A-M.R. v. Columbus City School Dist.

[Cite as A-M.R. v. Columbus City School Dist., 2015-Ohio-3781.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

[A-M.R.], :

Plaintiff-Appellant, :
No. 14AP-1066
v. : (C.P.C. No. 13CV-3491)

Columbus City School District et al., : (REGULAR CALENDAR)

Defendants-Appellees. :

D E C I S I O N

Rendered on September 17, 2015

Blumenstiel, Evans, Falvo & Blumenstiel, LLC, and Braden A.
Blumenstiel, for appellant.

Michael M. Heimlich, for appellee Columbus City School
District.

APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.

{¶ 1} Plaintiff-appellant, A-M.R., on behalf of her minor child, O.R., appeals from
a final judgment of the Franklin County Court of Common Pleas that granted summary
judgment to defendant-appellee Columbus City School District ("District") on her claim
for tortious injury sustained by O.R. We conclude that the trial court erred in finding that
the District had immunity to O.R.'s tort lawsuit without considering the evidence placed
before it. We sustain Robinson's second assignment of error and do not consider her first
assignment of error because sustaining the second assignment of error renders the first
moot. The judgment of the trial court is reversed and the case is remanded.
No. 14AP-1066 2

I. FACTS AND PROCEDURAL HISTORY
{¶ 2} In 2008, students of Columbus Public Schools occupying Old Shady Lane
Elementary School, located on the east side of Columbus, vacated the building in favor of
a newly completed elementary school. In 2010, the Old Shady Lane building reopened
and was used as a temporary or "swing" space for elementary school students.
{¶ 3} On May 16, 2012, O.R. was a fifth-grade student assigned to the Old Shady
Lane building. The old building did not have air conditioning so windows in the building
were open. O.R. asked the teacher if she might be excused so she could refill her water
bottle. Another student had preceded O.R. out of the classroom to use the facilities and
had left the classroom door open as he exited the room. The door to the classroom
opened outward into the hallway. As O.R. stepped into the door's threshold, a gust of
wind caught the door and slammed it violently on her. O.R. reflexively raised her hand in
front of her face to avoid being struck by the door. The door hit her upraised hand, and
when this occurred a large pane of glass set in the top half of the door shattered. The
breaking glass sliced her wrist, causing damage to tendons and embedding fragments of
glass in her wounds.
{¶ 4} Despite emergency treatment and many stitches, the accident has left the
area on O.R.'s wrist scarred and sensitive so that she cannot comfortably wear items on
that wrist. She has undergone physical and occupational therapy to restore flexibility and
strength to her wrist. She also experiences difficulty writing and suffers from intermittent
numbness.
{¶ 5} Records reflect that the pane of glass in the door had been replaced in
March 2010. The glass was discarded after being broken from the incident involving O.R.
However, in response to a question posed by the attorney for the District in a deposition,
O.R. testified as follows:
Q. This was just an ordinary glass pane in a door, right?

A. Yes.

(O.R. Depo. 22.) The attorney for the District elicited this testimony, did not object to it
when it was elicited, did not object when it was filed in the summary judgment record,
and also stated in its reply in support of summary judgment, "[t]he glass in the door at the
time of [O.R.'s] accident is believed to be ordinary window glass and not safety glass."
No. 14AP-1066 3

(Reply Memorandum, 2-3.) In addition, the testimonies of O.R., O.R.'s mother, and the
pictures of O.R.'s scars all provided evidence that the glass shattered and cut O.R. quite
severely.
{¶ 6} On March 28, 2013, A-M.R. sued the District and several John Does (who
were never identified) for damages concerning the incident. After discovery, on
September 25, 2014, the District moved for summary judgment arguing that A-M.R. had
no way of proving negligence by an employee. A-M.R. responded in opposition to the
dispositive motion and attached several evidentiary exhibits to her response. Among
those attachments was a deposition excerpt including the testimony of O.R. about how the
glass broke and the fact that it was ordinary window glass. The District criticized some of
A-M.R.'s photographs of the door as not accurately depicting the door at the time of the
accident and noted that some of the statements made by O.R. and A-M.R. in deposition
were hearsay as to what employees of the school told them. The District did not object to
O.R.'s testimony regarding the accident or the type of glass in the window. In fact, as
mentioned previously, in its reply in support of summary judgment, the District wrote:
"The glass in the door at the time of [O.R.'s] accident is believed to be ordinary window
glass and not safety glass." (Reply Memorandum, 2-3.)
{¶ 7} On December 2, 2014, the trial court found that there was an issue of fact to
prevent a ruling that no employee of the District was negligent. However, the trial court
nonetheless granted summary judgment to the District on the ground that "there [wa]s
absolutely no evidence before the Court to show that the pane of glass was actually
defective." (Decision and Entry, 6.1) The only materials mentioned or cited by the trial
court as forming the basis of its factual recitation were the allegations in the complaint.
{¶ 8} A-M.R. now appeals.
II. ASSIGNMENTS OF ERROR
{¶ 9} A-M.R. advances two assignments of error for our review:
[I.] The trial court erred when it granted appellee's motion for
summary judgment based on an argument not asserted by
appellee in the motion for summary judgment itself.

[II.] In the event the trial court was permitted to base its
decision on an argument not asserted by appellee in the

1 The trial court's dismissal was also expressly made effective as to the John Doe defendants.
No. 14AP-1066 4

motion for summary judgment, the trial court erred when it
determined there was no defect associated with the
windowpane and the swinging door when appellant identified
it as "ordinary glass" and appellee admitted it was "ordinary
glass" (which violated the Ohio Building Code), there was a
complete lack of inspection of the door or glass window, and
there was no mechanical device attached to the door which
could have slowed the rate of speed of the door as it swung
closed on Appellant.

Because it is dispositive, we consider the second assignment of error first.
III. DISCUSSION
Summary judgment shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written
stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.

Civ.R. 56(C). In deciding whether this standard is met, the trial court must give the non-
moving party "the benefit of all favorable inferences when evidence is reviewed for the
existence of genuine issues of material facts." Byrd v. Smith, 110 Ohio St.3d 24, 2006-
Ohio-3455, ¶ 25.
{¶ 10} When reviewing a trial court's decision on summary judgment, our review is
de novo. Westfield Ins. Co. v. Hunter, 128 Ohio St.3d 540, 2011-Ohio-1818, ¶ 12.
A. Second Assignment of Error - Whether the Trial Court Correctly
Concluded that the District was Entitled to Immunity Because no
Evidence of a Defect was Presented

The Ohio Supreme Court has set forth a three-tiered analysis
for determining whether a political subdivision is immune
from civil liability. Cater v. Cleveland, 83 Ohio St.3d 24, 28
(1998). Under the first tier, a political subdivision is granted
broad immunity for any injury arising out of its governmental
or proprietary functions. R.C. 2744.02(A)(1). "The immunity
afforded to the political subdivision, however, is not absolute
but instead is subject to five exceptions under R.C.
2744.02(B)." Golden [v. Milford Exempted Village School Bd.
of Edn., 12th Dist. No. CA2008-10-097, 2009-Ohio-3418],
¶ 10. Thus, the second tier of the analysis focuses on the
exceptions to immunity set forth in R.C. 2744.02(B)(1)-(5). Id.
"Finally, in the third tier of the analysis, if an exception exists,
immunity can be reinstated if the political subdivision can
No. 14AP-1066 5

successfully argue that one of the defenses set forth in R.C.
2744.03(A) applies." Id., citing Cater at 28. However, the
defenses found in R.C. 2744.03 "do not come into play until
after it is proven that a specific exception to general immunity
applies under R.C. 2744.02(B)." Id. at 12.

J.H. v. Hamilton City School, Dist., 12th Dist. No. CA2012-11-236, 2013-Ohio-2967, ¶ 9.
{¶ 11} In this case, the parties agreed that the District was presumptively granted
immunity under R.C. 2744.02(A)(1) as a political subdivision. The dispute therefore
centered on the second tier of the analysis, whether the exceptions to immunity applied to
deprive the District of immunity in this particular case. Specifically, A-M.R. argued that
the District was deprived of immunity by operation of R.C. 2744.02 which provides, in
relevant part:
(B) [A] political subdivision is liable in damages in a civil
action for injury * * * allegedly caused by an act or omission of
the political subdivision or of any of its employees in
connection with a governmental or proprietary function, as
follows:

***

(4) [P]olitical subdivisions are liable for injury * * * that is
caused by the negligence of their employees and that occurs
within or on the grounds of, and is due to physical defects
within or on the grounds of, buildings that are used in
connection with the performance of a governmental function
* * *.

{¶ 12} Though the parties' arguments mainly concerned whether there was
evidence of negligence by school employees, the trial court's decision ultimately centered
on whether there was a genuine question as to the presence of "physical defects within or
on the grounds of, buildings that are used in connection with the performance of a
governmental function." R.C. 2744.02(B)(4).
{¶ 13} Ohio Adm.Code 4101:1 contains the Ohio Building Code. Ohio Adm.Code
4101:1-24 addresses "glass and glazing." Section 2401.2 of Ohio Adm.Code 4101:1-24
requires that replacement glass conform to the specifications required for new
No. 14AP-1066 6

installations.2 Ohio Adm.Code Section 2406.4 requires that safety glazed glass be used in
"hazardous locations" and specifically lists "swinging doors" with glass in them as such a
hazard.3 Here, the undisputed evidence was that the glass that cut and injured O.R. was
installed in a swinging door, having last been replaced by the District in March 2010.
{¶ 14} A violation of a building code is not negligence per se, nor does it raise an
irrebuttable presumption of negligence, but it may constitute strong evidence of
negligence or a dangerous condition. Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120,
2009-Ohio-2495, ¶ 21; Chambers v. St. Mary's School, 82 Ohio St.3d 563 (1998),
syllabus; Dunaway v. Sidney, Shelby C.P. No. 11CV000147 (Nov. 28, 2011) (holding that
facts that would allow a jury to conclude that a political subdivision violated the Ohio
Building Code create a genuine issue of fact sufficient to defeat immunity under R.C.
2744.02(B)(4) and preclude summary judgment). Thus, the key question was whether A-
M.R. had raised a genuine factual question as to the type of glass installed in the door that
struck O.R.
{¶ 15} The trial court analyzed the issue as follows:
After reviewing the arguments of the parties, the Court is
inclined to rule in Defendant's favor, but not for the reasons
that the parties would initially think. Both Plaintiff and
Defendant spend a great deal of time arguing in their briefs as
to the issue of whether an employee of Defendant was
negligent in relation to [O.R.'s] injury. In regards to this issue,
the Court finds that there is an issue of fact that would prevent
the Court from ruling that no employee of Defendant was
negligent. The problem with Plaintiff's claim, however, is that
there is no proof * * * that [O.R.'s] injury resulted from a
defect in the property.

This decision is based upon the fact that Plaintiff has
presented no evidence that the pane of glass in question was
defective. In her Memorandum Contra, Plaintiff argues that
the Ohio Building Code requires that safety glass be installed
in doors such as the one involved in this case. Plaintiff argues
that after the accident, Defendant disposed of the glass from

2 The version of Section 2401.2 of Ohio Adm.Code Chapter 4101:1-24 that was active when the window was
replaced in 2010 was identical to the current version.

3 Ohio Adm.Code Chapter 4101:1-24 contained the same language regarding hazardous locations in 2010
when the window was replaced and in 2012 when the incident occurred, except in 2010 the requirement was
contained in Section 2406.3 rather than 2406.4.
No. 14AP-1066 7

the shattered pane of glass. Plaintiff then goes on to argue that
while she does not know what type of glass was in the door on
the date of [O.R.'s] accident, due to spoliation of evidence, i.e.
the disposing of the glass, the Court must infer that the glass
was not safety glass and hence, defective.

(Decision and Entry, 5.) The trial court analyzed spoliation and concluded that it could
not make an inference that the glass was defective based on spoliation. Then, the court
concluded, "there is absolutely no evidence before the Court to show that the pane of glass
was actually defective." (Decision & Entry, 6.)
Civ.R. 56(C) places a mandatory duty on a trial court to
thoroughly examine all appropriate materials filed by the
parties before ruling on a motion for summary judgment. The
failure of a trial court to comply with this requirement
constitutes reversible error.

Murphy v. Reynoldsburg, 65 Ohio St.3d 356 (1992), paragraph one of the syllabus. More
explicitly, when "a court has failed to consider a deposition properly before it in rendering
summary judgment it commits error which is, per se, prejudicial and renders the
judgment erroneous as a matter of law." Kramer v. Brookwood Retirement Community,
1st Dist. No. C-920182 (Aug. 4, 1993). The trial court's decision provides no indication
that the trial court examined O.R.'s deposition testimony or any of the materials attached
to A-M.R.'s memorandum in opposition to summary judgment. The only materials cited
by the trial court as sources for facts or evidence offered by plaintiff/appellant in
opposition to summary judgment are the allegations in the complaint.
{¶ 16} While a trial court is permitted to exclude materials from consideration in
summary judgment, it must do so pursuant to Civ.R. 56(E). This rule provides, in
relevant part, that "[s]upporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated in the affidavit."
This court has stated:
When ruling upon a motion for summary judgment, a trial
court only considers admissible evidence. Tokles & Son, Inc.
v. Midwestern Indemn. Co. (1992), 65 Ohio St.3d 621, 631, fn.
4 ("Only facts which would be admissible in evidence can be
* * * relied upon by the trial court when ruling upon a motion
for summary judgment"); Nationwide Life Ins. Co. v.
No. 14AP-1066 8

Kallberg, Lorain App. No. 06CA008968, 2007-Ohio-2041, at
¶ 20; Molnar v. Klammer, Lake App. No. 2004 L 072 CA,
2005-Ohio-6905, at ¶ 65; Brady-Fray v. Toledo Edison Co.,
Lucas App. No. L-02-1260, 2003-Ohio-3422, at ¶ 30.

Guernsey Bank v. Milano Sports Ents., L.L.C., 177 Ohio App.3d 314, 2008-Ohio-2420,
¶ 59 (10th Dist.); see also Cunningham v. Children's Hosp., 10th Dist. No. 05AP-69,
2005-Ohio-4284, ¶ 18 ("A trial court does not abuse its discretion in disregarding an
expert's affidavit that does not set forth the information required to qualify the affiant to
give expert testimony."). However, this court has repeatedly held that " '[i]f a party does
not object in the trial court to the introduction of evidence submitted in support of, or in
opposition to, a motion for summary judgment, that party waives any error and, thus,
cannot raise such error on appeal.' " Bradley v. Ohio Dept. of Transp., 10th Dist. No.
13AP-918, 2014-Ohio-3205, ¶ 21, quoting Timberlake v. Jennings, 10th Dist. No. 04AP-
462, 2005-Ohio-2634, ¶ 14; see also Churchwell v. Red Roof Inns, Inc., 10th Dist. No.
97APE08-1125 (Mar. 24, 1998) ("Failure to move to strike or otherwise object to
documentary evidence submitted by a party in support of, or in opposition to, a motion
for summary judgment, waives any error in considering that evidence under Civ.R.
56(C).").
{¶ 17} O.R.'s testimony on the topic of the glass type (safety versus ordinary glass)
was actually elicited by defendant's counsel. The attorney for defendant asked O.R. in the
deposition, "[t]his was just an ordinary glass pane in a door, right?" O.R. responded,
"Yes." (O.R. Depo, 22.) The defense attorney did not object to his own question or O.R.'s
competence at the time when he asked the question nor did he move to strike the answer.
When responding to defendant's motion for summary judgment, plaintiff attached
excerpts of O.R.'s deposition testimony, including the exchange just quoted. Once again,
defendant did not object or move to strike. Defendant criticized plaintiff's photographs of
the door as not accurately depicting the door at the time of the accident and noted the
impropriety of hearsay statements made by O.R. and O.R.'s mother about what employees
of the school told them. But, as to O.R.'s testimony about the glass, defendant said
nothing. In fact, far from seeking to exclude the deposition testimony about the glass, in
its reply in support of summary judgment, defendant said, "[t]he glass in the door at the
time of [O.R.]'s accident is believed to be ordinary window glass and not safety glass."
No. 14AP-1066 9

(Reply Memorandum, 2-3.) The trial court engaged in no evidentiary analysis and stated
no reasons for failing to consider O.R.'s testimony or any of A-M.R.'s other submissions.
Rather, the trial court only referred to allegations in the complaint for its recitation of
facts and then simply stated that "there is absolutely no evidence before the Court to show
that the pane of glass was actually defective." (Decision and Entry, 6.)
{¶ 18} This court has held that a trial court, even in the absence of objections, has
discretion whether to consider evidence of types not specifically addressed in Civ.R.
56(C). Open Container, Ltd. v. CB Richard Ellis, Inc., 10th Dist. No. 14AP-133, 2015-
Ohio-85, ¶ 11. However, depositions are specifically included among the permitted
evidence types in Rule 56(C). See Civ.R. 56(C) (listing valid summary judgment record
materials as "pleadings, depositions, answers to interrogatories, written admissions,
affidavits, transcripts of evidence, and written stipulations of fact"). Although in this case
only excerpts of depositions (rather than full transcripts) were filed with the trial court,
Civ.R. 32(A)(4) permits the introduction of an excerpt unless the other party objects, in
which case all parts of the deposition relevant to the excerpt must also be introduced.
Here, as already mentioned, defendant offered no objection to the introduction of the
excerpts.
{¶ 19} We find that the trial court failed, without explanation, to consider the
materials submitted by A-M.R., including O.R.'s testimony about the type of glass that
wounded her. Accordingly, the trial court erred when it determined that there was no
evidence of a defect without considering the evidence before it or providing a valid
justification for failing to consider that evidence.
{¶ 20} A-M.R.'s second assignment of error is sustained.
B. First Assignment of Error - Whether the Trial Court Erred in
Deciding Summary Judgment on an Argument not Raised by the
Defendant

{¶ 21} A-M.R. argues that the trial court decided summary judgment on a ground
that was never raised by the parties. Because we have sustained an error requiring
reversal with respect to A-M.R.'s second assignment of error, the first is now moot. Thus,
we consider it no further.
No. 14AP-1066 10

IV. CONCLUSION
{¶ 22} Accordingly, we sustain A-M.R.'s second assignment of error and render her
first assignment of error moot. The trial court in its decision evinced no information that
it had considered A-M.R.'s evidentiary submissions. Nor did it provide in its decision an
explanation for failing to consider them. We therefore reverse and remand the trial
court's decision on summary judgment to the Franklin County Court of Common Pleas for
proceedings consistent with this decision.
Judgment reversed and
cause remanded.

DORRIAN, J., concurs in judgment only.
SADLER, J., dissents.

DORRIAN, J., concurring in judgment only.

{¶ 23} On the facts of this case, and in judgment only, I concur.
{¶ 24} In its analysis of the facts, the trial court only referred to allegations in the
complaint. Furthermore, there is no indication or explanation for rejecting the materials
submitted by appellant in response to appellee’s motion for summary judgment.
Therefore, I agree that it appears that the trial court did not consider appellant’s
materials.
{¶ 25} With this in mind, as well as appellee’s lack of objections, I agree to remand
this case and to direct the trial court to consider appellant’s materials. On remand, the
trial court, in its discretion, may determine whether to accept or reject the same.
{¶ 26} Therefore, I would sustain appellant’s second assignment of error to the
extent outlined in this concurrence in judgment only.

SADLER, J., dissenting.
{¶ 27} Because I disagree with the majority's disposition of the second assignment
of error and because I believe that the trial court did not err in granting summary
judgment to appellee ("district"), I would affirm the judgment of the trial court. Because
the majority does not, I respectfully dissent.
No. 14AP-1066 11

Appellant's First Assignment of Error
{¶ 28} Due to my view of this case, I must address the first assignment of error. In
her first assignment of error, appellant contends that the trial court erred when it granted
summary judgment on the basis of an argument that was not raised in the district's
motion. Citing Mitseff v. Wheeler, 38 Ohio St.3d 112 (1988), appellant claims that the
trial court denied her a meaningful opportunity to oppose the district's motion for
summary judgment when it ruled that she did not present evidence "that the pane of glass
was not safety glass and therefore, defective." (Dec. 2, 2014 Decision, 6.) I disagree.
{¶ 29} In Mitseff, decedent's estate brought a wrongful death action against a
social host who allegedly provided alcohol to a minor. The minor subsequently drove his
vehicle into another vehicle, killing decedent. The trial court granted summary judgment
in favor of the social host. In the appeal from the trial court judgment, the social host
argued, for the first time, that there was no evidence the minor was negligent. The court
of appeals adopted the new argument in affirming the trial court judgment. The Supreme
Court of Ohio noted that the arguments made by the social host in the motion for
summary judgment were confined to its duty to the victim and whether its conduct
proximately caused the victim's death. In reversing the court of appeals, the Mitseff court
held that the court of appeals erred when it affirmed the trial court judgment on grounds
that were not argued in the motion for summary judgment. The Supreme Court reasoned
that requiring the moving party to be specific as to the grounds upon which it seeks
summary judgment provides the nonmoving party with "the information needed to
formulate an appropriate response as required by Civ.R. 56(E)." Id. at 115.
{¶ 30} In this case, there is no dispute that the specific defense asserted by the
district's motion for summary judgment was its immunity under R.C. 2744.02(B)(4).
That section states:
[P]olitical subdivisions are liable for injury * * * to person or
property that is caused by the negligence of their employees
and that occurs within or on the grounds of, and is due to
physical defects within or on the grounds of, buildings that
are used in connection with the performance of a
governmental function.

(Emphasis added.)
No. 14AP-1066 12

{¶ 31} The primary argument made by the district in its motion for summary
judgment was that appellant "has no evidence to support the conclusion, that any
negligent act by any employee of the Columbus City Schools caused the door to shut or
caused [O.R.] to be injured." (Emphasis added.) (Oct. 1, 2014 Motion for Summary
Judgment, 3.) In addressing the district's primary argument in its memorandum in
opposition, appellant argued that the district "negligently failed to inspect, maintain,
and/or repair the door and glass window involved in [O.R.'s] accident in violation of ORC
§ 2744.02(B)(4)." (Emphasis added.) (Nov. 4, 2014 Memorandum Contra, 6.) As legal
support for her argument, appellant cited Talcott v. Sheffield-Sheffield Lake Bd. of Edn.,
8th Dist. No. 51372 (Nov. 20, 1986), wherein the appellate court upheld a damage award
against a local board of education for injuries to a student that were caused by a plate
glass door panel that should have contained safety glass.
{¶ 32} Appellant cites the provisions in the Ohio Building Code which require the
use of safety glazed glass in swinging doors, and she produced evidence that the district
replaced the glass pane in March 2010. Appellant attached several pages from O.R.'s
deposition transcript and photographs of her injury in order to provide some evidentiary
support for her claim that ordinary plate glass caused O.R.'s injuries.
{¶ 33} The facts herein differ from the facts in Mitseff. Though the district's
summary judgment motion focuses primarily on an alleged defect in the closing
mechanism of the door, the motion raises the defense of statutory immunity under R.C.
2744.02(B)(4) and argues that appellant produced no evidence to support the conclusion
that any negligent act by the district's employees caused O.R.'s injury. Appellant argued
in opposition to the summary judgment motion that, in 2010, the district should have
replaced the glass pane with safety glazed glass. She also submitted evidentiary materials
that she believed would support that argument.4 Thus, the record shows that appellant
was not deprived of the opportunity to raise the argument that ordinary glass caused
O.R.'s injury. Consequently, I do not believe that appellant was unfairly prejudiced when

4 Although appellant now complains that the district failed to answer interrogatories and document requests

that could have led to the discovery of admissible evidence of a defect, appellant did not move the trial court
to compel discovery or request a continuance of the hearing on the district's motion for summary judgment
so that such evidence could be obtained. Civ.R. 39 and 56(F).
No. 14AP-1066 13

the trial court granted summary judgment to the district on a basis that appellant
produced no evidence that the glass was defective.
{¶ 34} The Twelfth District Court of Appeals reached a similar conclusion in
Hunter v. Wal-Mart Stores, Inc., 12th Dist. No. CA2001-10-035, 2002-Ohio-2604. In
Hunter, the court upheld summary judgment in favor of a department store in a
negligence action brought by a store patron who slipped and fell on a gooey substance on
the floor. The court determined that the store's failure to specifically address its lack of
constructive notice in its summary judgment motion did not preclude the trial court from
granting the motion on that basis. Id. at ¶ 13. Because the patron had specifically
addressed the question whether the store had constructive notice in her memorandum in
response to motion for summary judgment, the court reasoned that the trial court ruling
had not deprived the patron of a meaningful opportunity to address the issue. Id. In so
holding, the court stated that "[t]his case differs from Mitseff." Id.
{¶ 35} Because this case is also distinguishable from Mitseff, I would overrule
appellant's first assignment of error.
Appellant's Second Assignment of Error
{¶ 36} In her second assignment of error, appellant argues that the trial court erred
when it granted summary judgment in favor of the district because of appellant's failure to
present evidence of a defect on the premises. The majority finds that the trial court
committed reversible error by disregarding O.R.'s deposition testimony in reaching its
conclusion that "there [was] absolutely no evidence before the Court to show that the
pane of glass was actually defective." (Dec. 2, 2014 Decision, 6.) Because I believe that
the trial court did not abuse its discretion when it disregarded excerpts from a deposition
that was not properly filed in the trial court, I would overrule appellant's second
assignment of error.
{¶ 37} In Hayes v. Columbus, 10th Dist. No. 13AP-695, 2014-Ohio-2076, this court
discussed the propriety of a trial court's decision to consider unfiled deposition excerpts
offered in opposition to a motion for summary judgment. We set forth the general rule
regarding consideration of such depositions as follows:
Generally, before a deposition may be considered as
acceptable evidence under Civ.R. 56(C), the following three
requirements must be satisfied: (1) the transcript must be
No. 14AP-1066 14

filed with the court or otherwise authenticated; (2) the
deponent must sign the deposition or waive signature; and
(3) there must be court reporter certification. Bank of New
York Mellon Trust Co. v. Unger, 8th Dist. No. 97315, 2012-
Ohio-1950, ¶ 43, citing Civ.R. 30(E) and (F). Although
plaintiffs did not file the transcript of the depositions with the
court, or otherwise authenticate the excerpts of the deposition
which were attached to their memorandum contra, because
[defendant] did not object to the improperly submitted
deposition excerpts, the trial court properly exercised its
discretion to consider those deposition excerpts when ruling
on the motion for summary judgment. See Christie v. GMS
Mgt. Co., 124 Ohio App.3d 84, 90, 705 N.E.2d 691 (9th
Dist.1997), citing Skidmore & Assoc. Co. v. Southerland, 89
Ohio App.3d 177, 179, 623 N.E.2d 1259 (9th Dist.1993).

Id. at ¶ 37.
{¶ 38} Hayes stands for the proposition that a trial court has the discretion to
consider evidentiary materials outside of Civ.R. 56(C) where the opposing party does not
object. See also Al-Najjar v. R & S Imports, Inc., 10th Dist. No. 99AP-1391 (Aug. 29,
2000), fn. 1. By the same token, a trial court is not required to consider an uncertified
deposition in ruling on a motion for summary judgment simply because the opposing
party does not object. Bell v. Holden Surveying, Inc., 7th Dist. No. 01 AP 0766, 2002-
Ohio-5018, ¶ 20, citing Trimble-Weber v. Weber, 119 Ohio App.3d 402, 407 (11th
Dist.1997). The Court of Appeals in Bell held as follows:
[I]t is within the trial court's discretion to consider
nonconforming evidence when there is no objection. * * *
Therefore, a trial court is permitted to sua sponte determine
that the documentation attached to the summary judgment is
not in conformity with the requirements of Civ.R. 56(C).
When a trial court determines that it will not consider
nonconforming evidence, that decision is not an error unless
the trial court acted in an unreasonable, unconscionable, or
arbitrary manner.

(Emphasis added.) Id. at ¶ 22.
{¶ 39} Following the logic in Bell, the Third District Court of Appeals in Armaly v.
Wapakoneta, 3d Dist. No. 2-05-45, 2006-Ohio-3629, expressly rejected the contention
that a trial court abuses its discretion by failing to consider nonconforming evidence in
No. 14AP-1066 15

ruling on a motion for summary judgment simply because the opposing party does not
object. Id. at ¶ 22.
{¶ 40} In Royce v. Yardmaster, Inc., 11th Dist. No. 2007-L-080, 2008-Ohio-1030,
the court of appeals held that it was not an abuse of discretion for the trial court to
disregard an unfiled deposition when granting summary judgment for the moving party.
In so holding, the Royce court engaged in the following analysis:
Initially, we note that these depositions were never filed with
the court, and appellant did not include with the excerpts the
court reporter's certification for either deposition. These
unauthenticated excerpts were attached to appellant's brief in
opposition to summary judgment, so we must presume the
trial court was aware of their existence. However, because the
court did not refer to them in its judgment entry and
awarded summary judgment to appellee, we must presume
the court disregarded them.

***

We therefore hold that because appellant failed to file the
entire transcripts or to include the court reporter's
certification of them with the excerpts, the trial court properly
exercised his discretion in disregarding them.

(Emphasis added.) Id. at ¶ 35, 38.
{¶ 41} " 'A general principal of appellate review is the presumption of regularity;
that is, a trial court is presumed to have followed the law unless the contrary is made to
appear in the record.' " Giffin v. Crestview Cadillac, 10th Dist. No. 09AP-278, 2009-
Ohio-6569, ¶ 33, quoting Tonti v. E. Bank Condominiums, LLC, 10th Dist. No. 07AP-388,
2007-Ohio-6779, ¶ 26. O.R.'s deposition transcript was not filed with the trial court, the
excerpts are not authenticated, there is no evidence of O.R.'s signature or a waiver of
signature, and the excerpts do not indicate court reporter certification. Thus, the
deposition excerpts are not acceptable evidence under Civ.R. 56(C). Hayes. Because the
excerpts were attached as an exhibit to appellant's memorandum in opposition to the
district's motion for summary judgment, we must presume that the trial court was aware
of their existence. Under the prevailing case law, the district's failure to object to the
deposition excerpts means that the trial court had the discretion to either consider the
No. 14AP-1066 16

excerpts or disregard them. Hayes; Bell; Armaly; Royce. Here, as was the case in Royce,
the trial court granted summary judgment without mentioning the deposition excerpts.
{¶ 42} In my view, this court must presume from the trial court's silence that it
chose to disregard the excerpts of O.R.'s deposition. Id. There is no basis in this record to
conclude that the trial court's decision was unreasonable, arbitrary, or capricious.
Because the majority presumes trial court error from a silent record, I cannot agree with
the majority decision.
{¶ 43} Moreover, O.R. merely responded in the affirmative when she was asked if
there was "ordinary glass" in the door. (O.R. Depo. 22.) Even if this testimony could be
construed as an assertion that the door did not contain safety glazed glass, the deposition
excerpt contains no foundation upon which it can be inferred that O.R. is competent to
render an opinion as to the type of glass that caused her injury. See Evid.R. 701.5 Thus,
O.R.'s opinion testimony is insufficient to create an issue of fact regarding the existence of
a defect. See Maynard v. Winters, 5th Dist. No. 2012 AP 05 0035, 2012-Ohio-6286 (in
tenant's action against landlord for injuries caused by a plate glass storm door, evidence
that landlord had 30 years experience as a carpenter and had previously hung storm
doors and storm windows was insufficient to raise a factual issue whether the landlord
knew or should have known that the storm door contained plate glass rather than safety
glass); Odom v. Davis, 4th Dist. No. 02CA43, 2003-Ohio-3316 (in tenant's action against
landlord to recover for injuries sustained when a plate glass shower door shattered,
evidence that landlord had been a professional real estate businessperson for
approximately 40 years, that he personally managed approximately 50 rental properties,
and that he has owned commercial rental property was not sufficient to give rise to an
inference that the landlord possessed knowledge of the fact that the shower door was
made of plate glass).
{¶ 44} Therefore, I would overrule appellant's second assignment of error.
{¶ 45} For the foregoing reasons, I would affirm the judgment of the trial court.

5 Evid.R. 701 provides: "If the witness is not testifying as an expert, the witness' testimony in the form of

opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the
perception of the witness and (2) helpful to a clear understanding of the witness' testimony or the
determination of a fact in issue."