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Boyland v. Eagle

Court of Appeals of Ohio, Tenth District

August 24, 2017

Judith Boyland, Plaintiff-Appellant,
v.
Giant Eagle et al., Defendants-Appellees.

         APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 15CVC-1629)

         On Brief:

          Swope and Swope, and Richard F Swope, for appellant. Argued: Richard F Swope.

         On Brief:

          The Center @ 600 Vine, and Molly G. Vance, for appellees Giant Eagle and Prestige Delivery Systems.

         On Brief:

          Emmanuel Olawale, for appellee Emmanuel Enofe.

          DECISION

          TYACK, P.J.

         {¶ 1} Plaintiff-appellant, Judith Boyland, appeals the Franklin County Court of Common Pleas' decision granting defendants-appellees', Prestige Delivery Systems, Inc. and Giant Eagle, motion for summary judgment. For the following reasons, we reverse and remand the decision of the trial court.

         I. FACTS, CASE HISTORY AND JURISDICTION

         {¶ 2} Boyland alleges that on July 30, 2013 while at a Giant Eagle grocery store, she was struck in the back and knocked down by defendant, Emmanuel Enofe. Enofe was pushing a Giant Eagle shopping cart filled with boxes that he was delivering to the store. As a result of the incident, Boyland claims back and neck pain and seeks damages for past and future medical expenses and non-economic damages.

         {¶ 3} Boyland avers that Enofe was an employee of defendants-appellees, Prestige Delivery Systems, Inc. (hereinafter "Prestige") and Giant Eagle. Boyland states in the complaint that Enofe, acting in the course and scope of his employment, was negligent. (Compl. at ¶ 4.) The complaint alleges that Prestige and Giant Eagle were aware of Enofe overloading his cart and obstructing his own vision such that his collision with Boyland occurred. Prestige and Giant Eagle filed a motion for summary judgment arguing that Enofe was an independent contractor and they were not liable and that Boyland failed to allege that Enofe's negligence could be imputed to Giant Eagle.

         {¶ 4} On August 18, 2016, the trial court granted Prestige's and Giant Eagles' motion for summary judgment. The trial court found that Boyland made no allegations that liability should be imputed to Giant Eagle on the basis that Giant Eagle was the owner of the subject property and therefore these arguments should fail as a matter of law. The trial court also found that Boyland made no argument of liability under apparent agency or agency by estoppel.

         {¶ 5} The trial court concluded that there is no evidence in the record that Giant Eagle or Prestige controlled or retained the right to control the mode and manner of Enofe's work. The trial court found that Boyland failed to establish any genuine issue of material fact that Enofe is an employee of Prestige or Giant Eagle. Prestige's and Giant Eagles' motion for summary judgment was granted and all claims against them were dismissed.

         {¶ 6} On January 23, 2017, Boyland dismissed her complaint only as to Enofe, pursuant to Civ.R. 41(A)(1). Boyland then filed a notice of appeal on February 20, 2017 from the August 18, 2016 decision granting summary judgment.

         {¶ 7} The August 18, 2016 interlocutory summary judgment order dismissing Giant Eagle and Prestige was converted into a final appealable order when Boyland dismissed defendant Enofe from the lawsuit pursuant to Civ.R. 41(A)(1). "[A] Civ.R. 41 dismissal dismisses all claims against the defendant designated in the dismissal notice and does not apply to defendants named in the complaint who are not designated in the notice of dismissal." Denham v. New Carlisle, 86 Ohio St.3d 594, 597 (1999). Because voluntary dismissal pursuant to Civ.R. 41(A) renders the parties as if no suit had ever been filed against only the dismissed parties, a trial court's summary judgment decision meets the requirements of Civ.R. 54(B) and is a final appealable order. Id., see Pattison v. W.W. Grainger, Inc., 120 Ohio St.3d 142, 2008-Ohio-5276 (interpreting the change in language of Civ.R. 41 in response to the decision in Denham). The trial court's August 18, 2016 decision granting summary judgment was rendered a final appealable order under R.C. 2505.02 and Civ.R. 54(B), and properly appealed to this court.

         II. ASSIGNMENT OF ERROR AND STANDARD OF REVIEW

         {¶ 8} Boyland brings one assignment of error for our consideration:

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AS TO DEFENDANTS-APPELLEES, GIANT EAGLE AND PRESTIGE DELIVERY SYSTEMS, INC., AS TO PLAINTIFF-APPELLANT JUDITH BOYLAND.

         {¶ 9} Civ.R. 56(C) states that summary judgment shall be rendered forthwith if:

[T]he pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion.

         {¶ 10} Accordingly, summary judgment is appropriate only where: (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the non-moving party, reasonable minds can come to but one conclusion and that conclusion is adverse to the non-moving party. Tokles & Son, Inc. v. Midwestern Indemn. Co., 65 Ohio St.3d 621, 629 (1992), citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 65-66 (1978). "[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record * * * which demonstrate the absence of a genuine issue of fact on a material element of the non-moving party's claim." Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). Once the moving party meets its initial burden, the non-moving party must then produce competent evidence showing that there is a genuine issue for trial. Id. at 293.

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party.

Civ.R. 56(E). "Even the inferences to be drawn from the underlying facts contained in the evidentiary materials, such as affidavits and depositions, must be construed in a light most favorable to the party opposing the motion." Hannah v. Dayton Power & Light Co., 82 Ohio St.3d 482, 485 (1998). Summary judgment is a procedural device to terminate litigation, so it must be awarded cautiously with any doubts resolved in favor of the non-moving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-59 (1992).

         {¶ 11} In the summary judgment context, a "material" fact is one that might affect the outcome of the suit under the applicable substantive law. Turner v. Turner, 67 Ohio St.3d 337, 340 (1993). When determining what is a "genuine issue, " the court decides if the evidence presents a sufficient disagreement between the parties' positions. Id.

         {¶ 12} De novo review is well-established as the standard of review for summary judgment. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). We stand in the shoes of the trial court and conduct an independent review of the record applying the same summary judgment standard. As such, we must affirm the trial court's judgment if any of the grounds raised by the moving party, at the trial court's level, are found to support it, even if the trial court failed to consider those grounds. See Dresher; Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41-42 (9th Dist.1995).

         III. CIV.R. 8 AND NOTICE PLEADING

         {¶ 13} The trial court found in its decision granting summary judgment that Boyland failed to make allegations in the complaint that liability should be imputed to Giant Eagle on the basis that Giant Eagle was the owner of the subject property and that these arguments should fail as a matter or law. The trial court also found that Boyland made no such argument in the complaint of liability under apparent agency or agency by estoppel.

         {¶ 14} Civ.R. 8 provides in pertinent part:

(A) Claims for relief. A pleading that sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the claim showing that the party is entitled to relief, and (2) a demand for judgment for the relief to which the party claims to be entitled.
* * *
(E) Pleading to be concise and direct; consistency.
(1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.
* * *
(F) Construction of pleadings. All pleadings shall be so construed as to do substantial justice.

         {¶ 15} We are mindful of the general rule that pleadings shall be construed so as to do substantial justice and to that end, shall be construed liberally in order that substantive merits of the action may be served. MacDonald v. Bernard, 1 Ohio St.3d 85 (1982).

         {¶ 16} Ohio is a notice-pleading state. "Ohio law does not ordinarily require a plaintiff to plead operative facts with particularity." Cincinnati v. Beretta U.SA. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, ¶ 29. Notice pleading under Civ.R. 8(A)(1) and (E) requires that a claim concisely set forth only those operative facts sufficient to give "fair notice of the nature of the action." Ford v. Brooks, 10th Dist. No. 11AP-664, 2012-Ohio-943, ¶ 13. (Internal quotations omitted.) "Nevertheless, to constitute fair notice, the complaint must allege sufficient underlying facts that relate to and support the alleged claim; the complaint may not simply state legal conclusions." Montgomery v. Ohio State Univ., 10th Dist. No. 11AP-1024, 2012-Ohio-5489, ¶ 20.

         {¶ 17} Boyland's complaint alleged the following relevant operative facts:

2.) Plaintiff asserts Defendant Giant Eagle permitted and directed an employee of Defendant Prestige Delivery Systems, to move product into their store, controlling where the merchandise should be placed.
3.) Plaintiff asserts that while the employee of Defendant Prestige Delivery Systems, Defendant Emmanuel Enofe, was acting in the course and scope of his employment for Defendants, he negligently pushed a cart loaded with merchandise into Plaintiffs back, throwing her to the floor.
4.) Plaintiff asserts Defendant Giant Eagle, Defendant Prestige Delivery Systems, and their employee, Defendant Emmanuel Enofe, acting in the course and scope of his employment with Defendants, were negligent in training, supervising, and permitting the employee, Defendant Emmanuel Enofe, to be overloaded, delivering merchandise in a crowded store and operating his cart into the back of Plaintiff, ...

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