Court of Appeals of Ohio, Eleventh District, Trumbull
LORI A. HUDZIK, et al., Plaintiff-Appellant,
BOULEVARD CENTRE COMPANY, Defendant-Appellee.
Appeal from the Trumbull County Court of Common Pleas, Case
No. 2016 CV 00877. Judgment: Affirmed.
Michael J. Maillis, Kisling, Nestico & Redick, LLC, (For
William J. Meola, Bonezzi Switzer Polito & Hupp Co., (For
COLLEEN MARY OTOOLE, J.
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.
Appellant suffered injury on August 15, 2011 after leaving
Office Max. 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.
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).
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.
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.
On May 19, 2016, appellant and her husband filed a personal
injury complaint against Boulevard Centre. Boulevard Centre
subsequently filed an answer.
On December 30, 2016, Boulevard Centre filed a motion for
summary judgment. Appellant filed a response four days later.
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
"[1.] The trial court erred by ruling that Appellee
lacked notice of the dangerous condition in its parking lot.
"[2.] The trial court committed prejudicial error in
granting defendants-appellees' motion for summary
judgment, as the defective condition was neither open nor
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).
"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 ...