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McCarthy v. Family Dollar Stores of Ohio, Inc.

Court of Appeals of Ohio, Fifth District, Stark

February 12, 2018

MARY MCCARTHY, ET AL. Plaintiffs-Appellants
v.
FAMILY DOLLAR STORES OF OHIO, INC., ET AL. Defendants-Appellees

         Appeal from the Stark County Court of Common Pleas, Case No. 2016CV02213

          For Plaintiffs-Appellants BRIAN L. ZIMMERMAN B. Zimmerman Law.

          For Defendants-Appellees CHRISTOPHER E COTTER SAMUEL N. DODOO Roetzel & Andress, LPA.

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          HOFFMAN, J.

         {¶1} Plaintiffs-appellants Mary McCarthy, et al. appeal the July 31, 2017 Judgment Entry entered by the Stark County Court of Common Pleas, which granted summary judgment in favor of defendant-appellee Family Dollar Stores of Ohio, Inc. ("Family Dollar").

         STATEMENT OF THE FACTS AND CASE

         {¶2} During the afternoon of May 29, 2015, Appellant Mary McCarthy ("McCarthy") visited the Family Dollar Store in Alliance, Ohio. McCarthy frequented this particular store two or three times a month. McCarthy entered the store through a glass door marked with a red and white "IN" sticker. The entrance door stands adjacent to the exit door, which is marked with a red and white "OUT" sticker. Both doors on the outside of store have a vertical metal handlebar. Both doors on the inside of store have a vertical metal handlebar and a horizontal metal bar which extends across the center of the doors.

         {¶3} After paying for her merchandise, McCarthy walked toward the exit. She observed a black floor mat which appeared to lead to a "clear and bright" open exit door. McCarthy followed the floor mat and looked up just as she walked into a clear glass window. McCarthy lost her balance and fell backwards, fracturing her left hip and striking her head on the floor. At the time of the incident, the window was free of any signs or stickers, and a display unit was not positioned in front of the window as is depicted in the pictures attached to McCarthy's deposition.

         {¶4} Appellant Paul McCarthy, McCarthy's husband, and Earl Eckert went to Family Dollar later the same day to retrieve McCarthy's vehicle. They spoke with Marissa DiFlour, the store manager, who admitted another customer had walked into the same window that same day, but prior to McCarthy's accident.

         {¶5} On October 7, 2016, Appellants filed a complaint against Family Dollar, alleging McCarthy suffered severe personal injuries as a result of the May 29, 2016 incident.

         {¶6} On June 12, 2017, Appellants filed a motion for summary judgment on the issue of liability. Family Dollar filed a motion for summary judgment on June 23, 3017. Appellants filed a memorandum contra on July 14, 2017.

         {¶7} Via Judgment Entry filed July 31, 2017, the trial court granted summary judgment in favor of Family Dollar, finding the window was an open and obvious danger.

         {¶8} It is from this judgment entry Appellants appeal, raising as their sole assignment of error:

I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT I FAVOR OF DEFENDANT FAMILY DOLLAR STORES OF OHIO, INC.

         SUMMARY JUDGMENT STANDARD OF REVIEW

         {¶9} Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). As such, this Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

         {¶10} Civ.R. 56 provides summary judgment may be granted only after the trial court determines: 1) no genuine issues as to any material fact remain to be litigated; 2) the moving party 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 such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 364 N.E.2d 267 (1977).

         {¶11} It is well established the party seeking summary judgment bears the burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1987). The standard for granting summary judgment is delineated in Dresher v. Burt, 75 Ohio St.3d 280 at 293, 662 N.E.2d 264 (1996): " * * * a party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party." The record on summary judgment must be viewed in the light most favorable to the opposing party. Williams v. First United Church of Christ, 37 Ohio St.2d 150, 309 N.E.2d 924 (1974).

         {¶12} In order to establish a claim for negligence, a plaintiff must show: (1) a duty on the part of defendant to protect the plaintiff from injury; (2) a breach of that duty; and (3) an injury proximately resulting from the breach. Jeffers v. Olexo, 43 Ohio St.3d 140, 142, 539 N.E.2d 614 (1989).

         {¶13} In a premises liability case, the relationship between the owner or occupier of the premises and the injured party determines the duty owed. Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315, 1996-Ohio-137, 662 N.E.2d 287; Shump v. First Continental-Robinwood Assocs., 71 Ohio St.3d 414, 417, 644 N.E.2d 291 (1994). Ohio adheres to the common-law classifications of invitee, licensee, and trespasser in cases of premises liability. Shump, supra; Boydston v. Norfolk S. Corp., 73 Ohio App.3d 727, 733, 598 N.E.2d 171, 175 (4th Dist.1991).

         {¶14} The parties do not dispute McCarthy was a business invitee on May 29, 2015, when she entered the Family Dollar Store in Alliance, Ohio, to make a purchase. An invitee is defined as a person who rightfully enters and remains on the premises of another at the express or implied invitation of the owner and for a purpose beneficial to the owner. Broka v. Cornell's IGA ...


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