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Clova Novik v. the Kroger Company

November 7, 2011


Appeal from Marion County Common Pleas Court Trial Court No. 2009 CV 0818

The opinion of the court was delivered by: Shaw, J.

Cite as Novik v. Kroger Co.,


Judgment Affirmed

{¶1} Plaintiff-appellant, Clova Novik ("Novik"), appeals the May 16, 2011 judgment of the Common Pleas Court of Marion County, Ohio, granting summary judgment in favor of the defendant-appellee, The Kroger Company ("Kroger"), and dismissing her complaint.

{¶2} The facts relevant to this appeal are as follows. On September 7, 2007, as Novik was entering one of Kroger's store locations on Marion-Waldo Road in Marion, Ohio, she fell to the floor and injured her left wrist, left ankle, and left foot. The area of her fall was a vestibule, which was accessed from the outside by two different sets of doors. Once inside the vestibule, one had to enter through another set of doors in order to access the sales floor. At the threshold of the outside entrance doors, were four, square heavy-duty rubber mats, approximately ¾" thick, that were each set in a metal frame and abutted one another to form one larger square. At the time of her injury, the outside entrance doors were set in an open position rather than continuously opening and closing upon approach.

{¶3} When Novik fell, a couple of customers came to her aid. Shortly thereafter, the store manager, Lynne Spencer ("Spencer"), was called to the vestibule area and waited with Novik until an ambulance arrived. While lying on the floor, Novik attempted to ascertain how she fell and noticed the mats that she walked across upon entering the first set of doors were "humped up" on their edges, particularly on the corners where the four mats came together. At that point, she realized that she had tripped over one of these "humped up" edges.

{¶4} Novik was transported to a local hospital by ambulance, x-rays were taken of her wrist and foot that revealed nothing was broken, and she was diagnosed with a sprained wrist and ankle. However, she continued to experience pain in her foot and was not able to walk. After seeing her family physician and a podiatrist, she was referred to an orthopedic surgeon, who ordered an MRI of her foot. The surgeon discovered Novik had broken a number of small bones in her foot and torn tendons and ligaments in her ankle. She underwent surgery on her ankle and foot, and a metal plate was placed inside her foot with screws. She later underwent another surgery to remove two of the screws in the metal plate that were causing pain. She then had yet another surgery to remove the metal plate and to place a new one.

{¶5} On September 2, 2009, Novik filed a complaint against Kroger for negligence. Kroger filed its answer, and the matter proceeded to discovery. During discovery, Novik served Kroger with interrogatories, a request for admissions, and a request for the production of documents. Among the items requested by Novik were any and all written reports or other documents relating to the area, flooring, or condition of the flooring where Novik was injured. Kroger promptly provided its responses, including that this particular request was overbroad and sought information that violated attorney-client privilege and/or the work-product rule. In addition, Kroger's response specifically stated that no incident report had been prepared as a result of Novik's fall.

{¶6} On March 23, 2010, Kroger filed a motion for summary judgment in its favor. In this motion, Kroger maintained that any hazards created by the rubber mats were open and obvious, that any defect in the condition of these mats was insubstantial and trivial so as to create no duty on the part of Kroger to Novik, and that there was no evidence that Kroger had actual or constructive notice of any such hazard.

{¶7} On April 6, 2010, Spencer, the Kroger store manager at the time of the incident, was deposed by counsel for Novik.*fn1 In this deposition, Spencer testified that she or one of the assistant managers prepared an incident report of Novik's fall, which was contrary to Kroger's previous response to Novik's request for production of documents and interrogatories.*fn2 After this deposition, Kroger supplemented its response to exclude its previous answer that no incident report was prepared.

{¶8} On April 14, 2010, Novik filed a motion to compel Kroger to provide the incident report that was created by Spencer. Novik also filed a motion for an extension of time to respond to Kroger's motion for summary judgment. Shortly thereafter, the trial court granted Novik's request for an extension. However, Kroger filed a memorandum in opposition to Novik's motion to compel, asserting that it did not locate any incident report of Novik's fall and that even if it could be located, it was protected by attorney-client privilege and the work-product rule. Kroger filed a supplement to this memorandum on April 23, 2010, and attached the affidavit of Erin Driskell, Kroger's lead paralegal, who averred that she exhausted all reasonable methods to locate the incident report at issue and that she was unable to find any such incident report.

{¶9} Novik filed her memorandum in opposition to Kroger's motion for summary judgment on September 13, 2010. Kroger filed its reply to Novik's memorandum in opposition on September 27, 2010. On May 16, 2011, the trial court granted summary judgment in favor of Kroger, found all other pending motions moot as a result, and dismissed Novik's complaint. This appeal followed, and Novik now asserts three assignments of error for our review.



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