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Luba L. Gardner v. Howard Kinstlinger

November 28, 2012

LUBA L. GARDNER APPELLANT
v.
HOWARD KINSTLINGER, ET AL. APPELLEES



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2011 07 3681

The opinion of the court was delivered by: Whitmore, Presiding Judge.

Cite as Gardner v. Kinstlinger,

ss:

DECISION AND JOURNAL ENTRY

{¶1} Plaintiff-Appellant, Luba L. Gardner, appeals from the judgment of the Summit County Court of Common Pleas, granting Defendant-Appellees, Lucille and Howard Kinstlinger's ("the Kinstlingers"), motion for summary judgment. This Court affirms.

I

{¶2} The Kinstlingers own a business property on which a single building is located. The south side of the building is occupied by a post office, and the north side of the building is occupied by a bank. There are parking spaces located in the front and back of the building. The entrance driveway is located on the south side of the building and provides one-way access to the back parking lot. The exit driveway on the north side of the building provides a combined one- way exit and access to the bank's drive-thru window. Although unmarked, the exit driveway is wide enough for two lanes, allowing a line of cars to have access to the bank's drive-thru window while still allowing cars to exit the property. Cars using the drive-thru window or the exit lane must make a ninety-degree left turn from the rear of the building and slow down to the appropriate speed.

{¶3} Immediately north of the exit driveway, and to the right of the exit lanes, is a retaining wall made of railroad ties and a three to four foot drop-off to an adjacent vacant lot. On August 5, 2009, Gardner drove to the post office to mail a letter. She drove in the south side driveway and through the back parking lot. As she drove toward the north side of the building to exit the property she noticed a car waiting in line to access the drive-thru window. In an attempt to avoid hitting the car, Gardner made a wide turn causing her tires to go over the retaining wall. Gardner's car fell onto the adjacent property below and flipped over. As a result of the accident she sustained physical injuries and her car was severely damaged.

{¶4} Gardner filed a claim against the Kinstlingers, alleging that they were negligent in maintaining their property and failed to protect her, as a business invitee, from a hazardous condition. After depositions were taken, the Kinstlingers filed a motion for summary judgment, arguing that the hazard was open and obvious and therefore they had no duty to protect invitees. The court agreed and granted the Kinstlingers' motion. Gardner now appeals and raises two assignments of error for our review.

II

Assignment of Error Number One

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS BECAUSE THERE WAS CREDIBLE EVIDENCE GIVING RISE TO GENUINE ISSUES OF MATERIAL FACT PROPERLY REQUIRING SUBMISSION FOR DETERMINATION [BY] A JURY.

{¶5} In her first assignment of error, Gardner argues that the court erred in granting the Kinstlingers' motion for summary judgment. Specifically, Gardner argues that whether a hazard is "open and obvious" is a question of fact for the jury to determine under the "varying attend[ant] circumstances." Under the circumstances in this case, we disagree.

{ΒΆ6} This Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). To prevail on a motion for ...


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