Mosholder v. Lowe's Home Ctrs., LLC

444 F.Supp.3d 823

Krystal MOSHOLDER, et al., Plaintiffs,

v.LOWE'S HOME CENTERS, LLC originally named as Lowe's Companies, Inc., Defendants.

Case No. 5:18-cv-1325

United States District Court, N.D. Ohio, Eastern Division.

Signed March 16, 2020

Craig M. Eoff, Craig G. Pelini, Pelini, Campbell & Williams, North Canton, OH, for Plaintiffs.

Bradley A. Wright, Joseph M. Ruscak, Nicholas P. Resetar, Roetzel & Andress, Akron, OH, for Defendants.

MEMORANDUM OPINION AND ORDER

HONORABLE SARA LIOI, UNITED STATES DISTRICT JUDGE

Before the Court is the motion for summary judgment of defendant, Lowe's Home Centers, LLC ("Lowe's" or "defendant"). (Doc. No. 23, Motion ["Mot."].) Plaintiffs, Krystal Mosholder ("Krystal") and her husband Daniel Mosholder ("Daniel") (collectively the "Mosholders" or "plaintiffs"), filed a response in opposition (Doc. No. 25, Opposition ["Opp'n"] ) and defendant replied. (Doc. No. 26, Reply ["Reply"].) The motion is now ripe for a decision.

I. BACKGROUND

This premises liability action, based upon diversity jurisdiction, arises out of a dog bite incident that occurred at a Lowe's store located at 218 Nicholas Way, Kent, Ohio 44240 (the "Store"). (See Doc. No. 21-2 (Deposition of Stacie Williams ["Williams Dep."] ) at 229¹ .) Lowe's has a policy that allows patrons to bring their pets with them into its retail stores so long as the pets are leashed and friendly. (Doc No. 25-3 (Deposition of Cameron Childers ["Childers Dep."] ) at 467.) Krystal was aware of this policy, both because she observed a "pet friendly" sticker on the Store's front door and because she visits Lowe's often to purchase supplies for her business. (Doc. No. 21-1 (Deposition of Krystal Mosholder ["Krystal Dep."] ) at 208.) In fact, for the past four years, she visited the Store five to six times per week. (Id. )

On March 15, 2018,² Krystal went to the Store to purchase supplies—including lumber, cast iron bars, and spray paint. (Id. at 210.) Krystal gathered her lumber first and left her shopping cart in that section while she walked to the other side of the Store to get spray paint. (Id. ) When Krystal arrived at the paint aisle, she noticed a leashed dog, and its owner ("Jane Doe 1")³ "standing right by the spray paint...." (Id. ) She had seen Jane Doe 1 and the dog earlier that day on the other side of the Store. (Id. ) As she entered the aisle, Krystal noticed a Lowe's employee, Stacie Williams ("Williams"), affectionately petting the dog, "right by where [Krystal] need[ed] to go." (Id. ) As Krystal walked by, the dog "turned its head" (id. ) as if to smell her. (Williams Dep. at 233.) In response, Krystal said "oh, do you smell my puppies" (id. at 231) and "tried to ... brush the top of [the dog's] head or nose," and "that's when it lunged at [Krystal] and [bit her] leg." (Krystal Dep. at 210.)

Despite her close proximity at the time of the incident, Williams did not witness the dog bite Krystal's leg. (Williams Dep. at 233.) And it is unclear whether Jane Doe 1 saw the attack. (Krystal Dep. at 210.) It is undisputed, however, that Krystal left the paint aisle immediately following the incident, she continued shopping (id. ), and, ultimately, left the Store without reporting the attack to anyone. (Doc. No 23-3 (plaintiffs' responses to first set of requests for admission ["RFA"] ) at 308.) It was not until she arrived home and removed her jeans that Krystal realized that the dog had bitten through her pants and punctured her skin. (Krystal Dep. at 211–12.) Upon this realization, Daniel called the Store⁴ and notified a Lowe's manager about the incident. (Williams Dep. at 234.) The manager, after learning that Williams was present during the incident, instructed her to write an incident report. (Id .) In her report, Williams documented her recollection of the event and posited that, in her previous encounters with the dog, it showed "no sign of aggression and ... [had] always been friendly and happy...." (Doc. No. 23-2 at 301.) Prior to this incident, Jane Doe 1 and her dog had been somewhat frequent customers at the Store (Williams Dep. at 232), but Jane Doe 1's identity remains unknown to both Krystal and Lowe's. Thus, plaintiffs brought suit against Lowe's, Jane Doe 1, and Jane Does 2–10.⁵

In the complaint, Krystal asserted claims for: (1) strict liability pursuant to Ohio Rev. Code § 955.28(B) against all defendants, (2) negligence against all defendants, (3) premises liability against Lowe's and Jane Does 2–10, and (4) bad faith against Lowe's. Daniel also brought a loss of consortium claim against all defendants. However, this Court previously dismissed all but two claims against Lowe's. (See Doc. No. 11 at 134.) The only remaining claims against Lowe's are Krystal's premises liability claim and Daniel's loss of consortium claim. For the reasons stated below, the Court grants Lowe's motion for summary judgment and the claims against the Jane Doe defendants are dismissed.

II. STANDARD OF REVIEW

Under Fed. R. Civ. P. 56(a), when a motion for summary judgment is properly made and supported, it shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record...; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1).

In reviewing summary judgment motions, this Court must view the evidence in a light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co ., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970) ; White v. Turfway Park Racing Ass'n, Inc. , 909 F.2d 941, 943–44 (6th Cir. 1990), impliedly overruled on other grounds by Salve Regina Coll. v. Russell , 499 U.S. 225, 111 S. Ct. 1217, 113 L. Ed. 2d 190 (1991). A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Determining whether a factual issue is "genuine" requires consideration of the applicable evidentiary standards. Thus, in most civil cases the Court must decide "whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict[.]" Id . at 252, 106 S. Ct. 2505.

"Once the moving party has presented evidence sufficient to support a motion for summary judgment, the nonmoving party is not entitled to trial merely on the basis of allegations; significant probative evidence must be presented to support the complaint." Goins v. Clorox Co ., 926 F.2d 559, 561 (6th Cir. 1991). The party opposing the motion for summary judgment may not rely solely on the pleadings but must present evidence supporting the claims asserted by the party. Banks v. Wolfe Cty. Bd. of Educ ., 330 F.3d 888, 892 (6th Cir. 2003) ; see Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (noting that summary judgment is appropriate whenever the non-moving party fails to make a showing sufficient to establish the existence of an essential element of that party's case and on which that party will bear the burden of proof at trial). Moreover, conclusory allegations, speculation, and unsubstantiated assertions are not evidence, and are not sufficient to defeat a well-supported motion for summary judgment. See Lujan v. Nat'l Wildlife Fed'n , 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990). In other words, to defeat summary judgment, the party opposing the motion must present affirmative evidence to support his or her position; a mere "scintilla of evidence" is insufficient. Bell v. Ohio State Univ ., 351 F.3d 240, 247 (6th Cir. 2003) (quotation marks and citation omitted). Rule 56 further provides that "[t]he court need consider only" the materials cited in the parties' briefs. Fed. R. Civ. P. 56(c)(3) ; see also Street v. J.C. Bradford & Co ., 886 F.2d 1472, 1479–80 (6th Cir. 1989) ("The trial court no longer has the duty to search the entire record to establish that it is bereft of a genuine issue of material fact.") (citing Frito-Lay, Inc. v. Willoughby , 863 F.2d 1029, 1034 (D.C. Cir. 1988) ).

Under this standard, the mere existence of some factual dispute will not frustrate an otherwise proper summary judgment motion. Dunigan v. Noble , 390 F.3d 486, 491 (6th Cir. 2004) (citing Anderson , 477 U.S. at 247–48, 106 S.Ct. 2505 ) (quotation marks omitted). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson , 477 U.S. at 248, 106 S.Ct. 2505 (citation omitted).

Because the Court is sitting in diversity, Ohio substantive law applies. See, e.g., Reid v. Volkswagen of Am., Inc. , 575 F.2d 1175, 1176 (6th Cir. 1978) (per curium) (citing Erie R.R. v. Tompkins , 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938) ).

III. DISCUSSION

A. Premises Liability Against Lowe's

Lowe's is entitled to summary judgment on Krystal's premises liability claim. Under Ohio law, in order to establish a negligence claim, the party seeking recovery "must show the existence of a duty, the breach of the duty, and injury resulting proximately therefrom." Strother v. Hutchinson , 67 Ohio St.2d 282, 423 N.E.2d 467, 469 (1981) (citing Feldman v. Howard , 10 Ohio St.2d 189, 226 N.E.2d 564, 567 (1967) ). A plaintiff's status on a defendant's premises—as a trespasser, licensee, social guest, or invitee—determines the scope of the legal duty owed. Pelland v. Wal-Mart Stores, Inc. , 282 F. Supp. 3d 1019, 1023 (N.D Ohio 2017) (citing Shump v. First Cont'l-Robinwood Assocs. , 71 Ohio...