Court of Appeals of Ohio, Second District, Montgomery
KIMBERLY J. NICOLL, et al. Plaintiff-Appellant
CENTERVILLE CITY SCHOOLS, et al. Defendant-Appellee
Court Case No. 16-CV-1751 (Civil Appeal from Common Pleas
J. MANNING, Attorney for Plaintiff-Appellant.
RAYMOND H. DECKER, Jr., Attorney for Defendant-Appellee.
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.
Factual and Procedural History
2} Nicoll's deposition testimony established the
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
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,
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 ...