Kiser v. United Dairy Farmers

219 N.E.3d 465

Courtney KISER, Plaintiff-Appellant,

v.UNITED DAIRY FARMERS, Defendant-Appellee.

No. 22AP-539

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on June 27, 2023

On brief: Cox Law Office, LLP, and Michael T. Cox for appellant. Argued: Michael T. Cox.

On brief: Frost Brown Todd, LLC, Caitlyn E. Vetter, Ryan W. Goellner, and Kaitlyn Hawkins-Yokley for appellee. Argued: Ryan W. Goellner.

DECISION

EDELSTEIN, J.

{¶ 1} Plaintiff-appellant, Courtney Kiser, appeals a final judgment of the Franklin County Court of Common Pleas granting summary judgment in favor of defendant-appellee, United Dairy Farmers ("UDF"), on August 10, 2022. For the following reasons, we reverse and remand.

I. Facts and Procedural History

{¶ 2} On February 25, 2019,¹ at around 7:53 A.M., Courtney Kiser pulled into a parking space at a UDF in Grove City, Ohio, to pick up donuts and chocolate milk for her two children. Minutes before her arrival, the driver of a vehicle occupying the same parking space emptied two beverages on the ground before driving away. The morning was windy, cold, and dry; Ms. Kiser did not recall any precipitation. Ms. Kiser climbed out of her car, but while turning to shut the car door, she slipped and fell in the parking lot, injuring her right arm and shoulder. Before getting to her feet with assistance from another customer, Ms. Kiser recalled noticing a small, circular, sheet of ice that had not been visible behind her open car door. She believed it was a discarded beverage that had frozen over some time before her fall. Ms. Kiser then entered the store, spoke to UDF employee Heidi Ratkowski while making her purchases, left the store, and drove home. In a deposition taken after she filed the complaint in this case, Ms. Kiser discussed the conversation she had with Ms. Ratkowski: "From what I recall, she overheard the gentleman asking if I was okay, and she said, oh, you slipped on ice, I meant to go put salt on it and I forgot, crap, thanks lady." (Dec. 6, 2021 Kiser Dep. at 22.) Ms. Ratkowski also recalled during her own deposition having a conversation with Ms. Kiser about her fall. She described it as follows: "Customers said that a customer had fallen outside on coffee. So when she had came to the counter, you know, I said are you okay. And she said yes, I got out of my car, fell on the coffee. I said are you sure you're okay? She said she was fine. That was it, end of conversation." (Mar. 14, 2022 Ratkowski Dep. at 16.) Still in pain later that day, Ms. Kiser sought medical treatment at an urgent care facility.

{¶ 3} Ms. Kiser filed a complaint against UDF on February 5, 2021, alleging a single claim of negligence. UDF moved for summary judgment, asserting that because Ms. Kiser slipped on a puddle caused by a beverage that was spilled just minutes before her arrival, no evidence in the record supported a conclusion that UDF had actual or constructive notice of a hazard in their parking lot. Exhibits attached in support of the motion included Ms. Kiser's December 6, 2021 deposition, Ms. Ratkowski's March 14, 2022 deposition, and surveillance video footage of the store from February 25, 2019 between roughly 7:00 A.M. and 8:00 A.M. In her response to UDF's summary judgment motion, Ms. Kiser asserted that the cause of her fall—either ice from an earlier spill or the beverages spilled on the video—remained a genuine issue of material fact despite the conclusion reached by UDF. Thus, she claimed, without knowing definitively what caused her to fall, it was impossible to determine whether UDF should have known about the hazard. Ms. Kiser also argued that her deposition testimony recalling Ms. Ratkowski's admission created a fact issue as to actual notice.

{¶ 4} The trial court entered summary judgment in favor of UDF on August 10, 2022. In its decision, the trial court found that the uncontroverted evidence established a UDF customer dumped beverages in the parking space where Ms. Kiser fell, no other parties passed the parking space before Ms. Kiser arrived a few minutes later, Ms. Kiser slipped while exiting her vehicle, and "[w]hen she looked to see what she slipped on, she noticed ice that was caused by a spilled beverage." (Aug. 10, 2022 Entry Granting Summ. Jgmt. at 4.) Next, the trial court found UDF did not have constructive notice of the hazard because the cause of her fall was the beverage spilled minutes before, so "the hazard did not exist long enough to justify an inference of notice." Id. at 7. The court further concluded UDF lacked actual notice because no UDF employee walked past the area where the beverage was spilled before Ms. Kiser fell and because Ms. Ratkowski testified during her deposition that she did not learn about the hazard until Ms. Kiser entered the store following her fall in the parking lot. Id.

{¶ 5} Having found that UDF met its initial burden under Civ.R. 56(C), the trial court turned to whether Ms. Kiser identified specific facts in the record demonstrating a genuine dispute of material fact remaining for trial. The court considered Ms. Kiser's contrary assertion that she fell on ice (rather than a slick surface or puddle) so the hazard could not have been caused just minutes before her arrival, but concluded this argument was unsupported and speculative. Id. at 8. In reliance on Ervin v. Case Bowen Co. , 10th Dist. No. 07AP-322, 2008-Ohio-393, 2008 WL 307745, ¶ 10-11, the court then stated, "Plaintiff testified the UDF employee said she saw the ice and meant to put salt on it. Kiser Depo., p. 19. However, there is no other support for Plaintiff's recollection. By itself, self-serving deposition testimony is insufficient to demonstrate a material question of fact." (Entry Granting Summ. Jgmt. at 8-9.)

{¶ 6} Because the trial court relied on Ervin and Ms. Kiser was only able to produce her own deposition testimony to support her claim that a UDF employee was aware of the ice prior to her fall, the court concluded Ms. Kiser failed to meet her reciprocal burden to identify a genuine dispute of material fact and thus UDF was entitled to judgment as a matter of law. Having discounted Ms. Kiser's deposition testimony as self-serving and uncorroborated, the court resolved the question of actual notice with Ms. Ratkowski's deposition testimony denying any awareness of a slippery patch and the video footage confirming no UDF employee passed the parking space during the short period of time between the spill and Ms. Kiser's arrival. And the trial court held there could not be constructive notice based on the insufficient amount of time between the spill of the beverages and Ms. Kiser's accident.

{¶ 7} This appeal timely followed.

II. Assignments of Error

{¶ 8} Ms. Kiser presents the following assignments of error for our review:

[I.] The trial court errored in determining that United Dairy Farmer's [sic] did not have notice of the hazard and therby [sic] had a duty to warn or remedy.

[II.] The trial court errored in determining that plaintiff had not demonstrated material issues of fact regarding the source of the hazard.

[III.] The trial court errored in disregarding defendant's admission of knowledge of the hazard.

III. Discussion

A. Standard of Review and Relevant Law

{¶ 9} We review a decision granting summary judgment de novo. Under the de novo standard of review, an appellate court undertakes an independent review of the evidence without deference to the trial court's decision. Nazareth Deli LLC v. John W. Dawson Ins. Inc. , 10th Dist., 2022-Ohio-3994, 200 N.E.3d 652, ¶ 22. Summary judgment shall be rendered if "there is no genuine issue as to any material fact and * * * the moving party is entitled to judgment as a matter of law." Civ.R. 56(C).

{¶ 10} "In order to prevail on a claim of negligence, a plaintiff must demonstrate a breach of duty, and an injury resulting therefrom." Liggins v. Giant Eagle McCutcheon & Stelzer , 10th Dist. No. 17AP-383, 2019-Ohio-1250, 2019 WL 1502499, ¶ 13. Ms. Kiser's negligence claim is based on premises liability, so she asserted below that UDF breached its duty to maintain its premises in a safe condition because it had notice of a hazardous condition in the parking lot and failed to either rectify the hazard or adequately warn customers of potential danger. (Feb. 5, 2021 Compl. at ¶ 6.) "Business owners owe business invitees [like Ms. Kiser] a duty of ordinary care in maintaining the premises in a reasonably safe condition so as not to unnecessarily and unreasonably expose invitees to danger." Watkins v. Scioto Downs , Inc. , 10th Dist., 2016-Ohio-3141, 66 N.E.3d 88, ¶ 9. A business invitee injured by a hazardous condition on the premises must establish that the business was responsible for the dangerous condition or had actual or constructive notice of the hazard. Balcar v. Wal-Mart Store No. 2726 , 10th Dist. No. 12AP-344, 2012-Ohio-6027, 2012 WL 6670422, ¶ 12. If a genuine issue of material fact exists as to any of these three factors, summary judgment is not appropriate. Liggins at ¶ 17.

{¶ 11} Because we find it dispositive to resolving this appeal, we begin our analysis with Ms. Kiser's third assignment of error, which asserts the trial court erred by disregarding her deposition testimony concerning Ms. Ratkowski's admission.

B. Ms. Kiser's Third Assignment of Error

{¶ 12} In its decision granting summary judgment, the trial court relied exclusively on Ervin , 2008-Ohio-393, to conclude that uncorroborated, "self-serving" testimony could not, as a matter of law, create an issue of fact to defeat summary judgment. (Aug. 10, 2022 Entry Granting Summ. Jgmt. at 8-9.) On appeal, Ms. Kiser argues that a nonmoving party's deposition testimony is a proper basis to determine that a genuine issue remains for trial and the trial court erred in relying on Ervin to hold otherwise. (Appellant's Brief at 16-17.) We agree.

{¶ 13} " Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue...