Smrtka v. Boote

• Decision Date: 31 March 2017
• Docket Number: No. 28057,28057
• Citation: 2017 Ohio 1187,88 N.E.3d 465
• Parties: Philip SMRTKA, Appellant v. Marvin L. BOOTE, et al., Appellee
• Court: Ohio Court of Appeals

88 N.E.3d 465

2017 Ohio 1187

Philip SMRTKA, Appellant

v.Marvin L. BOOTE, et al., Appellee

No. 28057

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

Dated: March 31, 2017

JAMES J. GUTBROD, Attorney at Law, Akron, for Appellant.

VICTORIA L. VANCE and MICHAEL J. RUTTINGER, Attorneys at Law, Cleveland, for Appellee.

MARK S. HURA, Attorney at Law, for Appellee.

DECISION AND JOURNAL ENTRY

CALLAHAN, Judge.

{¶ 1} Appellant, Philip Smrtka, appeals the judgment of the Summit County Court of Common Pleas granting summary judgment to Appellee, Gary Domanick, D.C., dba Richfield Chiropractic Center. For the reasons set forth below, this Court affirms.

I.

{¶ 2} Dr. Domanick is a chiropractor. Mr. Smrtka, Marvin and Marcia Boote, and their dog, Luke, are all patients of Dr. Domanick. On the day of the incident, Mrs. Boote and Luke were in the waiting room awaiting chiropractic treatment. As Mr. Smrtka was leaving Dr. Domanick's office, he attempted to pet Luke's chin, and was bit on the hand.

{¶ 3} At issue before this Court are Mr. Smrtka's claims against Dr. Domanick for negligence, chiropractic malpractice, and negligence per se. Each claim against Dr. Domanick is based upon Luke biting Mr. Smrtka's hand.

{¶ 4} Mr. Smrtka filed a partial motion for summary judgment as to his claims for negligence and negligence per se. Dr. Domanick filed a cross-motion for summary judgment as to all three claims. The trial court denied Mr. Smrtka's partial motion for summary judgment and granted Dr. Domanick's motion for summary judgment.

{¶ 5} Mr. Smrtka timely appeals, raising one assignment of error for review.

II.ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANT/APPELLEE GARY DOMANICK, D.C., dba RICHFIELD CHIROPRACTIC CENTER, AND IN OVERRULING THE MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF NEGLIGENCE FILED BY PLAINTIFF/APPELLANT PHILIP SMRTKA. IN PARTICULAR, THE TRIAL COURT ENGAGED IN FINDING FACTS AND WEIGHING THE EVIDENCE RATHER THAN FOLLOWING SUMMARY JUDGMENT PROCEDURE.

Standard of Review

{¶ 6} Appellate courts consider an appeal from summary judgment under a de novo standard of review.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). This Court uses the same standard that the trial court applies under Civ.R. 56(C), viewing the facts of the case in the light most favorable to the non-moving party and resolving any doubt in favor of the nonmoving party. Viock v. Stowe–Woodward Co., 13 Ohio App.3d 7, 12, 467 N.E.2d 1378 (6th Dist.1983). Accordingly, this Court stands in the shoes of the trial court and conducts an independent review of the record.

{¶ 7} Summary judgment is proper under Civ.R. 56 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 non-moving 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, 364 N.E.2d 267 (1977).

{¶ 8} Summary judgment consists of a burden-shifting framework. The movant bears the initial burden of demonstrating the absence of genuine issues of material fact concerning the essential elements of the nonmoving party's case. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). Specifically, the moving party must support the motion by pointing to some evidence in the record of the type listed in Civ.R. 56(C). Id. at 292–93, 662 N.E.2d 264. Once the moving party satisfies this burden, the non-moving party has a reciprocal burden to "set forth specific facts showing that there is a genuine issue for trial." Id. at 293, 662 N.E.2d 264. The non-moving party may not rest upon the mere allegations or denials in his pleadings, but instead submit evidence as outlined in Civ.R. 56(C). Id. at 293, 662 N.E.2d 264 ; Civ.R. 56(E).

{¶ 9} "In ruling on a motion for summary judgment, a trial court may not weigh the evidence and determine issues of fact." Horner v. Elyria, 9th Dist. Lorain No. 13CA010420, 2015-Ohio-47, 2015 WL 134218, ¶ 10. It also may not determine the credibility of the evidence. Turner v. Turner, 67 Ohio St.3d 337, 341, 617 N.E.2d 1123 (1993). Rather, the trial court must examine the evidence, taking all permissible inferences and resolving questions of credibility in favor of the non-moving party. Dupler v. Mansfield Journal Co., Inc., 64 Ohio St.2d 116, 121, 413 N.E.2d 1187 (1980).

{¶ 10} Mr. Smrtka and Dr. Domanick filed cross-motions for summary judgment on the claims of negligence and negligence per se. Mr. Smrtka's partial motion was limited to the elements of duty and breach of duty.

{¶ 11} Because he was only seeking partial summary judgment, Mr. Smrtka argues the trial court improperly analyzed the proximate cause element with respect to his motion. He also argues the trial court incorrectly weighed the evidence, and wrongly made reasonable inferences in favor of Dr. Domanick when addressing Dr. Domanick's summary judgment motion. While Smrtka is correct, these errors were not detrimental. The trial court's analysis and determination of proximate cause was superfluous in light of its findings that Dr. Domanick did not owe a common law duty (negligence) or a statutory duty (negligence per se) to Mr. Smrtka.

Negligence

{¶ 12} To prevail on a claim of negligence, Mr. Smrtka must establish the existence of a duty, a breach of the duty, and an injury proximately resulting from the breach of duty. Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984). Whether a duty exists is a question of law.

Williams v. Garcias, 9th Dist. Summit No. 20053, 2001 WL 111580, *2 (Feb. 7, 2001). In premises liability cases, the relationship between the owner of the premises and the injured party determines the duty owed. Hidalgo v. Costco Wholesole Corp., 9th Dist. Lorain No. 12CA010191, 2013-Ohio-847, 2013 WL 936245, ¶ 7. Here, the parties agree Mr. Smrtka was a business invitee.

{¶ 13} "A shopkeeper ordinarily owes its business invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition and has the duty to warn its invitees of latent or hidden dangers." Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 5, citing Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 203, 480 N.E.2d 474 (1985). An owner, however, owes no duty to warn business invitees of open and obvious dangers on the premises. Paschal at 203, 480 N.E.2d 474. Open and obvious dangers are discoverable upon ordinary inspection. Zambo v. Tom–Car Foods, 9th Dist. Lorain No. 09CA009619, 2010-Ohio-474, 2010 WL 520804, ¶ 8. An open and obvious danger is itself a warning and the owner "may reasonably expect that persons entering the premises will discover those dangers and take appropriate measures to protect themselves." Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 644, 597 N.E.2d 504 (1992). The open and obvious doctrine is a complete bar to any negligence claim. Armstrong at ¶ 5.

{¶ 14} In cases involving an open and obvious danger, "[i]t is only where it is shown that the owner had superior knowledge of the particular danger which caused the injury that liability attaches, because in such a case the invitee may not reasonably be expected to protect himself from a risk he cannot fully appreciate." LaCourse v. Fleitz, 28 Ohio St.3d 209, 210, 503 N.E.2d 159 (1986). Superior knowledge applies, not only to a duty to warn about dangers, but also to a duty to keep the premises safe. Debie v. Cochran Pharmacy–Berwick, Inc., 11 Ohio St.2d 38, 40, 227 N.E.2d 603 (1967), quoting 38 American Jurisprudence, Negligence, Section 97, at 757. "[T]he liability of an owner or occupant to an invitee for negligence in failing to render the premises reasonably safe for the invitee, or in failing to warn him of dangers thereon, must be predicated upon a superior knowledge concerning the dangers of the premises to persons going thereon." Id.

{¶ 15} Mr. Smrtka and Dr. Domanick rely upon two different rationales regarding the element of duty. Mr. Smrtka argues that Dr. Domanick owed him a duty to the keep the premises safe by complying with the statutes and his self-imposed rules. Mr. Smrtka contends Dr. Domanick breached that duty by allowing Luke in the office. Thus, Dr. Domanick had superior knowledge of a dangerous condition, Luke's mere presence, in the office. Dr. Domanick argues that he did not owe Mr. Smrtka a duty because Luke's presence in the office was an open and obvious condition and Dr. Domanick did not possess superior knowledge of a particular danger posed by Luke. After reviewing the record and the general duty element of negligence and the invitee duty standard, this Court finds that Dr. Domanick owed no duty to Mr. Smrtka and possessed no superior knowledge regarding a danger on the premises.

{¶ 16} As he was leaving Dr. Domanick's office, Mr. Smrtka observed Luke in the waiting area sitting calmly on his haunches between Mrs. Boote's legs and wearing a leash. Mr. Smrtka testified he "had heard rumors about Luke being around for seven, eight months and I assumed if he's in and out of the office he's got to be a cool dog, friendly dog, and there is Luke * * *.

And I just went up to him." Mr. Smrtka explained that he is a lifelong dog owner and, drawing on his experiences, he knows all dogs have different personalities, temperaments, and levels of friendliness.

{¶ 17} Mr. Smrtka had knowledge that a dog had been in Dr. Domanick's office on prior occasions. Moreover, Mr. Smrtka saw Luke as he was leaving Dr. Domanick's office and, knowing all dogs react differently, approached Luke. Accordingly, Luke's presence at the chiropractic office was an open and obvious danger to Mr. Smrtka. Whether Luke was properly on the premises does not change that fact. Mr. Smrtka's claims that Dr. Domanick had a duty to keep Luke off the...