MARY MCCARTHY, ET AL. Plaintiffs-Appellants
FAMILY DOLLAR STORES OF OHIO, INC., ET AL. Defendants-Appellees
from the Stark County Court of Common Pleas, Case No.
Plaintiffs-Appellants BRIAN L. ZIMMERMAN B. Zimmerman Law.
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.
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.
OF THE FACTS AND CASE
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.
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.
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
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.
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.
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.
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.
JUDGMENT STANDARD OF REVIEW
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).
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
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).
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).
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
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.
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