Court of Appeals of Ohio, Eleventh District, Geauga
SUSAN E. GAFFNEY, et al., Plaintiffs-Appellants,
LINDA D. SOUKUP, Defendant-Appellee.
Appeal from the Geauga County Court of Common Pleas, Case No.
15 P 000576.
Guttman and Ann Marie Stockmaster, Rubin Guttman &
Associates, L.P.A., (For Plaintiffs-Appellants).
G. Mazgaj, and Emily R. Yoder, Hanna, Campbell & Powell,
L.L.P., (For Defendant-Appellee).
R. WRIGHT, J.
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.
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.
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
Following discovery, the trial court found the condition was
open and obvious and granted Linda summary judgment on all
Susan asserts one assignment of error:
"The trial court erred, as a matter of law, by granting
summary judgment upon plaintiff-appellants' premises
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:
"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."
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).
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
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
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. ...