FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
WAYNE, OHIO CASE No. 2016 CVC-H 000321
LLOYD, pro se, Appellant.
TERRENCE J. KENNEALLY and SEAN M. KENNEALLY, Attorneys at
Law, for Appellee.
DECISION AND JOURNAL ENTRY
S. Callahan, Judge.
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.
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.
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.
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.
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
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
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.
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.
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.
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.
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. * * *
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
OF ERROR NO. 9
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY STATING [MS]
LLOYD DID NOT PRESENT ENOUGH EVIDENCE TO ESTABLISH
NEGLIGENCE * * *
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
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.
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).
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).
"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.
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
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. As explained in the analysis below,
relying solely upon all of the non-challenged evidence,
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
Additionally, this Court will not consider Ms. Lloyd's
videos that she references in her appellate brief.
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.
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.
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).
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).
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 ...