STEVEN W. GREGORY v. TOWNE PROPERTIES, INC., ET AL.
Appellate Case No. 26410
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
February 6, 2015
[Cite as Gregory v. Towne Properties, Inc., 2015-Ohio-443.]
Trial Court Case No. 2013-CV-07846 (Civil Appeal from Common Pleas Court)
Rendered on the 6th day of February, 2015.
SEAN BRINKMAN, Atty. Reg. No. 0088253, AARON G. DURDEN, Atty. Reg. No. 0039862, 10 West Monument Avenue, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellant
ROBERT W. HOJNOSKI, Atty. Reg. No. 0070062, IAN MITCHELL, Atty. Reg. No. 0090643, 525 Vine Street, Suite 1700, Cincinnati, Ohio 45202 Attorneys for Defendant-Appellee
{¶ 1} Plaintiff-Appellant, Steven Gregory, appeals from a trial court decision granting summary judgment in favor of Defendants-Appellees, Towne Properties, Inc., Town Properties, LTD., and Park Layne Apartments (collectively “Park Layne“). In support of his appeal, Gregory contends that the trial court erred in denying his
{¶ 2} We conclude that the trial court did not err in either regard. First, Gregory failed to comply with the requirements of
I. Facts and Course of Proceedings
{¶ 3} The following undisputed facts are revealed in the materials submitted in connection with Park Layne‘s motion for summary judgment. Between February 2008 and June 1, 2013, Steven Gregory was employed as a newspaper deliveryman. During that time, he delivered newspapers to residents of Park Layne seven days a week. Gregory had a key to the apartment building. As soon as Gregory arrived each day, he placed a newspaper on the doorman‘s desk. He then took the elevator to the 11th floor and began delivering newspapers. Gregory then worked his way down to the first floor.
{¶ 4} On June 1, 2013, Gregory followed his usual routine, beginning with deliveries on the 11th floor. He took the elevator from the third to the second floor, and
{¶ 5} As Gregory descended the stairway, his hand was on the handrail. When he was about half-way down, or about 8 to 9 feet from the bottom, he placed his foot on a step and it collapsed. Gregory fell backwards, hit his head, and landed on his back. After falling, Gregory stayed there for about seven minutes because he was hurt and was not able to get up. Eventually, he got up and went to the front desk, where he showed his hand, which was bleeding, to the maintenance man, Greg, and the doorman, James Williams. Gregory told the men what had happened, and they were shocked. They could not believe that the stairs had caved in.
{¶ 6} Park Layne‘s maintenance people roped off the stairway while Gregory was still there. Gregory then left, and went to the hospital for treatment the following day. When Gregory returned to Park Layne a few days later to deliver newspapers, the staircase was still roped off. Park Layne had put up cones and a sign indicating that the stairway was closed.
{¶ 7} The manager of Park Layne, Jackie Murray, indicated that maintenance personnel regularly perform visual inspections of all the staircases, including the internal staircase between the first and second floors of the building. Murray further stated that if any problem or damage is identified during inspections, maintenance staff would fill out a report. To Murray‘s knowledge, no reports had ever been made relating to structural
{¶ 8} As soon as the accident was reported, Park Layne secured the staircase, put up barriers to prevent others from using the staircase, and placed signs telling others not to use the staircase. Park Layne also arranged for the broken step to be repaired as soon as possible.
{¶ 9} In December 2013, Gregory filed suit against Park Layne, alleging that its negligence had caused him injury when he was on the premises on June 1, 2013, as a business invitee. The trial court set deadlines for completion of discovery, summary judgment motions and responses, and trial. After conducting discovery, Park Layne filed a motion for summary judgment on August 6, 2014, which was the deadline for filing such motions. On August 25, 2014, Gregory filed a
{¶ 10} The trial court overruled Gregory‘s motion on August 25, 2014, based on Gregory‘s failure to comply with
{¶ 11} Gregory‘s First Assignment of Error states that:
The Trial Court Erred in Denying Appellant/Plaintiff‘s Motion Pursuant to Rule 56(F).
{¶ 12} Under this assignment of error, Gregory contends that the trial court‘s denial of his
{¶ 13}
Should it appear from the affidavits of a party opposing the motion for summary judgment that the party cannot for sufficient reasons stated present by affidavit facts essential to justify the party‘s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just.
{¶ 14} “The trial court‘s determination of a
{¶ 15} In Doriott v. MVHE, Inc., 2d Dist. Montgomery No. 20040, 2004-Ohio-867, we stated that:
Pursuant to
Civ.R. 7(A) , the grounds for aCiv.R. 56(F) motion for a continuance must be stated with particularity. In addition,Civ.R. 56(F) requires the motion to be supported by an affidavit containing “sufficient reasons why (the nonmoving party) cannot present by affidavit facts sufficient to justify its opposition” to the summary judgment motion. Id. “Mere allegations requesting a continuance or deferral of action for the purpose of discovery are not sufficient reasons why a party cannot present affidavits in opposition to the motion for summary judgment.” Gates Mills Inv. Co. v. Pepper Pike (1978), 59 Ohio App.2d 155, 169, 392 N.E.2d 1316. “There must be a factual basis stated and reasons given within an affidavit why a party cannot present facts essential to its opposition to the motion.” Baldwin‘s Ohio Practice, Klein/Darling, Civil Practice, Vol. 2, Section At 56-14, at p. 564.A party who seeks a continuance for further discovery is not required to specify what facts he hopes to discover, especially where the facts are in the control of the party moving for summary judgment. See, e.g. Booth v. Security Mutual Life Insurance Co. (1957), 155 F.Supp. 755. However, the court must be convinced that there is a likelihood of discovering some such
facts. Further, a claim that the party has not completed discovery is more likely to be rejected by the court where the party has not shown some diligence in attempting discovery. See Southern Rambler Sales, Inc. v. American Motors Corp. (1967), 375 F.2d 932.
Doriott at ¶ 40-41.
{¶ 16} As an initial matter, Gregory failed to comply with
{¶ 17} According to the
{¶ 18} Furthermore, the record, again, fails to reveal any effort on Gregory‘s part to
{¶ 19} Accordingly, the First Assignment of Error is overruled.
III. Grant of Summary Judgment
{¶ 20} Gregory‘s Second Assignment of Error states that:
The Trial Court Erred By Granting Summary Judgment in Favor of Defendant.
{¶ 21} Under this assignment of error, Gregory contends that the trial court erred in granting summary judgment in Park Layne‘s favor, based on the applicability of the doctrine of res ipsa loquitur. According to Gregory, Park Layne had exclusive management and control of the building, including the stairwell, and the accident would not have happened if ordinary care had been used.
{¶ 22} With respect to summary judgment, “[a] trial court may grant a moving party summary judgment pursuant to
{¶ 23} Gregory sued Park Layne on grounds of negligence, asserting that Park Layne breached its duty of care to him as a business invitee. “In order to establish actionable negligence, a plaintiff must demonstrate the existence of a duty, a breach of the duty, and an injury proximately resulting therefrom.” Turk v. NovaCare Rehab. of Ohio, 8th Dist. Cuyahoga No. 94635, 2010-Ohio-6477, ¶ 16, citing Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 680, 693 N.E.2d 271 (1998).
{¶ 24} An occupier or owner of premises “owes business invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition so that its customers are not unnecessarily and unreasonably exposed to danger.” (Citation omitted.) Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 480 N.E.2d 474 (1985). This duty includes the owner‘s obligation “to exercise reasonable care to warn patrons of known hazards.” Anderson v. Elifritz, Inc., 2d Dist. Montgomery No. 12575, 1991 WL 227616, *1 (July 9, 1991). An occupier or owner “is not, however, an insurer of the customer‘s safety.” Paschal at 203. Accord Blair v. Vandalia United Methodist Church, 2d Dist. Montgomery No. 24082, 2011-Ohio-873, ¶ 15.
{¶ 25} “Where negligence revolves around the question of the existence of a hazard or defect, the legal principle prevails that notice, either actual or constructive, of such hazard or defect is a prerequisite to the duty of reasonable care.” Allen v. Memering, 2d Dist. Greene No. 06-CA-16, 2007-Ohio-1506, ¶ 8, citing Heckert v. Patrick, 15 Ohio St.3d 402, 473 N.E.2d 1204 (1984). “Constructive notice can be proven by direct or circumstantial evidence. * * * Circumstantial evidence is the proof of certain facts and circumstances from which one may infer other facts which, according to common
{¶ 26} In the case before us, the undisputed facts indicate that Park Layne did not have either actual or constructive notice of a defect in the stairs. Instead, the undisputed evidence indicates that Park Layne performed regular inspections of the stairs, and had no prior knowledge of a defect. In addition, no guest, tenant, or employee, had reported problems with the stairs before Gregory‘s accident, nor had anyone previously had an accident on the stairs. Under the circumstances, we fail to see what more Park Layne could have done to protect invitees.
{¶ 27} Gregory argues that under the doctrine of res ipsa loquitur, the accident would not have happened in the absence of negligence. The trial court rejected this theory.
{¶ 28} “Res ipsa loquitur is a rule of evidence which permits, but does not require, the jury to draw an inference of negligence in a case where the instrumentality causing injury is shown to have been within the exclusive control and management of the defendant, and where the circumstances attending the injury were of such a character in themselves as to warrant the conclusion that a lack of ordinary care on the part of the defendant was responsible for the occurrence or condition causing the injury.” Renneckar v. Canton Terminal Restaurant, 148 Ohio St. 119, 73 N.E.2d 498 (1947), paragraph one of the syllabus.
{¶ 29} “[T]he rule of res ipsa loquitur is not a substantive rule of law, or one of liability, but is a rule of evidence which permits the trier of facts to infer negligence after
{¶ 30} Moore involved a situation similar to the present, in which the plaintiff was injured when the staircase in a house in which he was working collapsed. Id. at 125. The Supreme Court of Ohio concluded that res ipsa loquitur did not apply in an action brought against the owner. In this regard, the court observed that
In the instant case, as in the storekeeper cases * * * many persons had access to the premises and used the stairs. To apply the rule of res ipsa loquitur under such circumstances would violate the principle that defendant is not an insurer. Defendant was not required to be a contractor, inspector and watchman at any and all times.
(Citations omitted.) Moore at 128. Accord Cramer v. Wi I Hsu, M.D., Co., 11th Dist. Trumbull No. 92-T-4648, 1992 WL 366896, *3 (Dec. 11, 1992) (“exclusive control cannot be found if the instrumentality is used by the public.“); Brown v. Univ. Hosp. of Cleveland, 8th Dist. Cuyahoga No. 57101, 1990 WL 75203, *3 (June 7, 1990) (in case involving collapsing chair, court noted that “[w]here, as here, the defendants’ chair unit is located in a public area with many people using it, there is no exclusive control and management and the doctrine of res ipsa loquitur is inapplicable.“); and Turk, 8th Dist. Cuyahoga No. 94635, 2010-Ohio-6477, ¶ 45 (refusing to apply res ipsa loquitur in case where lockers fell on plaintiff. The court noted that the lockers were being used by others besides the
{¶ 31} Based on the preceding discussion, we conclude that the trial court did not err in rejecting the application of res ipsa loquitur. As was noted below, many people used the stairway, and there is no inference that the accident could not have happened in the absence of ordinary care on the part of Park Layne. There are many reasons why a step could have failed, including misuse by the public, or defects in the original construction, for which Park Layne would not have been responsible. Accordingly, the Second Assignment of Error is overruled.
IV. Conclusion
{¶ 32} All of Gregory‘s assignments of error having been overruled, the judgment of the trial court is affirmed.
FAIN, J. and DONOVAN, J., concur.
Copies mailed to:
Sean Brinkman
Aaron G. Durden
Robert W. Hojnoski
Ian Mitchell
Hon. Mary Katherine Huffman