[Cite as Estate of Case v. KKS Park Family Ltd. Partnership, PLL, 2020-Ohio-1098.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
ESTATE OF REVA CASE C.A. No. 29439
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
KKS PARK FAMILY LIMITED COURT OF COMMON PLEAS
PARTNERSHIP, PLL, et al. COUNTY OF SUMMIT, OHIO
CASE No. CV-2017-04-1332
Appellee
DECISION AND JOURNAL ENTRY
Dated: March 25, 2020
HENSAL, Judge.
{¶1} The Estate of Reva Case appeals a judgment of the Summit County Court of
Common Pleas that granted summary judgment to Austin Center III Condominium Association on
its negligence claim. For the following reasons, this Court affirms.
I.
{¶2} Ms. Case went to an appointment at her doctor’s office accompanied by her son.
As they were exiting the building following the appointment, an employee beckoned to Ms. Case’s
son, so he returned to the desk. According to Ms. Case, she continued outside onto the sidewalk
that is next to the parking lot. Ms. Case’s son was keeping an eye on her, but suddenly saw her
fall. Ms. Case sued her doctor’s office and Austin Center III Condominium Association (“the
Association”), which owned the land outside of the building, including the sidewalk and parking
lot, for negligence. Following discovery, the Association moved for summary judgment. Ms.
Case moved to strike an affidavit that the Association filed with its reply brief. Before the trial
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court ruled on the motions, Ms. Case passed away, and her estate was substituted as the plaintiff.
The trial court granted the motion for summary judgment because it concluded that it was unknown
how Ms. Case fell and because any defects in the curb or sidewalk were open and obvious. The
Estate has appealed, assigning three errors.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN GRANTING AUSTIN CENTER III
CONDOMINIUM ASSOCIATION’S MOTION FOR SUMMARY JUDGMENT.
{¶3} The Estate argues that the trial court should not have granted summary judgment to
the Association because there is substantial disagreement over whether Ms. Case fell because of a
dangerous condition on its property. It also argues that the defect that caused Ms. Case to fall was
not open and obvious. Under Civil Rule 56(C), summary judgment is appropriate if:
[n]o genuine issue as to any material fact remains 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, 327 (1977). To succeed on a motion for summary
judgment, the party moving for summary judgment must first be able to point to evidentiary
materials that demonstrate there is no genuine issue as to any material fact, and that it is entitled
to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). If the movant
satisfies this burden, the nonmoving party “must set forth specific facts showing that there is a
genuine issue for trial.” Id. at 293, quoting Civ.R. 56(E). This Court reviews an award of summary
judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996).
{¶4} To prevail in its negligence action, the Estate had to establish: “(1) the existence
of a duty, (2) a breach of that duty, and (3) an injury proximately resulting from the breach.”
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Robinson v. Bates, 112 Ohio St.3d 17, 2006–Ohio–6362, ¶ 21. The legal duty owed to an injured
party is dictated by the relationship between the owner of the premises and the injured party.
Hidalgo v. Costco Wholesale Corp., 9th Dist. Lorain No. 12CA010191, 2013–Ohio–847, ¶ 7. A
business invitee is a “person[ ] who come[s] upon the premises of another, by invitation, express
or implied, for some purpose which is beneficial to the owner.” Mondi v. Stan Hywet Hall &
Gardens, Inc., 9th Dist. Summit No. 25059, 2010–Ohio–2740, ¶ 12, quoting Light v. Ohio Univ.,
28 Ohio St.3d 66, 68 (1986). The parties do not dispute that Ms. Case was a business invitee.
{¶5} In its motion for summary judgment, the Association argued that the Estate could
not establish causation because it could not identify the reason Ms. Case fell. In support of its
argument it pointed to the deposition of Ms. Case, in which she could not identify what caused her
to fall. Ms. Case testified at her deposition that her son left her standing on the sidewalk right in
front of her doctor’s office.
[A]ll at once, I don’t remember what went through my brain, I don’t know, because
I hadn’t been walking by myself on account of my hip, * * * but I had started and
went out. Or well, I had to, went out and stepped, and when I stepped, I don’t
remember it, but I’m just saying I had to, because I fell, so I had to step off the
sidewalk, where they didn’t have a – oh, a place to get off.
When asked to just tell what she remembered, Ms. Case continued: “[y]eah. To step down to a
step, and that’s the last I ever knew.” When asked if she stepped in a hole, Ms. Case answered:
“I don’t know whether I stepped in a hole. I don’t even remember if there was a hole there.” When
asked if her foot caught on something causing her to trip, Ms. Case answered: “Honey, I can’t tell
you that. I don’t know. I went down so fast, that was it.” Ms. Case was then asked whether there
was anything about the sidewalk that made her fall. Ms. Case answered:
Yeah. Yeah. The way, like I said, it comes out this way instead of having it to
where you can step down easy. And like I said, I don’t remember stepping down,
but I had to, or fell at the top of it. I don’t know. I can’t tell you something I don’t
know.
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Ms. Case was next asked whether she was looking where she was walking. Ms. Case answered:
“I was just standing there at it. That’s why I can’t tell you what I done when I stepped down[.]”
When asked if seeing a picture of the sidewalk would help her remember, Ms. Case said that it
would not and repeated that she did not know why she fell.
{¶6} The Association also submitted the deposition of Ms. Case’s son, who testified that
he saw his mother fall through a window of the doctor’s office. He testified that he could not see
what made his mother fall because of the wall below the window and could not see whether she
stepped on anything or tripped on anything.
{¶7} “For an act to be the proximate cause of an injury, it must appear that the injury
was the natural and probable consequence of such act.” Ross v. Nutt, 177 Ohio St. 113, 114 (1964).
“There must be some evidence, direct or inferential, that the agency which produces an injury is
the result of the negligence of a defendant before he can be held liable[.]” Gedra v. Dallmer Co.,
153 Ohio St. 258, 265 (1950). “[I]f the cause of an injury to a plaintiff may be as reasonably
attributed to an act for which the defendant is not liable as to one for which he is liable, the plaintiff
has not sustained the burden of proving that his injury is the direct result of the defendant’s
negligence.” Id. Upon review of the record, we conclude that the Association met its burden of
establishing that there was no evidence that a breach of the duty it owed to Ms. Case was the
proximate cause of her fall.
{¶8} In the argument section of its brief, the Estate does not point to any evidence in the
record that creates a genuine issue of material fact regarding the reason Ms. Case fell. The Estate
argues that the Association was responsible for the common area where Ms. Case fell, but that was
not in dispute. It argues that Ms. Case was a business invitee, which also was not in dispute. It
argues that there were defects in the handicapped ramps connecting the sidewalk to the parking lot
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and asserts that they were a breach of the Association’s duty of care. It also argues that the
Association was on notice of the defects yet failed to correct or even inspect them. It does not
argue, however, that it was a defect in a handicapped ramp that caused Ms. Case to fall. It also
does not point to any evidence in the record that would suggest a handicapped ramp had anything
to do with Ms. Case’s fall. App.R. 16(A)(7) (providing that an appellant’s argument must include
the “reasons in support of [its] contentions, with citations to the * * * parts of the record on which
appellant relies.”).
{¶9} In its statement of facts, the Estate notes that Ms. Case’s son testified that, after his
mother fell, he went outside and found her “in the handicap wheelchair accessible ramp[.]” He
also noted that the ramp was not marked, that “it was all jagged[,]” “the concrete was tore up and
a piece of the curb was tore out.” He further testified that there was a “hump” somewhere in the
vicinity of the handicapped ramp that was not visible “because of the canopy and the glare[.]”
{¶10} It is not the duty of this Court to construct an argument for the Estate. Wiegand v.
Fabrizi Trucking & Paving Co. Inc., 9th Dist. Medina No. 16CA0015-M, 2017-Ohio-363, ¶ 35.
We note, however, that mere speculation regarding the proximate cause of an injury is insufficient
to create a genuine issue of material fact. Parras v. Standard Oil Co., 160 Ohio St. 315, 319 (1953)
(“A probative inference for submission to a jury can never arise from guess, speculation or wishful
thinking.”); Rosenbrook v. Lucas Cty. Bd. of Commrs., 6th Dist. Lucas Nos. L-14-1175, L-14-
1176, 2015-Ohio-1793, ¶ 50; Sams v. College Bowl Lanes, Inc., 5th Dist. Stark No. 2011CA00138,
2012-Ohio-150, ¶ 14; Wall v. Viking Forge, 11th Dist. Portage No. 2011-P-0007, 2011-Ohio-6522,
¶ 15; Brown v. The Twins Group-PH, LLC, 2d Dist. Clark No. 2004CA59, 2005-Ohio-4197, ¶ 13;
Stamper v. Middletown Hosp. Assn., 65 Ohio App.3d 65, 68 (12th Dist.1989).
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{¶11} Upon review of the record, we conclude that the Estate has failed to establish that
the trial court incorrectly determined that there was no genuine issue of material fact that the
Association breached a duty it owed to Ms. Case that was the proximate cause of her fall. In light
of this determination, it is not necessary to address whether any of the alleged defects on or in the
vicinity of the handicapped ramp were open and obvious, which was the trial court’s other reason
for granting summary judgment to the Association. The Estate’s first assignment of error is
overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED WHEN IT STRUCK THE TESTIMONY OF
EDWARD CASE.
{¶12} The Estate next argues that the trial court incorrectly refused to consider Ms. Case’s
son’s testimony regarding what Ms. Case’s doctor said following the fall. According to Ms. Case’s
son, after Ms. Case was transported to the hospital, he walked with the doctor over to the
Association’s office. As they walked, the doctor told him that he had told the Association several
times to have “that” fixed because somebody was going to fall and get hurt. When they entered
the office, the doctor began yelling and screaming at a woman in the office that he had told her
several times that “that had to be fixed and you didn’t fix it.” The trial court struck the statements
as hearsay.
{¶13} The Estate argues that the doctor’s statements were not hearsay because they were
excited utterances under Evidence Rule 803(2) and because they constituted an admission by a
party opponent under Rule 801(D)(2). Upon review of the record, however, we conclude that any
error by the trial court in excluding the statements was harmless. Civ.R. 61. There is no evidence
that the doctor witnessed Ms. Case’s fall. Thus, like Ms. Case’s son, he could merely speculate as
to what caused Ms. Case to fall. See Rosenbrook, 2015-Ohio-1793, at ¶ 50 (explaining that
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testimony of witness who heard victim fall and hit the ground did not create a genuine issue of
material fact regarding the cause of the fall because he did not personally witness the fall);
Stamper, 65 Ohio App.3d at 69 (explaining that expert opinion that stairs were negligently
designed, constructed, and installed failed to provide a basis for concluding that the alleged
negligence caused the victim to fall). The Estate’s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED WHEN IT FAILED TO STRIKE THE NEW
EVIDENCE SUBMITTED BY DEFENDANT-APPELLEE IN ITS REPLY
BRIEF.
{¶14} The Estate also argues that the trial court incorrectly considered an affidavit of the
doctor that the Association submitted with its reply brief. In the affidavit, the doctor averred that
he had never complained to the Association about the sidewalk or anything else in the vicinity of
where Ms. Case fell. The Estate argues that the submission of the new affidavit violated one of
the trial court’s local rules concerning the submission of additional evidentiary materials with a
reply brief.
{¶15} Because the doctor’s affidavit does not contain any information establishing the
reason that Ms. Case fell, we conclude that any error by the trial court in considering the affidavit
was harmless. Civ.R. 61. The Estate’s third assignment of error is overruled.
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III.
{¶16} The Estate’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
TEODOSIO, P. J.
CALLAHAN, J.
CONCUR.
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APPEARANCES:
JOHN F. BURKE, III, Attorney at Law, for Appellant.
KRISTEN E. CAMPBELL TRAUB, Attorney at Law, for Appellee.