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Sleeper v. Casto Management Services

Court of Appeals of Ohio, Tenth District

July 30, 2013

Brian J. Sleeper et al., Plaintiffs-Appellants,
v.
Casto Management Services et al., Defendants-Appellees.

APPEAL from the Franklin County Court of Common Pleas, C.P.C. No. 11CVC-01-727

Blue Blue, LLC, and Jason A. Blue, for appellants.

Raymond H. Decker, Jr., for appellee Casna Limited Partnership; Surdyk, Dowd & Turner Co., L.PA., Edward J. Dowd, and Joshua R. Schierloh, for appellee Caribbean Jerks, L.L.C..

DECISION

CONNOR, J.

{¶ 1} Plaintiffs-appellants, Brian J. Sleeper ("Sleeper") and Suzanne E. Sleeper (collectively "plaintiffs"), appeal from judgments of the Franklin County Court of Common Pleas granting the respective summary judgment motions of defendants-appellees, Caribbean Jerks, LLC. ("Caribbean Jerks") and Casna Limited Partnership[1] ("Casna") (collectively "defendants"). Because (1) statements made by a Caribbean Jerks' employee were inadmissible hearsay against Casna, (2) plaintiffs did not establish that Caribbean Jerks owed Sleeper a duty at the time of his fall, (3) plaintiffs failed to establish that Casna was actively negligent in permitting or creating an unnatural accumulation of ice, and (4) plaintiffs waived any claim they may have had regarding incomplete discovery, we affirm.

I. Facts & Procedural History

{¶ 2} Plaintiffs filed a complaint against defendants on January 18, 2011. Plaintiffs alleged that defendants negligently failed to keep their premises free from unnatural accumulations of ice and snow, resulting in injury to Sleeper. Mrs. Sleeper asserted a claim for loss of consortium.

{¶ 3} The events giving rise to the complaint occurred on January 21, 2009. At 6:30 p.m. on that date, Sleeper and his co-worker, Joseph Scarfo, went to Caribbean Jerks, a restaurant and bar located in a shopping center in Lewis Center, Ohio. Casna owned the shopping center, and leased one unit in the shopping center to Caribbean Jerks.

{¶ 4} When Sleeper and Scarfo arrived, "evening was setting in, it was starting to get dark, " and it was cold. (Sleeper Depo., 33.) Sleeper and Scarfo socialized for a couple of hours, drinking beer and eating nachos. At approximately 10:30 p.m., the men decided to leave and exited out the front door of the restaurant. Scarfo walked out first and Sleeper followed close behind. Sleeper explained that he walked across the sidewalk attached to the front of Caribbean Jerks, "stepped out off the curb, * * * walked straight out, approximately, five or six steps, " then slipped and fell on a patch of ice. (Sleeper Depo., 40.) Sleeper estimated the patch of ice was "about the size of a mid-size vehicle." (Sleeper Depo., 50.) Sleeper sustained injuries as a result of his fall.

{¶ 5} After Sleeper fell, Scarfo looked around the area to ascertain what had caused the patch of ice. Scarfo observed a "spouting rain gutter over top had a leak in it, " noting "it was obvious" that the leaky gutter had caused the ice patch. (Scarfo Depo., 41.) Sleeper testified that B.J. Maselli, a server and bartender at Caribbean Jerks, contacted Sleeper in the hospital shortly after the accident. Maselli told Sleeper "there was a leak in that gutter right above the exit way, * * * that there was ice all in that area." (Sleeper Depo., 63.) Sleeper stated that Maselli "may have made some comment of [the leak has] been there." (Sleeper Depo., 104.) Scarfo stated that when he spoke to Maselli two weeks after the incident, Maselli told Scarfo that "he had asked to have [the leaky gutter] fixed because it was obviously a safety hazard." (Scarfo Depo., 44.)

{¶ 6} On January 9, 2012, Casna filed a motion for summary judgment. Casna supported its motion for summary judgment with the affidavit of Beth VanderPol, Casna's property manager. Casna asserted that it had not breached any alleged duty, as the evidence demonstrated either that Sleeper fell on a natural accumulation of ice or that Casna had never received notice of the leaky gutter prior to the accident. Casna also asserted that the open-and-obvious doctrine precluded recovery. Plaintiffs filed a motion in opposition to Casna's summary judgment motion on January 23, 2012, asserting that the ice was an unnatural accumulation and that Casna had notice of the leaky gutter.

{¶ 7} On January 27, 2012, Caribbean Jerks filed its motion for summary judgment. Caribbean Jerks supported its motion for summary judgment with the affidavit of Mindi Durbin, the owner of Caribbean Jerks. Durbin incorporated the lease agreement between Casna and Caribbean Jerks into her affidavit by reference. Caribbean Jerks argued that, pursuant to the lease agreement, it did not have a duty to maintain the roof, gutters, or parking lot area, as those were all considered common areas under Casna's possession and control. Caribbean Jerks alternatively argued that the ice was a natural accumulation and an open-and-obvious hazard. On February 7, 2012, plaintiffs filed a motion in opposition to Caribbean Jerks' summary judgment motion, asserting that genuine issues of material fact existed regarding which defendant had control over the area where Sleeper fell.

{¶ 8} On April 23, 2012, the trial court issued a decision granting Casna's motion for summary judgment. The court noted that to find Casna owed Sleeper a duty of care at the time of his injury, plaintiffs had to present evidence demonstrating that Casna was actively negligent in permitting or creating an unnatural accumulation of ice and snow. VanderPol's affidavit established that Casna never received notice of a leaky gutter prior to Sleeper's accident. Plaintiffs relied on Maselli's statements to Sleeper and Scarfo to demonstrate that Casna had received notice of the leaky gutter. The court refused to consider Maselli's statements, finding they were inadmissible hearsay. The court concluded that, as there was no "evidence that Casna knew or should have known about the unnatural ice accumulation from the leaky gutter, " plaintiffs failed to establish that Casna owed plaintiffs a duty of care. (Decision Granting Casna's Motion for Summary Judgment, 5.) The court further concluded that the ice was an open-and-obvious hazard, obviating Casna's duty of care.

{¶ 9} On June 6, 2012, the trial court issued a decision granting Caribbean Jerks' motion for summary judgment. The court reviewed the relevant provisions in the lease agreement and concluded that the area of the parking lot where Sleeper fell was a common area under the possession and control of Casna. As such, the court found that "Caribbean Jerks had no duty to maintain the area in which Mr. Sleeper fell." (Decision Granting Caribbean Jerks' Motion for Summary Judgment ("Caribbean Decision"), 7.) The court further observed that, even if Caribbean Jerks had a duty to maintain the premises, the ice was an open-and-obvious hazard.

II. Assignments of Error

{¶ 10} Plaintiffs appeal, assigning the following errors:

[I.] THE TRIAL COURT ERRED WHEN IT STRUCK THE DEPOSITION TESTIMONY OF JOSEPH SCARFO AND BRIAN SLEEPER AS HEARSAY VIOLATION SWHEN [SIC] THE STATEMENTS ARE THE ADMISSIBLE TESTIMONY OF A PARTY-OPPONENT.
[II.] THE TRIAL COURT ERRED WHEN IT RULED THAT DEFENDANTS/APPELLEES CARIBBEAN JERKS, LLC AND CASNA LIMITED PARTNERSHIP WERE NOT LIABLE IN NEGLIGENCE FOR THE INJURIES CAUSED TO PLAINTIFF/APPELLANT BRIAN SLEEPER.
[III.] THE TRIAL COURT ERRED WHEN IT RULED THAT DEFENDANTS/APPELLEES CARIBBEAN JERKS, LLC AND CASNA LIMITED PARTNERSHIP DID NOT HAVE SUPERIOR KNOWLEDGE OF THE HAZARD THAT CAUSED PLAINTIFF/APPELLANT BRIAN SLEEPER'S INJURIES.
[IV.] THE TRIAL COURT ERRED WHEN IT RULED THAT THE OPEN AND OBVIOUS DOCTRINE BARRED PLAINTIFF/APPELLANT'S CLAIM AGAINST DEFENDANTS/APPELLEES CARIBBEAN JERKS, LLC AND CASNA LIMITED PARTNERSHIP.
[V.] THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS/ APPELLEES WHERE DEFENDANTS/APPELLEES HAD NOT ...

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