Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEYS FOR APPELLANT Alan I. Goodman Alan I. Goodman Co.
L.P.A. Jeffrey D. Johnson
ATTORNEYS FOR APPELLEE Barbara A. Langhenry Director of Law
The City of Cleveland Jerome A. Payne Assistant Director of
BEFORE: Kilbane, P.J., S. Gallagher, J., and Blackmon, J.
JOURNAL ENTRY AND OPINION
EILEEN KILBANE, PRESIDING JUDGE.
Plaintiff-appellant, Sher Smiley ("Smiley"),
appeals from the trial court's order granting summary
judgment in favor of defendant-appellee, the city of
Cleveland ("the City"). For the reasons set forth
below, we affirm.
In September 2014, Smiley filed a complaint alleging she
slipped and fell on a metal strip in the floor while exiting
the indoor swimming pool area into the outdoor water park
area at Cudell Recreation Center ("the recreation
center"). The recreation center is owned and operated by
the City. Smiley further alleges that her fall caused injury
to her head, neck, lower back, and left ankle and aggravated
her preexisting back and neck injuries.
In November 2014, the City filed an answer to the complaint,
asserting numerous defenses. In December 2014, the City moved
to dismiss Smiley's complaint for failure to state a
claim, arguing it was immune from liability under R.C.
2744.02. Smiley missed the deadline for opposing the motion,
and the trial court granted the City's motion to dismiss,
noting it was unopposed. Smiley then filed a motion for
relief from judgment along with a brief in support explaining
why she missed the deadline. The trial court granted
Smiley's motion for relief for judgment and gave her an
opportunity to oppose the City's motion to dismiss.
After Smiley filed her response, the trial court granted the
City's motion to dismiss. Smiley appealed the trial
court's order dismissing her complaint to this court.
Smiley v. Cleveland, 8th Dist. Cuyahoga No. 103987,
2016-Ohio-7711 ("Smiley I"). On appeal, we
determined that whether the wet metal strip constituted a
physical defect was a question of fact that could not be
resolved through a motion to dismiss. (The question as to
whether the wet metal strip constituted a physical defect on
the premises was determined on appeal to be a question of
fact that cannot be resolved through a motion to dismiss.)
Id. at _ 12. Specifically, we
determined that under the facts as alleged, it was not
inconceivable that water could have interacted with the metal
strip in some way resulting in a physical defect.
Id. Accordingly, we reversed the trial court's
dismissal and remanded this matter to the trial court for
further proceedings. Id. . at_15.
Following our remand, the City filed its motion for summary
judgment. The City supported its motion with portions of
Smiley's deposition transcript as well as the affidavit
of the recreation center manager, Ron Fields
("Fields"). Smiley filed a brief in opposition and
attached the full transcript of her deposition.
At her deposition, Smiley testified that she went to the
recreation center with her boyfriend and her teenage son on
July 6, 2013. The group planned to swim in the recreation
center's indoor pool and use its outdoor water park area.
This was Smiley's first visit to the recreation center.
Upon arriving at the recreation center, Smiley went into the
women's locker room to change. When she came out of the
locker room, a young man, whom Smiley describes as an
African-American male in his early twenties, told her that
she needed to take off the water shoes she was wearing.
Smiley testified that the young man was sitting at a desk
located outside of the locker room in the indoor swimming
area. The young man wore "a white wife beater [shirt]
and some blue shorts." Smiley assumed this man was a
recreation center employee.
Smiley went back into the women's locker room to remove
her water shoes. When Smiley reentered the pool area, her
attention was drawn to her son in the pool "jumping up
and down, showing [her] all his little tricks he was
doing." Smiley and her boyfriend then began to walk
toward the outdoor water park. The indoor and outdoor areas
of the pool complex are separated by a sliding glass door
that runs on a metal strip in the floor. While exiting the
indoor pool area through the open glass door, Smiley slipped
and fell on the metal strip. Smiley did not observe the metal
strip before she stepped on it, explaining she "was just
* * * looking straight ahead" at the features of the
water park and "wasn't paying attention to
down." Smiley explained that the surrounding floor was
wet, but acknowledged that had she looked down she would have
seen the metal strip.
In his affidavit, Fields, the recreation center manager,
identified the five life guards by name that were working at
the recreation center on July 23, 2016. Fields explained that
none of these five lifeguards are African-American. Fields
stated that lifeguards are required to wear white short
sleeve t-shirts with the City logo printed on the front and