Pickens v. Kroger Co.
2014 Ohio 4825
Ohio Ct. App.2014Background
- On July 9, 2011, Janetta Pickens slipped and fell inside a Kroger store, allegedly on a float (root beer and ice cream) spill near a medium-sized cup and a wooden stand.
- Pickens filed suit alleging Kroger’s negligence; Kroger moved for summary judgment on November 7, 2013, submitting Pickens’s deposition.
- Pickens obtained an extension to respond, then filed a memorandum contra and an affidavit (Dec. 31, 2013) that described an obstructing wooden stand and that the spill blended with the tan floor.
- Kroger moved to strike Pickens’s affidavit as contradictory to her deposition; the trial court granted the motion to strike and granted summary judgment for Kroger on Feb. 18, 2014.
- Pickens appealed, raising two errors: (1) summary judgment was improper because genuine issues of material fact existed (including that Kroger created the hazard and it was not open and obvious); (2) the court erred in striking her affidavit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by striking Pickens's affidavit | Affidavit clarifies deposition and should be considered | Affidavit contradicts prior deposition and is a sham; no response to motion to strike | Court did not abuse discretion: affidavit contradicted deposition (claimed an obstruction) and lacked sufficient explanation, so striking was proper |
| Whether summary judgment was improper because genuine issues of material fact remained | Spill created foreseeable hazard and was not open and obvious; needed more discovery/time | Deposition admitted Pickens would have seen the spill if she had been looking, so hazard was open and obvious; no evidence Kroger created the spill | Summary judgment proper: spill was observable/open-and-obvious as a matter of law, so Kroger owed no duty to warn |
| Whether the court abused discretion by denying additional discovery/continuance under Civ.R. 56(F) | Pickens requested more time and said additional discovery would produce supporting affidavit | No formal Civ.R. 56(F) motion or supporting affidavit; lack of diligence and no specifics on needed discovery | No abuse of discretion: request did not meet Civ.R. 56(F) requirements and record shows no particularized basis for continuance |
| Whether Pickens produced evidence Kroger created the hazard | Argues discovery would have shown creation of hazard | No evidence in record that Kroger created the spill; deposition admissions defeat duty to warn claim | Held: no evidence Kroger created the spill; open-and-obvious finding disposes of negligence claim |
Key Cases Cited
- Byrd v. Smith, 110 Ohio St.3d 24 (2006) (an affidavit that contradicts a party’s deposition cannot defeat summary judgment without sufficient explanation)
- Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203 (1985) (business owner owes invitees ordinary care but is not insurer of invitee safety)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (moving party must initially show absence of genuine issue by pointing to Civ.R. 56(C) evidence)
- Murphy v. Reynoldsburg, 65 Ohio St.3d 356 (1992) (summary judgment requires resolving doubts and construing evidence in favor of nonmoving party)
- Todd Dev. Co., Inc. v. Morgan, 116 Ohio St.3d 461 (2008) (standards for summary judgment under Civ.R. 56 explained)