Courtney Kiser v. United Dairy Farmers
No. 22AP-539
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
June 27, 2023
[Cite as Kiser v. United Dairy Farmers, 2023-Ohio-2136.]
EDELSTEIN, J.
(C.P.C. No. 21CV-0753), (ACCELERATED CALENDAR)
Rendered on June 27, 2023
On brief: Cox Law Office, LLP, and Michael T. Cox for appellant. Argued: Michael T. Cox.
On brief: Frost Brown Todd, LLC, Caitlyn E. Vetter, Ryan W. Goellner, and Kaitlyn Hawkins-Yokley for appellee. Argued: Ryan W. Goellner.
APPEAL from the Franklin County Court of Common Pleas
EDELSTEIN, J.
{¶ 1} Plaintiff-appellant, Courtney Kiser, appeals a final judgment of the Franklin County Court of Common Pleas granting summary judgment in favor of defendant-appellee, United Dairy Farmers (“UDF“), on August 10, 2022. For the following reasons, we reverse and remand.
I. Facts and Procedural History
{¶ 2} On February 25, 2019,1 at around 7:53 A.M, Courtney Kiser pulled into a parking space at a UDF in Grove City, Ohio, to pick up donuts and chocolate milk for her
{¶ 3} Ms. Kiser filed a complaint against UDF on February 5, 2021, alleging a single claim of negligence. UDF moved for summary judgment, asserting that because Ms. Kiser slipped on a puddle caused by a beverage that was spilled just minutes before her arrival, no evidence in the record supported a conclusion that UDF had actual or constructive notice of a hazard in their parking lot. Exhibits attached in support of the motion included Ms. Kiser‘s December 6, 2021 deposition, Ms. Ratkowski‘s March 14, 2022 deposition, and surveillance video footage of the store from February 25, 2019 between roughly 7:00 A.M. and 8:00 A.M. In her response to UDF‘s summary judgment motion, Ms. Kiser asserted that the cause of her fall—either ice from an earlier spill or the beverages spilled on the video—remained a genuine issue of material fact despite the conclusion reached by UDF. Thus, she claimed, without knowing definitively what caused her to fall, it was impossible to determine whether UDF should have known about the hazard. Ms. Kiser also argued
{¶ 4} The trial court entered summary judgment in favor of UDF on August 10, 2022. In its decision, the trial court found that the uncontroverted evidence established a UDF customer dumped beverages in the parking space where Ms. Kiser fell, no other parties passed the parking space before Ms. Kiser arrived a few minutes later, Ms. Kiser slipped while exiting her vehicle, and “[w]hen she looked to see what she slipped on, she noticed ice that was caused by a spilled beverage.” (Aug. 10, 2022 Entry Granting Summ. Jgmt. at 4.) Next, the trial court found UDF did not have constructive notice of the hazard because the cause of her fall was the beverage spilled minutes before, so “the hazard did not exist long enough to justify an inference of notice.” Id. at 7. The court further concluded UDF lacked actual notice because no UDF employee walked past the area where the beverage was spilled before Ms. Kiser fell and because Ms. Ratkowski testified during her deposition that she did not learn about the hazard until Ms. Kiser entered the store following her fall in the parking lot. Id.
{¶ 5} Having found that UDF met its initial burden under
{¶ 6} Because the trial court relied on Ervin and Ms. Kiser was only able to produce her own deposition testimony to support her claim that a UDF employee was aware of the ice prior to her fall, the court concluded Ms. Kiser failed to meet her reciprocal burden to identify a genuine dispute of material fact and thus UDF was entitled to judgment as a matter of law. Having discounted Ms. Kiser‘s deposition testimony as self-serving and
{¶ 7} This appeal timely followed.
II. Assignments of Error
{¶ 8} Ms. Kiser presents the following assignments of error for our review:
[I.] The trial court errored in determining that United Dairy Farmer‘s [sic] did not have notice of the hazard and therby [sic] had a duty to warn or remedy.
[II.] The trial court errored in determining that plaintiff had not demonstrated material issues of fact regarding the source of the hazard.
[III.] The trial court errored in disregarding defendant‘s admission of knowledge of the hazard.
III. Discussion
A. Standard of Review and Relevant Law
{¶ 9} We review a decision granting summary judgment de novo. Under the de novo standard of review, an appellate court undertakes an independent review of the evidence without deference to the trial court‘s decision. Nazareth Deli LLC v. John W. Dawson Ins. Inc., 10th Dist. No. 21AP-394, 2022-Ohio-3994, ¶ 22. Summary judgment shall be rendered if “there is no genuine issue as to any material fact and * * * the moving party is entitled to judgment as a matter of law.”
{¶ 10} “In order to prevail on a claim of negligence, a plaintiff must demonstrate a breach of duty, and an injury resulting therefrom.” Liggins v. Giant Eagle McCutcheon & Stelzer, 10th Dist. No. 17AP-383, 2019-Ohio-1250, ¶ 13. Ms. Kiser‘s negligence claim is based on premises liability, so she asserted below that UDF breached its duty to maintain its premises in a safe condition because it had notice of a hazardous condition in the parking
{¶ 11} Because we find it dispositive to resolving this appeal, we begin our analysis with Ms. Kiser‘s third assignment of error, which asserts the trial court erred by disregarding her deposition testimony concerning Ms. Ratkowski‘s admission.
B. Ms. Kiser‘s Third Assignment of Error
{¶ 12} In its decision granting summary judgment, the trial court relied exclusively on Ervin, 2008-Ohio-393, to conclude that uncorroborated, “self-serving” testimony could not, as a matter of law, create an issue of fact to defeat summary judgment. (Aug. 10, 2022 Entry Granting Summ. Jgmt. at 8-9.) On appeal, Ms. Kiser argues that a nonmoving party‘s deposition testimony is a proper basis to determine that a genuine issue remains for trial and the trial court erred in relying on Ervin to hold otherwise. (Appellant‘s Brief at 16-17.) We agree.
{¶ 13} ”
{¶ 14} Evidence permitted by
{¶ 15} “Because summary judgment is a procedural device to terminate litigation, it must be awarded with caution. Doubts must be resolved in favor of the nonmoving party.” Davis v. Loopco Industries, Inc., 66 Ohio St. 3d 64, 66 (1993). As such, when considering a summary judgment motion, a trial court views the evidence “most strongly in favor of the nonmoving party” and refrains from making credibility determinations or weighing the evidence. Hood v. Diamond Prods., 74 Ohio St. 3d 298, 303-04 (1996), citing Davis at 66.
{¶ 16} Importantly, “determining whether issues of disputed fact exist is different from making findings of facts.” Smathers v. Glass, ___ Ohio St. 3d ___, 2022-Ohio-4595, ¶ 32. At summary judgment, it is not the role of the court to resolve a disputed fact or weigh the credibility of the evidence, only to determine whether there exists a genuine dispute of material fact. See, e.g., Turner v. Turner, 67 Ohio St. 3d 337, 341 (1993) (“Credibility issues typically arise in summary judgment proceedings when one litigant‘s statement conflicts with another litigant‘s statement over a fact to be proved. Since resolution of the factual dispute will depend, at least in part, upon the credibility of the parties or their witnesses, summary judgment in such a case is inappropriate.“). The trial court is limited to determining whether admissible evidence of the type contemplated by
{¶ 17} As a threshold matter, it is undisputed that Ms. Kiser‘s deposition satisfies
{¶ 18} However, because the trial court believed a nonmovant‘s deposition testimony could not, alone, create a genuine dispute of material fact as a matter of law under Ervin, the evidence was disregarded in the trial court‘s summary judgment analysis. The trial court‘s reliance on this interpretation of Ervin is not surprising. Since that case was decided, this court‘s case law concerning so-called “self-serving” attestations of a nonmoving party has gone in two very different directions. And that divergence is captured in the lower court proceedings.
{¶ 19} In its motion for summary judgment, UDF unequivocally declared that “[t]he Tenth District has made it clear * * * that Plaintiff cannot rely upon her own ‘unsupported and self-serving assertions’ whether ‘made in affidavits, depositions, and interrogatory responses[.]” (Bracketing sic.) (Emphasis added.) (June 2, 2022 Def. Mot. for Summ. Jgmt. at 5, quoting White v. Sears, 10th Dist. No. 10AP-294, 2011-Ohio-204, ¶ 7-8.) The trial court agreed, consistent with the line of cases stemming from White, which held “a non-movant‘s own self-serving assertions, whether made in an affidavit, deposition or interrogatory responses, cannot defeat a well-supported summary judgment when not corroborated by any outside evidence.” White at ¶ 9. See also Pankey v. Ohio State Hwy. Patrol, 10th Dist. No. 20AP-234, 2021-Ohio-1317, ¶ 9 (“Additionally, a nonmovant‘s own self-serving assertions, whether made in an affidavit, deposition or interrogatory responses, cannot defeat a well-supported summary judgment when not corroborated by any outside
{¶ 20} It appears our court has been inconsistent in its treatment of “self-serving” statements of nonmoving parties at summary judgment, and that has resulted in the exclusion of admissible evidence appropriate for consideration at this stage of proceedings. On the one hand, we have applied White as though it expressly prohibits a trial court from considering these “self-serving” attestations. On the other hand, we have generated a line of decisions that appropriately treats this evidence like any other material permitted under
{¶ 21} This second line of cases stands for the proposition that the uncorroborated personal testimony of a nonmoving party, which otherwise satisfies
{¶ 22} In fact, we have previously noted that “there may be aspects to the facts of any given case upon which the nonmoving party may be uniquely qualified to offer testimony.” (Emphasis added.) Bell v. Beightler, 10th Dist. No. 02AP-569, 2003-Ohio-88, ¶ 34. The Supreme Court of Ohio has also recognized that a nonmoving party may be in the best position to offer testimony in support of her cause. See Hood, 74 Ohio St. 3d 298.
C. Revisiting Our Court‘s Past Precedent on “Self-Serving” Testimony
{¶ 23} We reiterate our concern that White has been used in decisions of this court to say a nonmovant‘s own uncorroborated, self-serving assertions, whether made in an affidavit, deposition, or interrogatory responses, cannot defeat a well-supported summary judgment motion. See, e.g., Pankey, 2021-Ohio-1317; Kean, 2021-Ohio-490. This principle imposes several requirements beyond those contained in
{¶ 24} Accordingly, we take this opportunity to reaffirm that “self-serving” testimonial evidence that conforms to the requirements of
D. Application to the Present Case
{¶ 25} Because of its mistaken reliance on White, the trial court failed to consider Ms. Kiser‘s deposition testimony concerning her conversation with Ms. Ratkowski and the circumstances of her fall. According to Ms. Kiser, Ms. Ratkowski, who was at the cash register when Ms. Kiser entered the store, exclaimed, “[O]h, you slipped on ice, I meant to go put salt on it and I forgot, crap, thanks lady.” (Kiser Dep. at 22.) Generally, “[a] statement by someone other than the declarant, offered to prove the truth of the matter asserted is hearsay.” Cordle v. Bravo Dev., Inc., 10th Dist. No. 06AP-256, 2006-Ohio-5693, ¶ 13, citing
{¶ 26} Our decision in Cordle is illustrative. In Cordle, the plaintiff filed a negligence action after slipping on the floor at a restaurant. In response to the restaurant‘s summary judgment motion, the plaintiff submitted the affidavit of another restaurant patron, who recounted overhearing an employee admit seeing a spill on the floor near the area where the plaintiff fell. Id. at ¶ 16. The trial court struck the affidavit as hearsay and, finding no admissible evidence to prove negligence, entered summary judgment for the restaurant. Id. at ¶ 14. This court reversed, finding that an employee‘s factual assertions within their scope of knowledge and made against the interest of their employer are admissible under
{¶ 27} With the exception of who overheard the party opponent‘s admission, Ms. Kiser‘s case is quite similar to Cordle. Just as the restaurant employee‘s admission was admissible under
{¶ 28} Although Ms. Kiser‘s recollection of her conversation with Ms. Ratkowski is not directly corroborated by other evidence in the record, neither is it directly contradicted. Ms. Ratkowski acknowledged having this conversation in her own deposition and the video evidence in the record clearly shows Ms. Kiser and Ms. Ratkowski exchanged words at the cash register. The only evidence that directly contradicts Ms. Kiser‘s testimony regarding her conversation with Ms. Ratkowski is Ms. Ratkowski‘s own conflicting testimony. Similarly, the trial court disregarded Ms. Kiser‘s statement that she slipped on a patch of ice and only considered the video footage showing another UDF patron spilling a beverage in the parking lot when determining whether a genuine dispute of material fact existed as to the cause of her fall.
{¶ 29} Because the trial court failed to even consider whether Ms. Kiser‘s deposition testimony created a genuine dispute of material fact on any of the elements of her negligence claim, the trial court‘s grant of summary judgment was in error. We therefore sustain Ms. Kiser‘s third assignment of error.
E. Ms. Kiser‘s First and Second Assignments of Error
{¶ 30} Ms. Kiser asserts in her first assignment of error that the trial court erred in determining UDF did not have actual or constructive notice of the hazard and therefore was not negligent. In her second assignment of error, she argues the trial court erred in finding there was no genuine dispute of material fact as to the source of the parking lot hazard. Both the first and second assignments of error pertain to the trial court‘s consideration of Ms. Kiser‘s deposition testimony. Having already concluded that the trial court erred by disregarding her deposition testimony and not performing the requisite analysis on summary judgment, we find these issues moot.
IV. Disposition
DORRIAN and LUPER SCHUSTER, JJ., concur.
Judgment reversed;
cause remanded.