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Brosnan v. Heinen's, Inc.

Court of Appeals of Ohio, Eighth District, Cuyahoga

November 2, 2017

ROBERT BROSNAN, ET AL. PLAINTIFFS-APPELLANTS
v.
HEINEN'S, INC., ET AL. DEFENDANTS-APPELLEES

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-848888

          ATTORNEY FOR APPELLANTS Stephen G. Thomas Stephen G. Thomas Co. L.P.A.

          ATTORNEY FOR APPELLEES Patrick M. Roche Collins, Roche, Utley & Garner, L.L.C.

          BEFORE: Laster Mays, J., Keough, A.J., and McCormack, J.

          JOURNAL ENTRY AND OPINION

          ANITA LASTER MAYS, J.

         {¶1} Plaintiff-appellant, Robert Brosnan ("Brosnan"), appeals the trial court's grant of summary judgment in favor of defendant-appellee, Heinen's, Inc. ("Heinen's"), on Brosnan's claims for negligence and nuisance. Brosnan's wife, Mary Brosnan, appeals the derivative loss of consortium claim. We affirm.

         I. Background and Facts

         {¶2} On August 6, 2013, at approximately 10:15 a.m., 71-year-old Brosnan was walking toward the entrance of the Heinen's grocery store located in Bainbridge Township, Ohio ("store") when he tripped and fell over a raised portion of concrete located in the parking lot near the entrance. At the time of the incident, Brosnan suffered from a detached retina in his right eye, causing limited peripheral vision. After the incident, Brosnan suffered from complete blindness in the right eye.

         {¶3} Heinen's refers to the raised area as a curb while Brosnan refers to the area as a tail. For purposes of this case, it is identified as the "edge." Heinen's position is that: (1) the edge is a curb and no defect exists; (2) Brosnan was familiar with the lot and visited weekly; (3) the lighting was sufficient; (4) the traffic was typical; and (5) the edge was open and obvious. Brosnan admitted that he was aware of the existence of the edge because there were similar areas in the parking lot, but he was not paying attention to where he was walking because he was watching for traffic.

         {¶4} Brosnan further describes the edge as a "concrete tail" measuring "slightly more than two inches in height, " located near the store entrance at Ohio State Highway Route 306. The edge once served as an "architectural landscaping feature." Brosnan denies that the edge was open and obvious due to the: (1) lack of yellow cautionary paint; (2) shadows caused by the angle of sunlight and the building; (3) presence of a speed bump and/or planter impeding visibility of the edge; and (4) distraction caused by vehicles entering and exiting from Route 306 across the access area to the store from the parking lot. Brosnan contends that these circumstances posed a reasonably foreseeable risk of harm to pedestrians navigating the driveway because the edge was not discernible, served no purpose, and created a tripping hazard for patrons focused on avoiding oncoming traffic near the entrance of the store.

         {¶5} Brosnan filed suit on July 28, 2015, against Heinen's and John Doe placeholders who were dismissed after discovery. Heinen's moved for summary judgment on August 1, 2016, that was stayed pending the filing of an answer and the completion of discovery. Brosnan opposed the motion for summary judgment on September 13, 2016, discovery was completed with leave of court, and the trial court granted summary judgment on November 16, 2016.

         {¶6} The trial court determined:

[I]n construing the evidence in a light most favorable to plaintiffs, [the court] finds that reasonable minds can come to only one conclusion, that the curb in Heinen's parking [lot] on which plaintiff tripped and fell was open and obvious and that there is no evidence of a defective or unsafe condition in the parking lot that caused plaintiffs fall. Plaintiffs argument that the fact that he was looking out for traffic in the parking lot at the time of his fall constitutes an attendant circumstance fails because he testified that the traffic in the parking lot at the time was not out of the ordinary. See plaintiffs deposition transcript pages, 54-55, 70-71, and Bounds v. Marc Glassman, Inc., 8th Dist. Cuyahoga No. 90610, 2008-Ohio-5989, ¶ 25. He has not established that the traffic in the parking lot at that time was "any different than a shopper would normally encounter in that parking lot." Id. Accordingly, there are no genuine issues of material fact that remain to be litigated and defendant Heinen's is entitled to judgment as a matter of law.

         {¶7} The instant appeal followed.

         II. Law and Analysis

         {¶8} Brosnan poses two assigned errors:

I. The trial court erred in granting summary judgment to the defendant.
II. The trial court erred in holding that the open and obvious defense remains viable.

         {¶9} We address the combined errors for purposes of judicial economy. The trial court's findings are affirmed.

         A. Standard of Review

         {¶10} We review a trial court's entry of summary judgment de novo, using the same standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment may only be granted when the following is established: (1) there is no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and the conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in its favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375 N.E.2d 46 (1978); Civ.R. 56(E).

         {¶11} The party moving for summary judgment bears the initial burden of apprising the trial court of the basis of its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of fact on an essential element of the nonmoving party's claim. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). "Once the moving party meets its burden, the burden shifts to the nonmoving party to set forth specific facts demonstrating a genuine issue of material fact exists." Willow Grove, Ltd. v. Olmsted Twp., 8th Dist. Cuyahoga No. 101996, 2015-Ohio-2702, 38 N.E.3d 1133, ¶ 14-15, citing Dresher. "To satisfy this burden, the nonmoving party must submit evidentiary materials showing a genuine dispute over material facts." Willow Grove at ¶ 15, citing PNC Bank v. Bhandari, 6th Dist. Lucas No. L-12-1335, 2013-Ohio-2477.

         B. Discussion

         {¶12} Brosnan is required to establish that genuine issues of material fact exist regarding whether: (1) Heinen's owed Brosnan a duty of care; (2) Heinen's breached the duty; and (3) whether Heinen's breach was the proximate cause of Brosnan's injury. Bounds v. Marc Glassman, Inc., 8th Dist. Cuyahoga No. 90610, 2008-Ohio-5989, ¶ 10, inciting Texler v. D.O Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 680, 693 N.E.2d 271 (1998).

         {¶13} "Whether a duty exists is a question of law for the court to determine." Bounds at ¶ 10, citing Mussivand v. David,45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989). There can be no legal liability in the absence of establishing the existence of a duty. Bounds at ¶ 10, citing Jeffers v. Olexo,43 Ohio St.3d 140, 142, 539 N.E.2d 614 (1989). The "analysis ends and no further inquiry is necessary." Boun ...


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