Wise v. E. Hall Funeral Home, Inc.
| Docket Number | 21CA6 |
| Decision Date | 01 February 2022 |
| Citation | 2022 Ohio 394 |
| Parties | JESSIE FERN WISE, Plaintiff-Appellant, v. E. HALL FUNERAL HOME, INC., Defendant-Appellee. |
| Court | Ohio Court of Appeals |
Brigham M. Anderson, Anderson & Anderson Co., L.P.A Ironton, Ohio for Appellant.
Daniel J. Hurley, Plunkett Cooney, Columbus, Ohio for Appellee.
DECISION AND JUDGMENT ENTRY
{¶1} This is an appeal from a Lawrence County Court of Common Pleas judgment awarding summary judgment in favor of appellee, E. Hall Funeral Home, Inc., on appellant's Jessie Fern Wise's, negligence claim. Appellant asserts two assignments of error: (1) "The trial court erred when it made a factual determination that the pebble or rock that caused the plaintiff-appellant's fall and injuries was a minor or trivial imperfection, not unreasonably dangerous and which is commonly encountered and to be expected while traversing parking lots and not a genuine issue of any material fact," and (2) "the trial court erred when it made a factual determination that the pebble or rock was an open and obvious defect."[1] Having reviewed appellant's arguments, the record, and the pertinent law, we overrule both of her assignments of error, and affirm the trial court's summary judgment in favor of appellee.
{¶2} Appellee is the owner of a funeral home. Appellant attended a funeral at appellee's place of business when she stepped on a rock in the parking lot causing her to fall and injure her ankle and elbow. On March 18, 2020, appellant filed a complaint alleging that appellee, as a business, owed a duty to keep its property "safe and to guard [her] against any danger while she was on the premises." Appellant alleged that appellee "knew or with reasonable caution should have known that the parking lot contained loose pavement creating a dangerous situation for its customers." As a result of this negligence, appellant fell and was injured. She sought to recover $25, 000. Appellee filed an answer denying liability, as well as affirmative defenses.
{¶3} On October 15, 2020, appellee's counsel deposed appellant. Appellant testified that after attending a funeral at appellee's funeral home, she along with her ex-husband and two nieces were crossing the parking lot to get to their vehicle. As appellant was walking and talking to her niece her "ankle twisted out from under [her]" causing her to fall. Appellant claimed that the fall occurred because she stepped on a dime-sized rock. The rock was solitary and the same color as the asphalt. There were other people in the parking lot who witnessed the fall and appellant's niece noticed the rock afterwards.
{¶4} As a result of the fall, appellant suffered a fractured arm. An orthopedist prescribed physical therapy to treat the fracture. However, after several therapy sessions, appellant claimed that another x-ray indicated her arm was not healing. Consequently, she underwent surgery to repair the fracture.
{¶5} Appellee filed a motion for summary judgment alleging that there was no genuine issue of material fact supporting appellant's allegations. A property owner owes no duty of care to visitors for dangers in the premises that are "open and obvious" or for "trivial imperfections." Appellee argued that because the rock was an open and obvious or trivial defect in the property, it had no duty to warn appellant of the rock in the parking lot.
{¶6} Appellant filed a memorandum contra claiming that the rock was not an open and obvious defect because it was a single, dime-sized rock that was the same color as the pavement in the parking lot. Based on the same facts, appellant also argued that the rock was not a trivial defect.
{¶7} On March 16, 2021, the trial court issued a judgment entry granting Appellee's motion for summary judgment. The court found the rock in this case was (1) a minor imperfection in the parking lot and (2) was an open and obvious defect because it was observable at the time of appellant's fall. Therefore, the trial court granted summary judgment in favor of appellee. It is this judgment that appellant appeals.
{¶8} "We review the trial court's decision on a motion for summary judgment de novo." DeepRock Disposal Sols., LLC v. Forte Productions, LLC, 4th Dist. Washington No. 20CA15, 2021-Ohio-1436, ¶ 67, citing Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12. "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." Worthy v. Hawthorne, 4th Dist. Lawrence No. 20CA5, 2021- Ohio-813, ¶ 12, citing Brown v. Scioto Bd. of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993).
{¶9} "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." Dillon v. Siniff, 4th Dist. Ross No. 11CA3268, 2012-Ohio-910, ¶ 17, citing Vahila v. Hall, 77 Ohio St.3d 421, 429-430, 674 N.E.2d 1164 (1997). The moving party must rely on" '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." Walsh v. Walsh, 4th Dist. Lawrence No. 8CA4, 2008-Ohio-5701, ¶ 8, quoting Civ.R. 56(C). If the moving party fails to establish "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." Hawthorne, 4th Dist. Lawrence No. 20CA5, 2021-Ohio-813, ¶ 16, quoting Pennsylvania Lumbermens Ins. Corp. v. Landmark Elec., Inc., 110 Ohio App.3d 732, 742, 675 N.E.2d 65 (2d Dist.1996) and Civ.R. 56(E). However, if "the moving party satisfies its burden, the nonmoving party bears a corresponding duty to set forth specific facts to show that a genuine issue exists." Id., citing Civ.R. 56(E).
{¶10} " The purpose of summary judgment is not to try issues of fact, but rather to determine whether triable issues of fact exist.'" Greene v. Partridge, 2016-Ohio-8475, 78 N.E.3d 197 ¶ 15, (4th Dist.), quoting McGee v. Goodyear Atomic Corp., 103 Ohio App.3d 236, 242-243, 659 N.E.2d 317 (4th Dist.1995). Consequently, when ruling on a motion for summary judgment "a court must not 'consider either "the quantum" or the "superior credibility" of evidence.'" Id., quoting McGee at 242. And the court must construe the record and all inferences from the evidence in favor of the nonmoving party. State ex rel. Deem v. Pomeroy 2018-Ohio-1120, 109 N.E.3d 30, ¶ 19 (4th Dist.), Civ.R. 56(C).
{¶11} Summary judgment may be granted "if the moving party establishes that (1) there is no genuine issue of material fact, (2) reasonable minds can come to but one conclusion, which is adverse to the party against whom the motion is made and, (3) the moving party is entitled to judgment as a matter of law." Marietta v. Verhovec, 4th Dist. Washington No. 19CA24, 2020-Ohio-7020, ¶ 21, citing Capital One Bank (USA) N.A. v. Rose, 4th Dist. Ross No. 18CA3628, 2018-Ohio-2209, ¶ 23.
{¶12} The issue in this case is whether appellee was negligent. In order to establish a claim for negligence, a plaintiff must show "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 injury." Wright v. Village of Williamsport, 2019-Ohio-2682, 140 N.E.3d 1, ¶ 22 (4th Dist.), citing Texler v. D.O. Summers Cleaners, 81 Ohio St.3d 677, 680, 693 N.E.2d 271 (1998), Jeffers v. Olexo, 43 Ohio St.3d 140, 142, 539 N.E.2d 614 (1989), Menifee v. Ohio Welding Products, Inc., 15 Ohio St.3d 75, 472 N.E.2d 707 (1984).
{¶13} In a premises liability case, like the one at hand, the duty owed by a landowner to individuals visiting the property is determined by the relationship between the parties. Light v. Ohio University, 28 Ohio St.3d 66, 68, 502 N.E.2d 611 (1986). Ohio ascribes to the common-law classifications of invitee, licensee, and trespasser in cases of premises liability which determines the standard of care owed to the individual. Shump v. First Continental-Robinwood Assoc, 71 Ohio St.3d 414, 417, 1994-Ohio-427, 644 N.E.2d 291 (1994). A person "who rightfully come[s] upon the premises of another by invitation, express or implied, for some purpose which is beneficial to the owner" is an "invitee." Gladon v. Greater Cleveland Reg'l Transit Auth., 75 Ohio St.3d 312, 315, 1996-Ohio-137, 662 N.E.2d287. "A landowner owes an invitee the duty to 'exercise ordinary care to render the premises reasonably safe.'" Combs v. Ohio Dept of Nat. Resources, Div. of Parks & Recreation, 146 Ohio St.3d 271, 2016-Ohio-1565, 55 N.E.3d 1073, ¶ 9, quoting Cincinnati Baseball Club Co. v. Eno, 112 Ohio St. 175, 147 N.E. 86 (1925), (paragraph one of the syllabus).
{¶14} "Keeping the premises in a reasonably safe condition generally means that a premises owner (1)...
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