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Nicoll v. Centerville City Schools

Court of Appeals of Ohio, Second District, Montgomery

January 5, 2018

KIMBERLY J. NICOLL, et al. Plaintiff-Appellant
v.
CENTERVILLE CITY SCHOOLS, et al. Defendant-Appellee

         Trial Court Case No. 16-CV-1751 (Civil Appeal from Common Pleas Court)

          THOMAS J. MANNING, Attorney for Plaintiff-Appellant.

          RAYMOND H. DECKER, Jr., Attorney for Defendant-Appellee.

          OPINION

          FROELICH, J.

         {¶ 1} Kimberly Nicoll appeals from a judgment of the Montgomery County Court of Common Pleas, which granted summary judgment to Centerville City Schools on her negligence claim. For the following reasons, the trial court's judgment will be affirmed.

         I. Factual and Procedural History

         {¶ 2} Nicoll's deposition testimony established the following facts.

         {¶ 3} On March 18, 2015, Nicoll took her two daughters, ages 7 and 9, to Centerville High School for Cheer Madness, a three-day event for elementary school students involved in cheerleading. The event is held annually in the high school gymnasium. Nicoll and her children had attended Cheer Madness the year before, and Nicoll testified that she had been to the gym "at least three times." (Nicoll Depo. at 39.) Nicoll and her daughters arrived at Centerville High School at approximately 6:00 p.m. Nicoll testified that the weather was sunny but cool. She wore pants, a sweater, and hiking shoes.

         {¶ 4} Upon arriving, Nicoll parked her van in a space at the front of the parking lot, with the front bumper of her vehicle near a curb and sidewalk. To the left of her parked van was an empty accessible parking space. Nicoll exited her van and opened the rear driver's side door for her daughters to get out. She grabbed her daughters' hands, and "headed into the gym with about a hundred other parents and kids that were walking in at the same time." (Id. at 42.)

         {¶ 5} Nicoll described the circumstances of her fall, stating:

As I walked up the curb, [my older daughter] stepped on the curb first, I stepped up second, and [my younger daughter] was behind me. I went to take my following step. When I took my following step, my right leg didn't move. It was just - I can't explain it. It just didn't move with me, and I fell forward.

(Id. at 44.) Nicoll stated that she assumed that she had stepped up with her right foot, she took a second step with her left foot, and then fell when she could not move her right foot, which was "stuck." (Id. at 46.) After the fall, Nicoll looked back at her ankle and noticed that the pavement was "cracked and broken apart." (Id. at 46.) Nicoll was initially diagnosed with a broken right ankle, but she has had continuing medical issues related to her ankle.

         {¶ 6} On April 1, 2016, Nicoll filed a negligence claim against Centerville City Schools ("CCS") in the common pleas court. Nicoll's husband, Timothy, brought a loss of consortium claim against CCS. Nicoll's complaint also named the Ohio Tort Recovery Unit as a party-defendant, noting that the Ohio Department of Medicaid may have a subrogation claim. CCS and the Ohio Department of Medicaid filed answers, and the parties engaged in discovery, including the taking of Nicoll's deposition.

         {¶ 7} On February 8, 2017, CCS moved for summary judgment on Nicoll's negligence claim. CCS acknowledged, for purposes of its motion, that it did not have sovereign immunity for the claim, pursuant to R.C. 2744.02(B). It claimed, however, that the hazard was "open and obvious, " negating any duty to warn to Nicoll. Nicoll opposed the motion, claiming that whether the hazard was an open and obvious danger was a matter for the jury and that ...


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