Stinespring v. Natorp Garden Stores, Inc.

• Decision Date: 24 April 1998
• Docket Number: No. C-970326,C-970326
• Parties: STINESPRING et al., Appellants, v. NATORP GARDEN STORES, INC., Appellee.
• Court: Ohio Court of Appeals

Page 213

127 Ohio App.3d 213

711 N.E.2d 1104

STINESPRING et al., Appellants, v. NATORP GARDEN STORES, INC., Appellee.

No. C-970326.

Court of Appeals of Ohio First District, Hamilton County.

Decided April 24, 1998.

David A. Caldwell, Cincinnati, for appellants.

Bradley A. Powell, Cincinnati, for appellee.

DOAN, Judge.

Plaintiff-appellant Sarah Stinespring was injured while playing on a jungle gym located on property owned by defendant-appellee, Natorp Garden Stores, Inc. She and her parents, plaintiffs-appellants Wayne Stinespring and Christina Stinespring, filed suit against Natorp, alleging that the jungle gym was unreasonably dangerous and that Sarah's injuries were the result of Natorp's negligence. Subsequently, Natorp filed a motion for summary judgment.

The evidentiary materials supporting and opposing summary judgment showed that on May 2, 1996, Sarah, who was then five years old, went with her father and her brother Nicholas, who was then seven years old, to Natorp's Hamilton Avenue store. While Wayne Stinespring went to look at flowers, Sarah and Nicholas went to play on the wooden jungle gym that Natorp provided for the use of its patrons and their children. The jungle gym had a swing and a trapeze, located side by side.

Both children wanted to play on the trapeze, but Sarah got on it first, hanging by her hands. At the same time, she somehow wrapped her leg around the chain of the swing. To get Sarah off the trapeze, Nicholas reached over and tapped one of Sarah's hands, causing her to lose her grip on the bar. When she fell, the chain tightened around her leg, and she became suspended upside down. The chain was made of twisted wire links with sharp ends. It became embedded in her leg and had to be surgically removed, leaving a prominent, disfiguring scar.

The trial court granted Natorp's motion for summary judgment, holding that the Stinesprings failed to present any evidence that the jungle gym was inherently dangerous. It also stated that "[t]he evidence establishes, as a matter of law, that the horseplay between Sarah and Nicholas was the direct cause of Sarah's injury." This appeal followed.

In their sole assignment of error, the Stinesprings state that the trial court erred in granting summary judgment in favor of Natorp. They argue that a merchant who provides playground equipment for the use of customers' children must anticipate that the children may engage in horseplay and the merchant has a duty to provide equipment that is safe under all reasonably foreseeable circumstances. They further argue that a swing set equipped with metal chains with wire links sharp enough to severely lacerate a child's leg is inherently dangerous. We find this assignment of error to be well taken, although not entirely for the reasons stated by the Stinesprings.

Summary judgment is appropriate if (1) there is no issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) 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, who is entitled to have the evidence construed most strongly in his or her favor. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47. In Dresher v. Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264, the Ohio Supreme Court outlined the respective burdens on the party moving for summary judgment and the nonmoving party:

"[W]e hold that a party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party." Id. at 293, 662 N.E.2d at 274.

The moving party bears its burden even on issues on which the plaintiffs would have the burden of proof should the case go to trial. Id. at 294-95, 662 N.E.2d at 274-275. Consequently, merely alleging that the nonmoving party lacks evidence on an issue on which it would bear the burden of proof at trial does not satisfy the moving party's obligation. Further, until the moving party meets its burden, the nonmoving party is under no corresponding duty to present evidence showing that there is a material issue of fact for trial. Vahila v. Hall (1997), 77 Ohio St.3d 421, 430, 674 N.E.2d 1164, 1171; Boutsicaris v. Akron Gen. Med. Ctr. (May 14, 1997), Summit App. No. 17941, unreported, 1997 WL 270552.

A business owner owes business invitees a duty of ordinary care, which includes the duty to maintain the premises in a reasonably safe condition and to warn an invitee of latent or concealed defects of which the owner has or should have knowledge. Perry v. Eastgreen Realty Co. (1978), 53 Ohio St.2d 51, 52-53, 7 O.O.3d 130, 130-131, 372 N.E.2d 335, 336; Kubiszak v. Rini's Supermarket (1991), 77 Ohio App.3d 679, 686, 603 N.E.2d 308, 313. While a business owner is not an insurer of the safety of invitees, the duty to exercise reasonable care for their protection " 'is a full one, applicable in all respects and extending to everything that threatens the invitee with an unreasonable risk of harm.' " Perry, supra, at 52, 7 O.O.3d at 131, 372 N.E.2d at 336, quoting Prosser, Law of Torts (4 Ed.1971) 392-393. The owner must not only warn an invitee of latent defects of which the owner knows, but must also inspect the premises to discover possible dangerous conditions of which the owner does not know, and take reasonable precautions to protect the invitee from dangers that are foreseeable. Id., 53 Ohio St.2d at 52, 7 O.O.3d at 130-131, 372 N.E.2d at 336.

The amount of care required to discharge a duty owed to a child of tender years is necessarily greater than that required to discharge a duty to an adult. Di Gildo v. Caponi (1969), 18 Ohio St.2d 125, 47 O.O.2d 282, 247 N.E.2d 732, paragraph one of the syllabus. "Children of tender years, and youthful persons generally, are entitled to a degree of care proportioned to their inability to foresee and avoid the perils that they may encounter[.]" Id. at 127, 47...