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Smiley v. City of Cleveland

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 19, 2018

SHER SMILEY PLAINTIFF-APPELLANT
v.
CITY OF CLEVELAND DEFENDANT-APPELLEE

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-14-832319

          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 Law

          BEFORE: Kilbane, P.J., S. Gallagher, J., and Blackmon, J.

          JOURNAL ENTRY AND OPINION

          MARY EILEEN KILBANE, PRESIDING JUDGE.

         {¶1} 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.

         {¶2} 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.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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 ...


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