CITY OF CUYAHOGA FALLS, et al. v. JUSTIN GAGLIONE
C.A. No. 28513
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
July 26, 2017
[Cite as Cuyahoga Falls v. Gaglione, 2017-Ohio-6974.]
TEODOSIO, Judge.
STATE OF OHIO, COUNTY OF SUMMIT ss: APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nо. CV-2016-05-2160
Dated: July 26, 2017
TEODOSIO, Judge.
{¶1} Defendant-Appellants, the City of Cuyahoga Falls and the City of Cuyahoga Falls Parks & Recreation Department (collectively, “the City“), appeal from the judgment of the Summit County Court of Common Pleas, denying their motion for summary judgment on the issue of sovereign immunity. This Court affirms.
I.
{¶2} Plaintiff-Appellee, Justin Gaglione, was playing basketball at the Natatorium in Cuyahoga Falls when he slipped and fell on a puddle of water that had collected on the floor next to the basketball court. The fall rendered Mr. Gaglione unconscious for a brief period of time and caused him to seek treatment for a concussion. Mr. Gaglione later learned that the City knew about the puddle before he fell, but had not cleaned the area, posted signs in the area, or otherwise taken measures to prevent its patrons from slipping.
{¶4} The City now appeals from the trial court‘s denial of its motion for summary judgment and raises three assignments of error for our review. For ease of analysis, we combine its assignments of error.
II.
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT ERRED IN HOLDING THAT THE EXCEPTION TO
ASSIGNMENT OF ERROR TWO
THE TRIAL COURT ERRED IN HOLDING THAT THE IMMUNITY DEFENSE IN
ASSIGNMENT OF ERROR THREE
THE TRIAL COURT ERRED IN FAILING TO GRANT THE CITY‘S MOTION FOR SUMMARY JUDGMENT BECAUSE GAGLIONE FAILED TO PROVE NEGLIGENCE.
{¶5} In its assignments of error, the City argues that the trial court erred when it denied its motion for summary judgment on the basis of sovereign immunity. We do not agree that the trial сourt erred.
{¶7} Appellate review of an award of summary judgment is de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Pursuant to
- (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the mоtion for summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).
{¶8} The party moving for summary judgment bears the initial burden of informing the trial court of the basis for the motion and pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292-93 (1996). “If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied.” Id. at 293. Only where the moving party fulfills this initial burden, does the burden shift to the nonmoving party to prove that a genuine issue of material fact exists. Id. “[T]he
{¶9} “In order to determine whether a political subdivision is immune from liability, we engage in a three-tiered analysis.” Moss v. Lorain Cty. Bd. of Mental Retardation, 9th Dist. Lorain No. 13CA010335, 2014-Ohio-969, ¶ 10, citing Cater v. Cleveland, 83 Ohio St.3d 24, 28 (1998). The first tier sets forth the premise that,
[e]xcept as provided in division (B) of [
R.C. 2744.02 ], a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.
{¶10} It is undisputed that the City is a political subdivision and that Mr. Gaglione brоught suit against it for an act performed or omitted “in connection with a governmental * * * function.”
The Second Tier: R.C. 2744.02(B)(4)
{¶11}
political subdivisions are liable for injury, death, or loss to person or property that is caused by the negligence of their employees and that оccurs within or on the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function * * *.
The exception, therefore, applies upon proof that an injury was “(1) caused by employee negligence; (2) on the grounds or buildings used in connection with the performance of that governmental function; and (3) due to a physiсal defect on or within those grounds or buildings.” Gibbs v. Columbus, Metro. Hous. Auth., 10th Franklin No. 11AP-711, 2012-Ohio-2271, ¶ 10. See also Dunfee v. Oberlin Sch. Dist., 9th Dist. Lorain No. 08CA009497, 2009-Ohio-3406, ¶ 13. The City argues that Mr. Gaglione failed to prove either that its employees were negligent or that he was injured as a result of a “physical defect.”
Negligence
{¶12} A claim of negligence requires a plaintiff to prove “the existence of a duty, a breach of that duty, and an injury proximately resulting from the breach of duty.” Mondi v. Stan Hywet Hall & Gardens, Inc., 9th Dist. Summit No. 25059, 2010-Ohio-2740, ¶ 11. Generally, business owners owe their invitees “a duty of ordinary cаre in maintaining [their] premises in a reasonably safe condition [as well as a] duty to warn * * *of latent or hidden dangers.” Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, ¶ 5. “When applicable, however, the open-and-obvious doctrine obviates the duty to warn and acts as a complete bar to any negligence claims.” Id. “The rationale behind the doctrine is that the open and obvious
{¶13} The City first argues that it did not owe a duty to Mr. Gagliоne because the puddle on which he slipped was an open and obvious danger. The City argues that the puddle was not concealed from view and, had he been attentive, Mr. Gaglione would have observed it. According to the City, Mr. Gaglione chose not to exercise caution when he chased a ball out of bounds and slipped on the puddle.
{¶14} The City presented limited evidence in support оf its argument that the puddle was an open and obvious danger. Paige Asche, the Natatorium‘s former Facility Manager, inspected the puddle before Mr. Gaglione‘s fall. She could not recall any details about the puddle when deposed, but did note in an incident report that it “was nowhere [] on the court or in the players (sic) way.” Only three individuals were deposed and, apart from Mr. Gaglione, none of thеm were able to offer testimony describing the puddle.
{¶15} In his deposition, Mr. Gaglione testified that, after he arrived at the Natatorium, he played one basketball game without incident. During the second game, however, he chased a ball out of bounds and slipped “right by the out of bounds line.” He testified that he did not know any water was there until he slipped. He also testified that he would not have seen the puddle evеn if he was looking because it was “clear colored” and located on the glazed gym
{¶16} Having reviewed the record, we must conclude that a genuine issue of material fact exists as to whether the puddle that caused Mr. Gaglione to fall was an open and obvious danger. As noted, in an open and obvious danger analysis, “[t]he determinative issue is whether the condition [was] observable.” Id. Though Ms. Asche was able to see the puddle, the record reflects that she had been told about it before she saw it. Mr. Gagliоne testified that, due to the clear color of the water and the nature of the gym floor, the puddle blended in and was not readily observable. Additionally, he presented security footage that showed three others slipping on the same spot within a brief time period. The record contains conflicting evidence as to whether the puddle was, in fact, observable upon ordinary inspection. Thus, a genuine issue of material fact remains on that issue, and the City was not entitled to summary judgment on the basis that it owed no duty to Mr. Gaglione. See Armstrong, 99 Ohio St.3d 79, 2003-Ohio-2573, at ¶ 5 (open and obvious doctrine, when applicable, abdicates duty to warn).
{¶17} The City next argues that it was entitled to judgment under
To prevail in a case where the plaintiff has allеgedly slipped on a foreign substance on the floor of the defendant‘s premises, the plaintiff must establish:
“(1) that the defendant through its officers or employees was responsible for the hazard complained of; or (2) that at least one of such persons had actual knowledge of the hazard and neglected to give adequate notice of its presence or remove it promptly; or (3) thаt such danger had existed for a sufficient length of time reasonably to justify the inference that the failure to warn against it or to remove it was attributable to a want of ordinary care.”
{¶18} In her deposition, Ms. Asche testified that she was aware that the Natatorium sufferеd from roof leaks when it rained. She indicated that it was raining the day Mr. Gaglione fell and that wet floor signs and buckets had been placed in certain areas of the facility, including the upper fitness and indoor track areas. Ms. Asche could not recall the majority of the details surrounding this incident, but agreed that she completed an incident report directly after it occurred. In the incident report, she wrоte that a patron approached her at approximately 5:00 p.m. and told her the gym ceiling was leaking. She wrote that she then went to the gym and saw that the leak “was nowhere [] on the [basketball] court or in the players (sic) way.” After spotting the leak, Ms. Asche attempted to find a wet floor sign or bucket to place in the area, but could find neither because all the available signs and buckеts were in use. She estimated that she looked for a sign or bucket for eight to fifteen minutes before returning to the front desk to help with a line that had formed. She testified that she “literally just walked up there” when Mr. Gaglione‘s brother ran up and told her that Mr. Gaglione had been injured.
{¶19} Ms. Asche agreed that her incident report described the leak in the gym as being located “on NW corner by curtain” and “Not on court – all the way up front.” Although she could not recall many details about the leak at the time of her deposition, including its exact size or location, she testified that she “assum[ed]” the leak was located there because “when there‘d be leaks in the gym, that‘s where the leak would usually occur * * *.” Ms. Asche did not recall
{¶20} As support for its motion for summary judgment, the City presented the court with two affidavits. The first affidavit was that of Heather Novelli, the Operations Supervisor for the Natatorium. In her affidavit, Ms. Novelli averred that, “[i]n [her] twelve years as an employee of the Natatorium, [she] [had] never seen a leak at the location where [Mr. Gaglione‘s fall] occurred.” The second affidavit was that of Todd Burdette, the Maintenance Supervisor for the Natatorium. In his affidavit, Mr. Burdette acknowledged that the Natatorium‘s roof leaked, but averred that, since Mr. Gaglione‘s fall, “[t]he specific area where [he] fell [had] not been reported as a wet area * * *.” The City used both affidavits as evidence that its employees did not have prior knowledge of a problem with a leak in the gym and that it was not a habitual leak.
{¶21} The City also based its summary judgment motion on certain deposition testimony. It noted that Mr. Gaglione described having gone directly to the basketball courts when he arrived. It further noted that he admitted it was raining outside, but that he could not recall if he had changed his shoes before he began playing. There is no dispute that Mr. Gaglione fell at 5:08 p.m., as security footage captured his fall. The City argued that a relatively short period of time elapsed between Ms. Asche learning about the leak and Mr. Gaglione‘s fall. Assuming his fall occurred due to the leak and not his wet shoes, the City argued that Ms. Asche was taking reasonable steps to address the leak before his fall occurred. Because Ms. Asche acted reasonably in dealing with the leak while simultaneously handling her other duties, the City argued, it did not breach any duty to Mr. Gaglione.
{¶23} Having reviewed the record, we must conclude that genuine issues of material fact remain with regard to whether the City breached the duties it owed Mr. Gaglione as a business invitee. While the City did not create the hazard that injured Mr. Gaglione, he set forth evidence that Ms. Asche had actual knowledge of it and returned to her normal duties without addressing the problem. See Stetz, 2015-Ohio-4358, at ¶ 11, quoting Tyson, 2012-Ohio-458, at ¶ 3, quoting Johnson, 141 Ohio St. at 589. Although the City set forth evidence that only a brief window elapsed between Ms. Asche receiving notice of the leak/puddle and Mr. Gaglione‘s fall, Mr. Gaglione presented enough evidence to create at least a genuine issue of material fact as to the reasonableness of her actions. Moreover, he set forth evidence that the City had knowledge of the leak long before his fall occurred, as Ms. Asche specifically stated that leaks in the gym “usually occur[red]” in that area. Upon review, the trial court did not err when it concluded that the City was not entitled to summary judgment on the issue of negligence.
Physical Defect
{¶24} As noted, the immunity exception set forth in
{¶25} The City argues that Mr. Gaglione was not injured as the result of a physical defect because “[t]he failure to post warning signs is not a ‘physical defect’ under
{¶26} The trial court did not base its physical defect finding on the City‘s alleged failure to post warning signs or the condition of the basketball court itself. The court specifically found that Mr. Gaglione set forth evidence of a physical defect in the form of the Natatorium‘s leaky roof, a defect that resulted in a water accumulation on the gym floor. In its brief, the City has not addressed the trial court‘s finding to that effect. See
{¶27} Several individuals either testified or averred that the Natatorium suffered from roof leaks and that the City would put out either wet floor signs or buckets when rain caused it to leak. Moreover, Ms. Asche specifically testified that the leak in the gym “usually occur[red]” in the same location, which was the location where Mr. Gaglione fell. Mr. Gaglione, therefore, set forth evidence that a physical defect (i.e. the leaky roof) caused his injury, and the trial court did not err by denying the City summary judgment on that issue. See Hawsman at ¶ 23 (defining “physical defect“).
The Third Tier: R.C. 2744.03(A)(5)
{¶29} Under the third tier of a sovereign immunity analysis, a political subdivision‘s immunity may be restored “if one of the defenses enumerated in
[t]he political subdivision is immune from liability if the injury * * * to person * * * resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.
{¶30} The City argues that the trial court erred by not awarding it summary judgment on the basis of
{¶31} As noted, the discretionary defense contained in
III.
{¶32} The City‘s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified сopy of this journal entry shall constitute the mandate, pursuant to
Costs taxed to Appellants.
THOMAS A. TEODOSIO
FOR THE COURT
CARR, P. J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
RUSSELL W. BALTHIS, Director of Law, JANET M. CIOTOLA, Deputy Law Director, and MATTHEW A. DICKINSON, Assistant Director of Law, for Appellants.
JOHN M. HERRNSTEIN, Attorney at Law, for Appellee.