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Gaffney v. Soukup

Court of Appeals of Ohio, Eleventh District, Geauga

August 28, 2017

SUSAN E. GAFFNEY, et al., Plaintiffs-Appellants,
v.
LINDA D. SOUKUP, Defendant-Appellee.

         Civil Appeal from the Geauga County Court of Common Pleas, Case No. 15 P 000576.

          Rubin Guttman and Ann Marie Stockmaster, Rubin Guttman & Associates, L.P.A., (For Plaintiffs-Appellants).

          Frank G. Mazgaj, and Emily R. Yoder, Hanna, Campbell & Powell, L.L.P., (For Defendant-Appellee).

          OPINION

          THOMAS R. WRIGHT, J.

         {¶1} Appellants, Susan E. Gaffney and Michael Gaffney, appeal the trial court's decision awarding summary judgment in favor of appellee, Linda D. Soukup aka Linda D. Zipple. We reverse.

         {¶2} Susan, Linda's daughter, was visiting her mother in August 2013 at her single family home. Susan had not been to her mother's home for at least two months. She entered through the open garage door and stayed for about an hour. Upon leaving, Susan exited through the front door, which led to a small front porch and a set of stairs that Linda had modified with boards and a plastic exercise step since her cement patio landing was sinking. The exercise step was rectangular and the height of a child's step stool. It consisted of a solid black piece and had four gray feet attached to each corner. The exercise step was not secured to the cement patio on which it was placed and not attached to the steps to which it abutted. Susan stepped onto the exercise step at the bottom of the stairs, it shifted, and her ankle snapped.

         {¶3} Susan filed suit asserting that Linda negligently caused her injuries by creating and maintaining a dangerous condition on her property and failing to warn Susan of the danger. Susan's husband, Michael, asserted a claim for loss of consortium.

         {¶4} Following discovery, the trial court found the condition was open and obvious and granted Linda summary judgment on all claims.

         {¶5} Susan asserts one assignment of error:

         {¶6} "The trial court erred, as a matter of law, by granting summary judgment upon plaintiff-appellants' premises liability claim."

         {¶7} Appellate courts review summary judgment decisions anew and apply the same standard used by the trial court. Civ.R. 56(C) dictates the summary judgment standard stating in part:

         {¶8} "Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, * * * 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 and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor."

         {¶9} A "material fact" for summary judgment depends on the type of the claim being litigated. Hoyt, Inc. v. Gordon & Assocs., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th Dist.1995), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

         {¶10} Furthermore, "the trial court is not permitted to weigh the evidence or choose among reasonable inferences. Dupler v. Mansfield Journal Co. (1980), 64 Ohio St.2d 116, 121 [18 O.O.3d 354, 413 N.E.2d 1187]. Rather, the court must evaluate the evidence, taking all permissible inferences and resolving questions of credibility in favor of the non-moving party. Id." Stewart v. Urig, 176 Ohio App.3d 658, 2008-Ohio-3215, 893 N.E.2d 245, ¶10 (9th Dist.)

         {¶11} In order to establish actionable negligence, Susan must show the existence of a duty, a breach of that duty, and an injury proximately resulting from the breach. Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 680, 693 N.E.2d 271 (1998); Zuzan v. Shutrump, 155 Ohio App.3d 589, 2003-Ohio-7285, 802 N.E.2d 683, ¶6 (7th Dist.)

         {¶12} The legal duty owed by a landowner to one who enters upon his land depends on the status of the entrant. Shump v. First Continental-Robinwood Assoc,71 Ohio St.3d 414, 417, 644 N.E.2d 291 (1994). "A social guest is someone the owner or occupier of land invites onto the property for the purpose of social interaction." Howze v. Carter, 9th Dist. Summit No. 24688, 2009-Ohio-5463, ¶18, citing Scheibel v. Lipton,156 Ohio St. ...


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