged in her petition.' Defendant then alleges plaintiff's negligence under the circumstances.

In reply plaintiff denies her negligence and specifically denies 'that she knew that said walk was icy under the snow.'

On this state of the pleadings defendant moved for summary judgment and for judgment on the pleadings. In support of his former motion defendant filed and offered his deposition taken of plaintiff as upon cross-examination. No other depositions, affidavits, or interrogatories were filed by either party in support of or contra the motion for summary judgment. The following questions and answers in said deposition are pertinent to this appeal:

'Q. And what were the weather conditions at that time? A. It was snowing a little bit.

'* * *

'Q. And what was the temperature at that time? A. I don't know but it was getting colder at that time.

'Q. Was it freezing at that time? A. If I recollect right I believe it started to freeze a little bit at that time.

'* * *

'Q. Now what did you do when you arrived at the bowling alley? A. Well I got out of the car and started to go in the bowling alley * * * and as we was going in, there was snow on the sidewalk. As we went up the ramp there was a little snow on there and we went inside.

'Q. And then what did you do? A. Why I yelled at Hash, Mr. Hashbarger, and told him he'd better sweep his sidewalks. Now whether he heard me or not, I don't know, but I did yell at him and tell him. Of course we was always kidding out there and having fun, but I don't know whether he heard me or not.

'* * *

'Q. Now obviously you noticed this condition when you entered? A. I noticed the light snow, but no ice of any kind.

'Q. Now when you entered the building you were apprehensive that there was some condition of danger there, apparently, or you would not have warned the defendant; is this correct? A. Well I just figured that he should sweep it off so that there would be nobody fall and I was, that was just the way I felt about it. I just told him because I thought somebody might accidentally fall.

'Q. Well you recognized that that possibility existed when you entered the building, is that right?

'* * *

'A. Yes, because-

'* * *

'Q. And there was a light snow falling (when you left the building) comparable, or about a like snow as when you went in? A. It was just a light snow.

'Q. And what do you say about the temperature at that time? A. Oh it was pretty chilly.

'Q. You say the temperature had fallen during that period of time? A. Yes I would say it had.

'Q. This was from 7:30 in the evening until what time was it when you left? A. Oh I imagine it was right around 9:00 or a little after, something like that.

'* * *

'Q. And isn't it possible that the walks could have been cleaned during the time you were in the building bowling? A. Oh I suppose they could have been.

'Q. And if the snow continued to fall it is also possible that there would have been snow on the walk, fall on the walk after it had been cleaned; is that not right? A. I imagine.

'* * *

'Q. Did you ask about another exit? A. No sir.

'* * *

'Q. How long have you been bowling there? A. I think I bowled there three years * * *.'

The Common Pleas Court granted the motion for summary judgment and entered judgment in favor of the defendant. This is the judgment from which this appeal on questions of law is taken, the plaintiff, appellant herein, assigning error as follows:

'1. Error of law in that the court failed to find as a matter of law that there was a genuine issue as to material facts.

'2. That the court erred in not finding as a matter of law that the defenses of contributory negligence and assumption of the risk are affirmative defenses and are questions of fact not law.

'3. Error of law in determining, that as a legal conclusion, the negligence of the pleader contributed to her injury.

'4. Error of law in that the court did not find as a matter of law that the plea of contributory negligence admits the negligence of the pleader and presents a question of fact not law.'

An examination of the memorandum decision filed by the lower court pursuant to which its journal entry of judgment was entered reveals the following language:

'It is apparent from the plaintiff's allegations that she knew of the existence of a condition which she considered dangerous; further they leave no doubt of the fact that she assumed the risk. * * *

'* * * The plaintiff has totally and wholly failed to plead a duty owing by the defendant to the plaintiff. * * *

'* * *

'* * * It is thus apparent that there may be an area of disputed fact; at least the matter or issue as to the ice is not met clearly and head on. The court feels, however, it is inconsequential and would undoubtedly be met by hurdles later in the proceedings which would be forbiddable.

'* * *

'Motion for summary judgment granted. Defendant's motion for judgment on the pleadings ruled moot. * * *'

The judgment of the Common Pleas Court may stand only if that court could properly conclude that (1) the defendant was not negligent, or (2) that the plaintiff had assumed the risk, or (3) that the plaintiff was contributorily negligent.

Some states do not permit the entry of a summary judgment in tort actions. 49 Corpus Juris Secundum Judgments, § 220b(1), p. 391. However, the Ohio statute (Section 2311.041, Revised Code) is broad enough to permit summary judgment in a tort action when there is no genuine issue as to any meterial fact and where the moving party is entitled to judgment as a metter of law. Thus, for the Common Pleas Court to conclude in favor of the defendant with respect to the negligence of plaintiff, the conclusion must be reached as a matter of law. Further, under the Ohio statute 'the party against whom the motion for summary judgment is made is entitled to have such depositions, answers to interrogatories, admissions of the genuineness of papers or documents, and affidavits construed most atrongly in his favor.' Compare Bohn Aluminum & Brass Corp. v. Storm King Corp. (C.C.A.6), 303 F.2d 425, as to the federal rules.

Although the Ohio statute (Section 2311.041, Revised Code) provides that '(w) hen a motion for summary judgment is made and supported as provided in this section, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this section, must set forth specific facts showing that there is a genuine issue for trial', the duty to make a response does not arise until and unless the motion is supported by documents, as provided by that section, showing prima facie that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The failure of the plaintiff in this case to file any affidavits, depositions, or answers to interrogatories in response to the deposition filed by defendant does not in any manner lessen the defendant's duties, as set forth in 49 Corpus Juris Secundum, Judgments § 225b, p. 418:

'On a motion by defendant for summary judgment dismissing the complaint, his affidavits must set forth evidentiary facts showing the sufficiency of his defense. He must make out a clear case on undisputed material facts presented on the record. * * *.'

See, also, 49 Corpus Juris Secundum Judgments § 225c, p. 420.

Plaintiff's petition plainly shows that she was a business invitee of defendant. Although we have not found that the Supreme Court of Ohio has specifically adopted the common-law rules of negligence relating to business invitees set forth in the Restatement of Torts, we find the Supreme Court decisions not to be inconsistent therewith nor to preclude their application. We consider the following from II Restatement of the Law of Torts 939 et seq., Section 343, particularly pertinent:

'A possessor of land is subject to liability for bodily harm caused to business visitors...

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