Case Information
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[Cite as
Ludwigsen v. Lakeside Plaza, L.L.C.
,
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO MADISON COUNTY
DENISE L. LUDWIGSEN, :
CASE NO. CA2014-03-008 Plaintiff-Appellant, :
O P I N I O N - vs - : 12/15/2014 LAKESIDE PLAZA, LLC, et al., :
Defendants-Appellees/ :
Third-Party Plaintiffs,
:
- vs -
:
DONALD L. WEST, M.D., et al.,
:
Third-Party Defendants.
:
CIVIL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS Case No. CVC 20120150
Shade Law Group, LLC, Jerry H. Shade and The Sharma Law Firm, Ravi Sharma, 5181 Natorp Drive, Suite 110, Mason, Ohio 45040, for plaintiff-appellant Gallagher, Gams, Pryor, Tallan & Littrell, M. Jason Founds, 471 East Broad Street, 19th Floor, Columbus, Ohio 43215, for defendants-appellees/third-party plaintiffs
M. POWELL, J. Plaintiff-appellant, Denise L. Ludwigsen, appeals the decision of the Madison County Court of Common Pleas grаnting summary judgment to defendants-appellees, Lakeside Plaza, LLC ("Lakeside") and Campbell Group, LLC ("CGL") in a negligence action.
{¶ 2} On December 23, 2009, Ludwigsen spent the afternoon helping a friend move to a new residence, and admits to taking narcotic pain medication and drinking two to three beers during that time. At around 9:00 p.m. that evening, Ludwigsen and her friend stopped at a gas station in London, Ohio. The gas station and adjacent convenience store were operated by Lakeside on property owned by CGL.
{¶ 3} After purchasing a personal-size pizza and a can of beer, Ludwigsen and her friend exited the convenience store and walked across the parking lot toward the friend's vehicle. Approximately three to four feеt from the passenger-side door of the vehicle, the heel of Ludwigsen's left boot became caught in a hole in the surface of the parking lot. Her ankle immediately twisted and she fell to the ground, sustaining significant injuries to her right elbow and right shoulder. Over the course of the following few months, Ludwigsen required surgery to repair both her elbow and shoulder. On December 19, 2011, Ludwigsen filed a negligence action based on
premises liability against Lakeside and "John and/or Jane Doe, Owner or Maintenance [sic] of the Property." This complaint was served by certified mail. On December 3, 2012, Ludwigsen filed an amended complaint naming CGL as a defendant in place of "John and/or Jane Doe." The amended complaint was also served by certified mail. In October 2013, Lakeside and CGL filed separate motions for summary
judgment. Ludwigsen responded in early January 2014. In an entry dated February 11, 2014, the trial court granted summary judgment to Lakeside and CGL on the ground that the hole that caused Ludwigsen's fall was open and obvious. Ludwigsen now appeals, raising one assignment of error: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BY ITS
DETERMINATION THAT THE HAZARD WAS OPEN AND OBVIOUS AS A MATTER OF LAW. This court reviews summary judgment decisions de novo, which means that we
review the trial сourt's judgment independently and without deference to its determinations,
and use the same standard in our review that the trial court should have employed. Forste v.
Oakview Constr., Inc. , 12th Dist. Warren No. CA2009-05-054,
must address two issues raised below by Lakeside and CGL but not ruled upon by the trial court: (1) the statute of limitations on the claim against CGL, and (2) the photographs of the hole Ludwigsen triрped in, submitted with her summary judgment response.
1. The Statute of Limitations on Ludwigsen's Claim Against CGL With respect to Ludwigsen's claim against CGL, CGL argued below that it was entitled to summary judgment because the statute of limitations had expired on Ludwigsen's claim by the time she filed and served CGL with a complaint naming it as a defendant. CGL observes that Ludwigsen had from December 23, 2009, to December 23, 2011, to file her action аgainst it, yet she failed to properly serve CGL pursuant to Civ.R. 15(D) with the original complaint and did not name CGL as a defendant until December 2012. In response, Ludwigsen argues that Civ.R. 15(C) allows a properly amended complaint to relate back to the original complaint when a fictitious name has been used to identify a defendant. She contends that her claim against CGL was timely bеcause she named "John and/or Jane Doe" as a "placeholder" until she could learn the identity of the owner of the property upon which Lakeside's gas station and convenience store operated. She claims that she substituted CGL as soon as she learned its identity. The trial court did not rule on these arguments. However, on appeal from a trial
сourt's decision granting summary judgment, this court is required to conduct an independent
review of the record and "stand in the shoes" of the trial court. Touhey v. Ed's Tree & Turf,
L.L.C. ,
unless a bodily injury fits within one of a few narrowly defined exceptions, an action to
recover for the injury must be commenced within two years of the date the injury occurs.
Under Civ.R. 3(A), an action is commenced if a complaint is filed and a defendant is served
with the complaint within one year. If a defendant is unknown at the time of filing, Civ.R.
15(D) permits the plaintiff to file the complaint and later amend it when the name of the
unknown party is discovered. Anetomang v. OKI Sys. Ltd. , 10th Dist. Franklin No. 10AP-
1182,
filing a complaint with the court, if service is obtained within one year from such filing * * *
upon a defendant identified by a fictitious name whose name is later corrected pursuant to
Civ.R. 15(D)." As Civ.R. 3(A) incorporates by reference the requirements of Civ.R. 15(D), the
latter provision establishes the "threshold requirements" for the proper commencement of a
causе of action against a fictitiously-named defendant. Lawson v. Holmes, Inc. , 166 Ohio
App.3d 857,
When the plaintiff does not know the name of a defendant, that defendant may be designated in a pleading or proceeding by any name and description. When the name is discovered, the pleading or proceeding must be amended accordingly. The plaintiff, in such case, must avеr in the complaint the fact that he could not discover the name. The summons must contain the words "name unknown," and a copy thereof must be served personally upon the defendant.
(Emphasis added.) Civ.R. 15(D) allows the plaintiff to file a complaint designating a defendant by
any name when the plaintiff does not know the name of that defendant, provided the plaintiff
avers in the complaint that the name could not be discovered, includes in the summons the
words "name unknown," and personally serves the summons on the defendant. Erwin v.
Bryan , 125 Ohio St.3d 519,
plaintiff to escape statutory time limitations for filing claims, nor does it relieve a plaintiff of his
duty to timely learn the identity of culpable parties. Mardis v. Meadow Wood Nursing Home ,
12th Dist. Brown No. CA2010-04-007,
provisions of Civ.R. 15(C) are considered. Amerine at 58; LaNeve v. Atlas Recycling, Inc. ,
Ludwigsen employed an improper method of service. Civ.R. 15(D) specifies that personal service is the only method by which a fictitiously-named defendant may be served. Yet Ludwigsen obtained service by certified mail of both the original complaint and the amended complaint naming CGL. See LaNeve at ¶ 17. Furthermore, Ludwigsen failed to meet the specific requirement in Civ.R. 15(D) that the summons contain the words "name unknown." See Amerine at 58. Based on Ludwigsen's failure to comply with the requirements of Civ.R. 15(D),
we find that she failed to meet the threshold requirements for the proper commencement of
an action against a fictitiously-named defendant. Lawson ,
statute of limitations on Ludwigsen's claim.
2. The Photographs Submitted with Ludwigsen's Response Included with Ludwigsen's response to the motions for summary judgment were
a series of photographs of what appeared to be the hole that caused her fall. Because these
photographs wеre not introduced as exhibits to an affidavit or otherwise authenticated, both
Lakeside and CGL argued below that the photographs were improper summary judgment
evidence. Nevertheless, the trial court relied upon the photographs in rendering its judgment.
Civ.R. 56(C) provides an exclusive list of materials that a trial court may
consider when deciding a motion for summary judgment, including "рleadings, depositions,
answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written
stipulations of fact." Wells Fargo v. Smith , 12th Dist. Brown No. CA2012-04-006, 2013-Ohio-
855, ¶ 15, citing Civ.R. 56(C). Any evidentiary matter not specifically authorized by Civ.R.
56(C) must be incorporated by reference in a properly framed affidavit pursuant to Civ.R.
56(E). State ex rel. Anderson v. Obetz , 10th Dist. Franklin No. 06AP-1030,
authorized by Civ.R. 56(C), and were not incorporated by reference in a properly framed affidavit pursuant to Civ.R. 56(E). Therefore, we decline to consider the photographs as summary judgment evidence. [1]
3. Minor Defect We now address the nature of the hazard that Ludwigsen encountered. Both
below and on appeal, Ludwigsen argued that summary judgment was inappropriate because a genuine issue of fact exists as to the size of the hole that caused her fall. She contends that this is a fact for a jury to resolve, not the court. To sustain an actionable claim for negligence, a plaintiff must establish (1) the
existence of a duty, (2) a breach of that duty, and (3) an injury proximately resulting
therefrom. Moody ,
her fall. Generally, a premises owner or occupier owes a business invitee a duty to exercise
ordinary care to maintain the premises in a reasonably safe condition, so that an invitee will
not be unreasonably or unnecessarily exposed to danger. Forste ,
However, thе premises owner or occupier is not the insurer of the invitee's safety. Id. , citing
Paschal v. Rite Aid Pharmacy, Inc. ,
parking lot." Sack v. Skyline Chili, Inc. , 12th Dist. Warren No. CA2002-09-101, 2003-Ohio- 2226, ¶ 16. Parking lots often develop depressions from freezing and thawing, and may also contain drainage areas and sewer lids. Id. Therefore, a defect in a parking lot may be determined to be a "trivial departure from perfection" – a minor defect – if it is less than two inches in height, unless attendant circumstances are shown to elevate the defect to an unreasonably dangerous condition. Forste at ¶ 15, citing Cash v. Cincinnati , 66 Ohio St.2d 319 (1981). As stated earlier, we decline to consider the photographs that Ludwigsen
submitted with her response. Thus, for purposes of our review, we take Ludwigsen's deposition as the primary source of evidence. Ludwigsen testified that her husband returned to the gas station parking lot a
few days after her fall and took pictures of the hole in controversy. When asked to describe the hole as shown in her husband's pictures, Ludwigsen referred not only to the photographs, but also to her recollection of the fall:
[ATTORNEY]: What do [the photographs] show?
[LUDWIGSEN]: A hole about two inches, I guess.
[ATTORNEY]: Two inches deep?
[LUDWIGSEN]: Wide оr across or whatever. * * * I don't know. [ATTORNEY]: You're claiming that you, what, stepped into a hole?
[LUDWIGSEN]: Yeah. About the size of my boot heel is exactly what I stepped into. My boot heel fit into it.
* * *
[ATTORNEY]: How high was the heel?
[LUDWIGSEN]: About an inch * * *. It's a horse riding boot.
* * *
[ATTORNEY]: And was [the hole] basically as big as your boot heel?
[LUDWIGSEN]: Yes.
[ATTORNEY]: So it wasn't like a big gaping hole that you stepped into and your whole foot went in there, it was just that your heel got caught?
[LUDWIGSEN]: Yeah.
In short, Ludwigsen testified that the hole in the parking lot was two inches wide
or deep, or alternatively that it was the size of her boot heel – approximately 1 inch high and
wide. Employing the applicable standard of review for summary judgment, and construing
the evidence most favorably for Ludwigsen, we conclude that the hole that caused her fall
was a minor defect. Forste ,
for minor defects, courts must also consider any attendant circumstances. McQueen , 2012- Ohio-3539 at ¶ 12. Attendant circumstances may elevate a minor defect to an unreasonably dangerous condition to which liability attaches. Forste at ¶ 22. Attendant circumstances are distractions that contribute tо an injury by diverting
the attention of the injured party and reducing the degree of care an ordinary person would
exercise at the time. Burress v. Associated Land Grp. , 12th Dist. Clermont No. CA2008-10-
096,
hands full were attendant circumstances to her fall that created an unreasоnably dangerous condition. Upon reviewing the record before us, however, we find that Ludwigsen failed to submit any evidence to support this contention. First, Ludwigsen failed to show that the vehicular traffic in the parking lot was
unusual, or unreasonably increased the chance of harm. Instead, when asked in her deposition whether there were other vehicles in the lot, Ludwigsen responded:
[LUDWIGSEN]: There's people coming and going, I imagine. [ATTORNEY]: I'm not asking you to imagine. I want to know if you remember seeing any other vehicles at any of the other pumps?
[LUDWIGSEN]: There was a guy in a truck that helped me [after I fell]. That's all I know for sure. Similarly, Ludwigsen failed to show that the blowing snow was an uncommon or
extraordinary condition. "Snow and ice are a part of wintertime life in Ohiо and hazardous winter weather conditions and their attendant dangers are to be expected in this part of the country." Walters v. Middletown Properties Co. , 12th Dist. Butler No. CA2001-10-249, 2002- Ohio-3730, ¶ 19. At one point in her deposition, the attorney attempted to elicit a description of the snow. She responded:
[LUDWIGSEN]: It was like spinning around. Snow was just spinning and drifting across the parking lot.
[ATTORNEY]: So was it slushy?
[LUDWIGSEN]: Kind of a combination. I don't know. It wasn't real bad. * * *
Additionally, when pushed to be specific about what she was doing in the seconds immediately before her fall, she admitted, "[j]ust walking normally across the parking lot, carrying something." Lastly, we need not address Ludwigsen's assertion that walking with her hands
full – a boxed, personal-size pizza in one hand and an unopened can of beer in the other – was an attendant сircumstance. Ludwigsen's testimony indicates that her gaze was directed either forward or to the side. There is nothing to suggest that she was looking downward, or that her vision was obstructed by the pizza box. We recognize that the trial court granted summary judgment to Lakeside and
CGL on the ground that the hole that caused Ludwigsen's fall was an open and obvious
hazard. However, we review the triаl court's ruling independently and without deference to
the trial court's determination. Forste ,
HENDRICKSON, P.J., and PIPER, J., concur.