2018 Ohio 546
Ohio Ct. App.2018Background
- On Dec. 14, 2013, Donna Capella slipped and fell on wet/icy public sidewalk outside the Mercantile Lofts apartment building in Hamilton, Ohio; she had recently signed a lease for an apartment there.
- Historic Developers owned/managed the building; Coon Restoration was the contractor that completed renovations in 2011; Hamilton SID contracts for downtown sidewalk snow/ice removal and had hired Cox Maintenance.
- Capella initially sued in 2014, voluntarily dismissed while summary judgment motions were pending, and refiled the same claims (negligence per se and common-law negligence) in Jan. 2017.
- Defendants moved for summary judgment; the trial court granted Capella limited additional discovery time under Civ.R. 56(F), later granted summary judgment for defendants, and struck portions of Capella’s affidavit as inconsistent with her deposition.
- The trial court held Capella produced no evidence identifying the source of the water/ice or any defect in the Mercantile Lofts drainage system and had no expert opinion tying a construction defect to an unnatural accumulation.
- The appellate court affirmed: no abuse of discretion in discovery rulings or striking affidavit portions; no genuine issue of material fact on negligence per se or common-law negligence (open-and-obvious winter hazard, lack of proof of causation or defendant knowledge).
Issues and Key Cases Cited
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Trial court abused discretion by granting only a 52‑day Civ.R. 56(F) extension (not 120 days) | Capella asserted she needed more time because lead counsel withdrew and additional discovery was required | Defendants noted motions were routine after refiling; plaintiff had prior discovery and ample time; she didn’t cite counsel withdrawal in initial motions | No abuse of discretion; 52 days was reasonable under the circumstances — motion denied (affirmed) |
| Motion to strike parts of plaintiff affidavit | Stricken paragraphs merely supplemented deposition testimony | Portions contradicted Capella’s prior deposition where she said she did not see source of water/ice | Stricken paragraphs were inconsistent with deposition; trial court did not abuse discretion (affirmed) |
| Negligence per se (statutory/code violations: Ohio Landlord‑Tenant Act, Ohio Basic Building Code, Hamilton ordinances) | Historic Developers/Coon/Cox/Hamilton SID violated codes and caused an unnatural accumulation of ice from downspout drainage | No evidence tying the building’s gutters/downspouts to the water/ice where Capella fell; no expert tying a construction defect to an unnatural accumulation; some statutes apply only to landlords | No genuine issue of material fact: plaintiff failed to prove statutory violation caused her injury or defendant knew/should have known; summary judgment affirmed |
| Common‑law negligence (duty/breach/proximate cause; open‑and‑obvious/winter rule) | Defendants knew of recurring drainage/ice problem and failed to remedy; creates question for jury under ‘‘unnatural/improper’’ accumulation exceptions | Winter weather and ordinary wet/icy sidewalks are open and obvious; defendants applied salt; plaintiff failed to show causation or that defendants created the hazard | No duty to remedy obvious winter condition; ice/water was open and obvious and typical of winter hazards; summary judgment affirmed (dissent would have allowed jury to decide re: landlord notice) |
Key Cases Cited
- Byrd v. Smith, 110 Ohio St.3d 24 (Ohio 2006) (an affidavit contradicting prior deposition cannot create a genuine issue without explanation)
- Sikora v. Wenzel, 88 Ohio St.3d 493 (Ohio 2000) (failure to comply with building code may support negligence per se in appropriate circumstances)
- Norwalk v. Tuttle, 73 Ohio St. 242 (Ohio 1906) (historical statement of the ‘‘no-duty’’ rule for ordinary winter hazards)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (abuse-of-discretion standard explained)
- Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (party moving for summary judgment bears initial burden; nonmoving must then produce evidence of genuine issue)