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Lloyd v. Rogerson

Court of Appeals of Ohio, Ninth District, Wayne

June 28, 2019

SUSAN LLOYD Appellant
v.
JUSTIN ROGERSON Appellee

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO CASE No. 2016 CVC-H 000321

          SUSAN LLOYD, pro se, Appellant.

          TERRENCE J. KENNEALLY and SEAN M. KENNEALLY, Attorneys at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          Lynne S. Callahan, Judge.

         {¶1} Appellant, Susan Lloyd, appeals from the judgment of the Wayne County Common Pleas Court granting summary judgment in favor of Appellee, Justin Rogerson. For the reasons set forth below, this Court affirms in part and reverses in part.

         I.

         {¶2} In July 2014, Ms. Lloyd signed a one-year lease with Redwood Living, Inc. ("Redwood") for an apartment in a complex in Wooster. The apartment complex consisted of single story apartments, with attached garages and separate driveways, arranged in rows of five to seven apartments adjoining one another. Ms. Lloyd leased an end apartment and, thus, had one adjoining neighbor, Mr. Rogerson, who resided in the apartment complex prior to Ms. Lloyd moving in.

         {¶3} Ms. Lloyd chose this specific apartment complex because it was advertised as being a smoke-free environment. She believed this meant smoking was prohibited everywhere on the apartment complex property. Ms. Lloyd sought a smoke-free living environment because she suffered from a heart condition, which was worsened by smoke.

         {¶4} On the day that she moved in, Ms. Lloyd saw Mr. Rogerson smoking in the driveway and immediately notified him that smoking was prohibited in the apartment complex and that she has a heart condition and could not be subjected to smoke. Ms. Lloyd claimed Mr. Rogerson responded with profanity and was belligerent to the point that she had to call the police because she was afraid for her safety. Sometime thereafter, Mr. Rogerson approached Ms. Lloyd to discuss his smoking and her health condition. Mr. Rogerson claimed Ms. Lloyd ignored him and continued talking on her phone and "bad mouthing [him] for approximately three minutes." Mr. Rogerson left without speaking to her. And so began their tumultuous relationship as neighbors wherein they each claimed they were being harassed by the other.

         {¶5} A few days after moving in, Ms. Lloyd notified Redwood that multiple residents were in violation of the lease by smoking in their garages. Thereafter, Ms. Lloyd routinely notified Redwood of the ongoing smoking violations and other sundry lease violations. Ms. Lloyd documented all of these violations by keeping a diary and a log and taking photographs and videos of the other tenants and the lease violations.

         {¶6} In addition to smoking in the driveway and in his garage, Ms. Lloyd also claimed that Mr. Rogerson was smoking inside his apartment and that her apartment "reek[ed] of cigarette smoke" because of Mr. Rogerson. Due to the infiltration of cigarette smoke into her apartment and her heart condition, Ms. Lloyd would leave her apartment and sleep in her car.

         {¶7} Dissatisfied with Redwood's response to her complaints, Ms. Lloyd began escrowing her rent payments with the Wayne County Municipal Court in September 2014. In October 2014, Redwood filed an eviction proceeding against Ms. Lloyd for disturbing the other tenants' peaceful enjoyment. Redwood called Mr. Rogerson to testify against Ms. Lloyd at the eviction hearing in November 2014.

         {¶8} Mr. Rogerson moved out on January 31, 2015. Unrelated to the eviction proceedings, Ms. Lloyd moved out on April 30, 2015. Thereafter, Redwood and Ms. Lloyd reached a global settlement as to the eviction and rent escrow proceedings and other claims filed by Ms. Lloyd.

         {¶9} Ms. Lloyd filed a complaint against Mr. Rogerson asserting two causes of action: negligence and willful and wanton misconduct. Ms. Lloyd claimed that Mr. Rogerson's smoking exacerbated her pre-existing health conditions, caused her to develop asthma, and damaged her property. After conducting discovery, Mr. Rogerson filed a motion for summary judgment and Ms. Lloyd responded. The trial court granted summary judgment in favor of Mr. Rogerson as to both of the claims.

         {¶10} Ms. Lloyd timely appeals from this judgment entry, asserting ten assignments of error. To facilitate the analysis, this Court will consolidate and address the assignments of error out of order.

         II.

         ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DISMISSING [MS. LLOYD'S] CASE WITH PREJUDICE AND GRANTING [MR. ROGERSON'S] MOTION FOR SUMMARY JUDGMENT AFTER [MS. LLOYD] SUBMITTED SUFFICIENT EVIDENCE TO ESTABLISH A GENUINE MATERIAL FACT. * * *

         ASSIGNMENT OF ERROR NO. 6

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ALLOWING [MR] ROGERSON TO SMOKE IN A SMOKE FREE COMMUNITY MAKING IT WORSE WITH THE KNOWLEDGE [MR] ROGERSON WAS AWARE SINCE JULY 18[, ] 2014 HE WAS CAUSING INJURY TO [MS] LLOYD[]

         ASSIGNMENT OF ERROR NO. 9

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY STATING [MS] LLOYD DID NOT PRESENT ENOUGH EVIDENCE TO ESTABLISH NEGLIGENCE[] * * *

         ASSIGNMENT OF ERROR NO. 10

THE TR[IA]L COURT COMMITTED REVERSIBLE ERROR BY STATING [MS] LLOYD DID NOT PRESENT ENOUGH EVIDENCE TO ESTABLISH WILLFUL AND WANTON MISCONDUCT BY [MR] ROGERSON[]

         {¶11} Ms. Lloyd's first, sixth, ninth, and tenth assignments of error address the merits of the trial court's order granting summary judgment in favor of Mr. Rogerson. This Court agrees that the trial court erred in granting summary judgment as to the negligence claim with respect to Ms. Lloyd's property damages. However, the trial court did not err in granting summary judgment as to the negligence claim regarding Ms. Lloyd's medical damages and the willful and wanton misconduct claim.

         Summary Judgment Standard

         {¶12} This Court reviews an order granting summary judgment de novo. See Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-2220, ¶ 24, citing Doe v. Shaffer, 90 Ohio St.3d 388, 390 (2000). Summary judgment is proper under Civ.R. 56(C) when: (1) no genuine issue as to any material fact exists; (2) the party moving for summary judgment is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can only reach one conclusion, and that conclusion is adverse to the nonmoving party. Civ.R. 56(C); Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).

         {¶13} Summary judgment consists of a burden-shifting framework. The movant bears the initial burden of demonstrating the absence of genuine issues of material fact concerning the essential elements of the nonmoving party's case. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). Specifically, the moving party must support the motion by pointing to some evidence in the record of the type listed in Civ.R. 56(C). Id. at 292-293. Once the moving party satisfies this burden, the nonmoving party has a "reciprocal burden" to "'set forth specific facts showing that there is a genuine issue for trial.'" Id. at 293, quoting Civ.R. 56(E).

         {¶14} "The substantive law involved controls which facts are considered material." Elyria v. Elbert, 143 Ohio App.3d 530, 532 (9th Dist.2001), citing Orndorff v. Aldi, Inc., 115 Ohio App.3d 632, 635 (9th Dist.1996), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is material when it has the potential to impact the outcome of the case and preclude summary judgment. Elbert at 532. Conversely, factual disputes that cannot affect the outcome of the case are "irrelevant" and have no bearing on summary judgment. Id.

         The Evidence

         {¶15} In his appellee brief, Mr. Rogerson asserts for the first time that the summary judgment decision should be affirmed because Ms. Lloyd failed to submit proper evidence in accordance with Civ.R. 56(C) and (E) in support of her brief in opposition to summary judgment and thus she failed to satisfy her Dresher burden. During oral argument, Mr. Rogerson conceded that he did not raise this issue in the trial court. However, Mr. Rogerson argued that he should be permitted to raise the issue for the first time on appeal because the trial court ruled on the summary judgment motion two days after Ms. Lloyd filed her brief in opposition and exhibits. Ms. Lloyd did not respond to either of these arguments.

         {¶16} It is unnecessary to consider Mr. Rogerson's alternative arguments for affirming the trial court's decision because we are able to review the summary judgment order without consideration of the evidence Mr. Rogerson is now challenging.[1] As explained in the analysis below, relying solely upon all of the non-challenged evidence, [2] there is evidence creating a genuine issue of material fact as to Ms. Lloyd's negligence claim relating to property damage. As to Ms. Lloyd's negligence claim regarding her medical damages, there is no genuine issue of material fact because her two medical expert letters, even assuming without deciding that they were proper Civ.R. 56(C) and (E) evidence, fail to establish proximate cause. Further, it is unnecessary to consider any of the evidence relative to the willful and wanton misconduct claim because that claim fails as a matter of law.

         {¶17} Additionally, this Court will not consider Ms. Lloyd's videos that she references in her appellate brief. [3] These videos were filed with her motion for reconsideration, and not with her summary judgment evidence. "[A] reviewing court cannot consider evidence that a party added to the trial court record after that court's judgment and then decide an appeal from that judgment based on the new evidence." Fifth Third Mtge. Co. v. Salahuddin, 10th Dist. Franklin No. 13AP-945, 2014-Ohio-3304, ¶ 13. This Court's review is limited to the record as it existed when the trial court rendered judgment. Loeschner v. Clark Material Handling Co., 9th Dist. Lorain No. 97CA006856, 1998 WL 646661, *6 (Sept. 16, 1998), fn. 1, citing State v. Ishmail, 54 Ohio St.2d 402 (1978), paragraph one of the syllabus.

         NEGLIGENCE

         {¶18} To prevail on a claim of negligence, the plaintiff must establish the existence of a duty, a breach of the duty, and an injury proximately resulting from the breach of duty. Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77 (1984). In order to defeat a summary judgment motion on a negligence claim, the nonmoving party must point to record evidence that would permit reasonable minds to find each of the elements. Williams v. Portage Country Club Co., 9th Dist. Summit No. 28445, 2017-Ohio-8986, ¶ 13, citing Thewlis v. Munyon, 9th Dist. Medina No. 2262-M, 1994 WL 57787, *2 (Feb. 16, 1994). Failure to meet the evidentiary burden on any of the elements will entitle the moving party to judgment as a matter of law. Id. To the extent both parties have argued alleged factual disputes regarding the harassment of each other and Ms. Lloyd's history of filing lawsuits, such facts are irrelevant and unnecessary to the claim of negligence and will not be addressed. See Elbert, 143 Ohio App.3d at 532, citing Orndorff, 115 Ohio App.3d at 635, citing Anderson, 477 U.S. at 248.

         Duty

         {¶19} A fundamental aspect of establishing negligence is determining whether the defendant owed the plaintiff a duty. Jeffers v. Olexo, 43 Ohio St.3d 140, 142 (1989). In a negligence claim, the existence of a duty "depends upon the relationship between the parties and the foreseeability of injury[.]" Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 645 (1992). Thus, "[o]nly when the injured person comes within the circle of those to whom injury may reasonably be anticipated does the defendant owe him a duty of care." Gedeon v. East Ohio Gas Co., 128 Ohio St. 335, 338 (1934).

         {¶20} Whether a duty exists is a question of law. Mussivand v. David, 45 Ohio St.3d 314, 318 (1989). However, there is no expressed formula for determining whether a duty exists. Id. Typically, a duty may be established by common law, legislative enactment, or by the particular facts and circumstances of the case. Eisenhuth v. Moneyhon, 161 Ohio St. 367 (1954), paragraph one of the syllabus. When deciding whether the particular circumstances warrant the imposition of a duty, courts consider "'the guidance of history, our continually refined concepts of morals and justice, the convenience of the rule, and social judgments as to where the loss should fall.'" Mussivand at 319, quoting Weirum v. RKO Gen., Inc., 15 Cal.3d 40, 46 (1975).

         {¶21} Mr. Rogerson argued that Ms. Lloyd failed to establish a duty to not smoke around her. Mr. Rogerson pointed out that there are neither laws, nor social or moral codes prohibiting him from smoking. Ms. Lloyd argued the existence of a duty based upon common law and the facts and circumstance of the case, namely that Mr. Rogerson, as a tenant residing in a smoke-free apartment complex, owed Ms. Lloyd, who had a heart problem which was ...


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