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Hudzik v. Boulevard Centre Company

Court of Appeals of Ohio, Eleventh District, Trumbull

December 29, 2017

LORI A. HUDZIK, et al., Plaintiff-Appellant,

         Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2016 CV 00877. Judgment: Affirmed.

          Michael J. Maillis, Kisling, Nestico & Redick, LLC, (For Plaintiff-Appellant).

          William J. Meola, Bonezzi Switzer Polito & Hupp Co., (For Defendant-Appellee).



         {¶1} Appellant, Lori A. Hudzik, appeals from the January 17, 2017 judgment of the Trumbull County Court of Common Pleas, granting appellee's, Boulevard Centre Company ("Boulevard Centre"), motion for summary judgment. This matter involves an incident in which appellant slipped and injured herself in a water filled pothole/depression in Boulevard Centre's parking lot while shopping at the Eastwood Mall Complex in Niles, Trumbull County, Ohio. The issues raised by appellant are whether Boulevard Centre had actual or constructive knowledge of the condition of the parking lot and whether the defective condition was open and obvious. For the reasons stated, we affirm.

         {¶2} Appellant suffered injury on August 15, 2011 after leaving Office Max.[1] As appellant was walking to her car, the wheel of her shopping cart, which contained two heavy boxes of copy paper, got caught in a water filled pothole/depression. The cart fell while appellant held on resulting in the twisting of her body. It rained throughout the morning prior to appellant entering Office Max, during the time she was inside the store shopping, and immediately after the incident.

         {¶3} In her May 12, 2014 deposition, appellant, who was alone at the time of the incident, claims that the parking lot contained water filled potholes/depressions which created an appearance that the surface was level. However, appellant could not identify the specific spot of her mishap. Rather, appellant's only specific description of the condition which she believes caused her mishap was that it was some type of pothole. Otherwise, appellant described the general area of her mishap as containing a one to two-inch-deep depression that spanned between two concrete traffic barriers. This general area was photographed by her husband, Michael S. Hudzik, shortly after the incident. (Exhibit B).

         {¶4} Appellant acknowledged in her deposition that she generally traversed the same area of the parking lot walking into Office Max as she did upon exiting and walking back to her car. Upon her arrival, appellant had no difficulty in the parking lot in making her way from her car into the store. After exiting Office Max, appellant was not distracted by any unusual activities or events in the vicinity and there were no obstructions or obstacles in her path which would have diverted her attention from where she was walking. Appellant claimed no concern as she exited the premises until the moment of her mishap.

         {¶5} Boulevard Centre received no complaints regarding the condition of the parking lot surface in the one year immediately preceding appellant's mishap. Just over one year before appellant's incident, Office Max personnel made a request for a specific repair to an area of the parking lot surface. That repair was promptly made. Boulevard Centre also received no complaints regarding injuries or accidents resulting from the condition of the parking lot in the two years before appellant's mishap.

         {¶6} On May 19, 2016, appellant and her husband filed a personal injury complaint against Boulevard Centre.[2] Boulevard Centre subsequently filed an answer.

         {¶7} On December 30, 2016, Boulevard Centre filed a motion for summary judgment. Appellant filed a response four days later.

         {¶8} On January 17, 2017, the trial court granted Boulevard Centre's motion for summary judgment. Appellant filed a timely appeal asserting the following two assignments of error:[3]

         {¶9} "[1.] The trial court erred by ruling that Appellee lacked notice of the dangerous condition in its parking lot.

         {¶10} "[2.] The trial court committed prejudicial error in granting defendants-appellees' motion for summary judgment, as the defective condition was neither open nor obvious."

         {¶11} Preliminarily, we note that "[s]ummary judgment is a procedural tool that terminates litigation and thus should be entered with circumspection. Davis v. Loopco Industries, Inc., 66 Ohio St.3d 64, 66 (1993). Summary judgment is proper where (1) there is no genuine issue of material fact remaining to be litigated; (2) the movant is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and, viewing the evidence in the non-moving party's favor, that conclusion favors the movant. See e.g. Civ.R. 56(C).

         {¶12} "When considering a motion for summary judgment, the trial court may not weigh the evidence or select among reasonable inferences. Dupler v. Mansfield Journal Co.,64 Ohio St.2d 116, 121 (1980). Rather, all doubts and questions must be resolved in the non-moving party's favor. Murphy v. Reynoldsburg,65 Ohio St.3d 356, 359 (1992). Hence, a trial court is required to overrule a motion for summary judgment where conflicting evidence exists and alternative reasonable inferences can be drawn. Pierson v. Norfork Southern Corp., 11th Dist. No. 2002-A-0061, 2003-Ohio-6682, ¶36. In short, the central issue on summary judgment is, 'whether the evidence presents sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.' Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252 (1986). On appeal, we review a ...

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