McCarthy v. Family Dollar Stores of Ohio, Inc.

[Cite as McCarthy v. Family Dollar Stores of Ohio, Inc., 2018-Ohio-598.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
MARY MCCARTHY, ET AL. JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiffs-Appellants Hon. William B. Hoffman, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 2017CA00149
FAMILY DOLLAR STORES OF OHIO,
INC., ET AL.
OPINION
Defendants-Appellees
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2016CV02213
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: February 12, 2018
APPEARANCES:
For Plaintiffs-Appellants For Defendants-Appellees
BRIAN L. ZIMMERMAN CHRISTOPHER E COTTER
B. Zimmerman Law SAMUEL N. DODOO
229 Third St. N.W., Suite 200 Roetzel & Andress, LPA
Canton, Ohio 44702 222 South Main Street
Akron, Ohio 44308
Stark County, Case No. 2017CA00149 2
Hoffman, J.
{¶1} 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.
(“Family Dollar”).
STATEMENT OF THE FACTS AND CASE
{¶2} 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.
{¶3} 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.
{¶4} 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
Stark County, Case No. 2017CA00149 3
DiFlour, the store manager, who admitted another customer had walked into the same
window that same day, but prior to McCarthy’s accident.
{¶5} 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.
{¶6} 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.
{¶7} 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.
{¶8} 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.
SUMMARY JUDGMENT STANDARD OF REVIEW
{¶9} 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
Stark County, Case No. 2017CA00149 4
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).
{¶10} 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 (1977).
{¶11} 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
Stark County, Case No. 2017CA00149 5
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).
{¶12} 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).
{¶13} 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 (4th Dist.1991).
{¶14} 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. Cornell's IGA Foodliner Inc., 5th Dist. No. 12CA100, 2013–Ohio–
2506, ¶ 20 citing Gladon, supra at 315, 662 N.E.2d 287.
Stark County, Case No. 2017CA00149 6
{¶15} The business owner is not an insurer of the customer's safety, but the
business owner does owe the business invitee a duty of ordinary care to maintain the
premises in a reasonably safe condition and to warn of hidden dangers. However, a
business owner owes no duty to protect an invitee from dangers that are known to the
invitee or are so obvious and apparent to the invitee he or she may be reasonably
expected to discover them and protect him or her against them. Sidle v. Humphrey, 13
Ohio St. 2d 45, 48, 233 N.E.2d 589 (1968). In other words, a premises owner owes no
duty to persons entering the premises regarding dangers which are open and obvious.
Armstrong v. Best Buy Company, Inc., 99 Ohio St. 3d 79, 2003–Ohio–2573, 788 N.E.2d
1088, paragraph 5 of the syllabus (Citation omitted.) The rationale of the open and
obvious doctrine is that the open and obvious nature of the hazard itself serves as a
warning, so that owners reasonably may expect their invitees to discover the hazard and
take appropriate measures to protect themselves against it. Simmers v. Bentley Constr.
Co., 64 Ohio St. 3d 642, 644, 597 N.E.2d 504 (1992).
{¶16} In its July 31, 2017 Judgment Entry, granting summary judgment in favor of
Family Dollar, the trial court found the window was open and obvious; therefore, Family
Dollar did not owe a duty to McCarthy. We disagree as we find reasonable minds could
come to different conclusions as to whether the window was an open and obvious danger.
Our reasons follow.
{¶17} During her deposition, McCarthy testified:
Q. Now, let’s talk about what you recall about that window that day
that’s similar or different from what we see here in Exhibit 3. * * *
Stark County, Case No. 2017CA00149 7
A. Okay. For one thing, to begin with, I notice that this mat, that floor
mat was not there.
Q. You are referring to a black mat in front of the out door?
A. Black mat. Yes, that was facing toward the window. Because I
was walking that mat, and it was – I thought I was heading toward the door,
that the door was out, because I was following the direction of the mat was
going in. And it – instead of going toward the door, it was going toward the
window.
***
Q. Let me ask you this: After you check out, and you have your purse
and you have your plates, and as you are walking towards the exit, did there
come a time when you looked toward the exit?
A. I did look, and it just looked – everything was so clear and bright
that I assumed I was headed to toward the door.
Q. Okay. As you walk into the window, where were you looking at
that moment?
A. Actually, when I hit the window, the first thing I tried to think of was
how to catch myself, because I knew I was going to fall backward. There
was nothing around me that I could grab onto, and I just went down.
***
I mean, there weren’t any – any signs or anything on that window
whatsoever. Nothing. It was just – it was just very clear, and I assumed that
Stark County, Case No. 2017CA00149 8
that – walking the way I walked on the mat toward the – what I thought was
the door.
Q. Were you looking at the mat as you were walking toward the exit?
A. I saw – I saw the mat that I was walking on. I started following it.
And then I looked up.
Q. Okay. So you recall looking up right before you struck the
window?
A. Well, actually, I guess it was too late when I looked up, because I
hit it right away.
***
No. But it – I thought they had the door open. It looked like the door
was open. And that’s why I thought, according to the way I was walking, I
assumed I was going that direction. But then when I followed the mat, it led
me to the window.
Q. It sounds like what you are saying is you thought the window was
an opening?
***
A. Yes, because it was so clear and so bright that you couldn’t – it
was like they had just put a new window and scrubbed it up and it didn’t –
you know, it just looked like an open area.
Deposition of Mary McCarthy at 16-17, 20-21, 23-24.
Stark County, Case No. 2017CA00149 9
{¶18} In addition, Appellant Paul McCarthy testified he went to Family Dollar with
Earl Eckert 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 accident. In his deposition, Appellant Paul
McCarthy recalled:
Q. You did come to the Family Dollar later – later that day, I think?
A. Yes.
Q. Yes. Okay. What was the reason for coming to the store later that
day?
A. To pick up the car that Mary had left there.
Q. Did you go inside the store?
A. Yes.
Q. Did you speak with anyone?
A. I asked for the manager, and the girl raised her hand and said she
was the manager.
***
Q. What did you say to her?
A. I just asked her if, you know, the – my wife had been in here and
had an accident. And she remembered her being there. She told me that
someone prior to Mary running into the window, also it had happened. After
Mary had run into it, she put something on the window.
Q. Did you see something on the window?
Stark County, Case No. 2017CA00149 10
A. When I came in, yeah.
***
Q. And the manager told you something about a prior incident?
A. Yes, someone had run into the window prior to Mary, and then
after Mary ran into it and, obviously, had her problem, she said she put
something up on the window.
Q. Did she tell you if that – for that prior incident, did she tell you
anything more about it?
A. No.
Q. Did she say if it was that same day?
A. Yeah, right.
Q. She said it was earlier in the day?
A. I don’t know if she said earlier in the day. It sounded like right
before Mary. So it sounded like it was pretty recent.
Q. Do you know if it was the same day or not?
A. Yeah, she said it was the same day. That’s why she put up a sign
after Mary had fallen, yes.
Deposition of Paul McCarthy at 8-11.
{¶19} The trial court noted several facts which supported its decision the window
was an open and obvious danger. First, the exit door, which was located next to the
window, was labeled, “OUT”, and was equipped with both vertical and horizontal
handlebars which could be used to push open the door to exit the store. Next, the exit
Stark County, Case No. 2017CA00149 11
door and the window were observable to a reasonable person. Further, the exit door was
not blocked on the date of the incident. Lastly, McCarthy had used the exit door on
several previous occasions as she was a frequent customer of this particular store. The
trial court added McCarthy testified she recalled seeing the “IN” and “OUT” stickers on
the doors when she entered the store, and admitted she did not pay attention to the
stickers when she exited the store.
{¶20} While these facts standing alone support the trial court’s finding the window
was an open and obvious danger, we find Appellants presented reciprocal evidence
which raises a genuine issue of material fact, and we find reasonable minds could come
to differing conclusions as to whether the window was and open and obvious danger.
{¶21} As McCarthy exited the store after making her purchase, she traversed
along a black mat which she believed led to the exit door. McCarthy testified it was a
“bright and clear day” and thought she was walking towards an open area. The window
lacked any signage distinguishing it from the entrance and exit doors. We find these facts
coupled with a prior incident which occurred on the same day and involved a customer
walking into the same window create a genuine issue of material fact as to whether the
hazard was open and obvious.
{¶22} Appellants’ sole assignment of error is sustained.
Stark County, Case No. 2017CA00149 12
{¶23} The judgment of the Stark County Court of Common Pleas is reversed and
the matter remanded for further proceedings consistent with this Opinion and the law.
By: Hoffman, J.
Gwin, P.J. and
Wise, Earle, J. concur