Ray v. Wal-Mart Stores, Inc., 2009 Ohio 4542 (Ohio App. 8/25/2009)
| Decision Date | 25 August 2009 |
| Docket Number | No. 08CA41.,08CA41. |
| Citation | 2009 Ohio 4542 |
| Parties | Marianne Ray, et al., Plaintiffs-Appellants, v. Wal-Mart Stores, Inc., et al., Defendants-Appellees. |
| Court | Ohio Court of Appeals |
John E. Triplett, Jr., and Daniel P. Corcoran, 424 Second Street, Marietta, Ohio 45750, Attorney for Appellants.
D. Patrick Kasson, 65 East State Street, 4th Floor, Columbus, Ohio 43215, Attorney for Appellees.
DECISION AND JUDGMENT ENTRY
{¶ 1} This is an appeal from a Washington County Common Pleas Court summary judgment in favor of Wal-Mart Stores, Inc. and Wal-Mart Real Estate Trust, defendants below and appellees herein.
{¶ 2} Marianne Ray and John D. Ray, plaintiffs below and appellants herein, raise the following assignments of error for review:
{¶ 3} On July 28, 2003, Marianne Ray tripped over a black produce crate that partially protruded into the shopping aisle from underneath a table displaying corn. She sustained personal injuries as a result of her fall.
{¶ 4} On August 13, 2007, appellants re-filed a negligence and loss of consortium complaint against appellees. They also asserted a spoilation and destruction of evidence claim and alleged that appellees failed to preserve video tape evidence of Ray's fall.
{¶ 5} On September 24, 2007, appellees filed a summary judgment motion and argued that the hazard was open and obvious, thus obviating it of a duty to warn. Appellees further contended that it did not (1) create the hazard, or (2) have actual or constructive knowledge of the hazard.
{¶ 6} Appellants did not file an immediate substantive memorandum in opposition to appellees' summary judgment motion. Instead, they filed a motion to strike the depositions that appellees attached to their summary judgment motion. Appellants claimed that depositions were not proper because they were submitted in the previously-filed case. Appellants also filed a motion under Civ.R. 56(F) to continue the non-oral hearing regarding appellees' summary judgment motion until appellants conducted further discovery.
{¶ 7} On November 1, 2007, appellants filed an opposition memorandum to appellees' summary judgment motion. They asserted that summary judgment was not proper because they have not had sufficient opportunity to conduct discovery.
{¶ 8} On February 6, 2008, appellants filed a "bench brief," which apparently was a substantive memorandum in opposition to appellees' summary judgment motion. Appellants argued that genuine issues of material fact remained regarding whether the produce crates constituted an open and obvious hazard.
{¶ 9} The parties submitted four depositions in support of their respective positions. Wal-Mart Assistant Manager Nancy White testified that she was present at the store on the date of Ray's fall and filled out an incident report. She viewed the scene shortly after the incident and noticed that Ray fell over two stacked black produce crates, which together were approximately thirty inches by twenty inches and eight to ten inches tall. She stated that the crates were not supposed to be "in the traffic part of the aisle."
{¶ 10} Mr. Ray stated that he visited Wal-Mart the day after his wife's fall. He noticed that the floors were light-colored— either white, beige, or gray. In response to the question, "Was there anything about the display which would obstruct a black object sticking out into the aisle from being visible," he stated: In response to the question, "If you were walking around the table looking down and there were a black object sticking out beyond the edge of the table and beyond the edge of the skirt, is there anything which would obstruct and make that black object not visible," Mr. Ray stated, "No."
{¶ 11} Mrs. Ray stated that she did not see the produce crates before she fell, but she saw them after she fell, while sitting on the floor. She testified that the crates partially protruded from underneath a corner of the display of corn by less than twelve inches. She stated that she was not certain whether she would have seen them had she looked.
{¶ 12} After reviewing the evidentiary materials, the trial court granted appellees summary judgment. The court determined that the hazard was open and obvious and, thus, obviated appellees of a duty to warn Mrs. Ray of the danger. The court then entered a "decision and final judgment entry" that dismissed appellants' complaint. This appeal followed.
I
{¶ 13} In their first assignment of error, appellants assert that the trial court improperly determined that no genuine issues of fact remained regarding appellees' liability. Specifically, they argue that genuine issues of material fact remain as to whether: (1) appellees created the dangerous condition; (2) Mrs. Ray had a reasonable opportunity to inspect the hazard such that she should have discovered it and protected herself; (3) attendant circumstances existed to render the hazard latent and hence, not open and obvious; and (4) appellees had superior knowledge.
{¶ 14} Initially, we note that appellate courts conduct a de novo review of trial court summary judgment decisions. See, e.g., Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. Accordingly, an appellate court must independently review the record to determine if summary judgment is appropriate and need not defer to the trial court's decision. See Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153; Morehead v. Conley (1991), 75 Ohio App.3d 409, 411-12, 599 N.E.2d 786. Thus, to determine whether a trial court properly granted a summary judgment motion, an appellate court must review the Civ.R. 56 summary judgment standard, as well as the applicable law.
{¶ 15} Civ. R. 56(C) provides, in relevant part, as follows:
* * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show 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. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor.
{¶ 16} Thus, pursuant to Civ.R. 56, a trial court may not award summary judgment unless the evidence demonstrates that: (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) reasonable minds can come to but one conclusion, and after viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. See, e.g., Vahila v. Hall (1997), 77 Ohio St.3d 421, 429-30, 674 N.E.2d 1164.0 {¶ 17} Under Civ.R. 56, the moving party bears the initial burden to inform the trial court of the basis for the motion, and to identify those portions of the record that demonstrate the absence of a material fact. Vahila, supra; Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. The moving party cannot discharge its initial burden under the rule merely with a conclusory assertion that the nonmoving party has no evidence to prove its case. See Kulch v. Structural Fibers, Inc. (1997), 78 Ohio St.3d 134, 147, 677 N.E.2d 308; Dresher, supra. Rather, the moving party must specifically refer to the "pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any," which affirmatively demonstrate that the nonmoving party has no evidence to support the nonmoving party's claims. Civ.R. 56(C); Dresher, supra.
{¶ 18} "[U]nless a movant meets its initial burden of establishing that the nonmovant has either a complete lack of evidence or has an insufficient showing of evidence to establish the existence of an essential element of its case upon which the nonmovant will have the burden of proof at trial, a trial court shall not grant a summary judgment." Pennsylvania Lumbermans Ins. Corp. v. Landmark Elec., Inc. (1996), 110 Ohio App.3d 732, 742, 675 N.E.2d 65. Once the moving party satisfies its burden, the nonmoving party bears a corresponding duty to set forth specific facts showing that there is a genuine issue for trial. Civ.R. 56(E); Dresher, supra. A trial court may grant a properly supported summary judgment motion if the nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with specific facts showing that there is a genuine issue for trial. Id.; Jackson v. Alert Fire & Safety Equip., Inc. (1991), 58 Ohio St.3d 48, 52, 567 N.E.2d 1027.
{¶ 19} A successful negligence action requires a plaintiff to establish that: (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached the duty of care; and (3) as a direct and proximate result of the defendant's breach, the plaintiff suffered...
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