The opinion
[Cite as Pickens v. Kroger Co., 2014-Ohio-4825.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Janetta L. Pickens, :
Plaintiff-Appellant, :
No. 14AP-215
v. : (C.P.C. No. 13CVC- 7440)
Kroger Company, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on October 30, 2014
Joy L. Marshall, for appellant.
Weston Hurd LLP, Kevin R. Bush and Joshua C. Berns, for
appellee.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Plaintiff-appellant, Janetta L. Pickens ("appellant"), appeals the
February 18, 2014 judgment of the Franklin County Court of Common Pleas granting
summary judgment in favor of defendant-appellee, Kroger Company ("appellee"), and
granting appellee's motion to strike appellant's affidavit filed in support of her
memorandum contra to the motion for summary judgment. For the reasons that follow,
we affirm the judgment of the trial court.
I. Facts and Procedural History
{¶ 2} Appellant filed a complaint on July 9, 2013 in the court of common pleas,
alleging that, on or about July 9, 2011, she was a patron at a store owned by appellee, and
that, while in appellee's store, she slipped and was injured as a result of appellee's
negligence. On November 7, 2013, appellee filed a motion for summary judgment,
No. 14AP-215 2
asserting that there remained no genuine issues of material fact for trial and offering
appellant's deposition in support of its contentions.
{¶ 3} On November 21, 2013, appellant filed a motion for an extension of time to
respond to appellee's motion for summary judgment. On November 25, 2013, appellee
filed a motion to strike portions of appellant's motion for an extension of time that
asserted a genuine issue of material fact remained for trial, while stating that appellee did
not otherwise oppose the extension of time. In an entry filed on December 2, 2013, the
trial court granted appellant's motion for an extension of time and granted in part
appellee's motion to strike, noting that the court disregarded appellant's arguments
related to alleged issues of material fact in the motion for extension of time.
{¶ 4} On December 31, 2013, appellant filed a memorandum contra to the motion
for summary judgment and filed an affidavit containing appellant's own statement in
support of the memorandum contra. On January 13, 2014, appellee filed a reply
memorandum in support of its motion for summary judgment and a motion to strike
appellant's affidavit, alleging that it directly contradicted appellant's prior deposition
testimony.
{¶ 5} On February 18, 2014, the trial court granted both the motion for summary
judgment and the motion to strike appellant's affidavit, citing appellant's lack of response
to the motion to strike.
II. Assignments of Error
{¶ 6} Appellant appeals, assigning the following two errors for our review:
[I.] THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT WHEN THERE WERE GENUINE ISSUES OF
MATERIAL FACT THAT SHOULD HAVE BEEN
PRESENTED FOR THE JURY.
[II.] THE TRIAL COURT ERRED WHEN IT STRUCK THE
PLAINTIFF'S AFFIDAVIT IN OPPOSITION TO THE
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT.
As the propriety of summary judgment necessarily depends upon the extent of the
evidence properly before the trial court, we first address appellant's second assignment of
error.
No. 14AP-215 3
III. Second Assignment of Error—Motion to Strike
{¶ 7} Appellant's second assignment of error asserts that the trial court erred by
granting appellee's motion to strike appellant's affidavit because it clarifies statements in
appellant's deposition, regardless of whether or not appellant filed a memorandum in
opposition to the motion to strike. Appellee responds that the trial court properly struck
appellant's affidavit in support of her memorandum contra to the motion for summary
judgment because it contradicts her prior deposition testimony in an effort to create a
genuine issue of material fact where none exists. Appellee also notes that appellant never
offered a response to the motion to strike the affidavit.
{¶ 8} We first address appellant's failure to respond to the motion to strike. We
have previously held that, regardless of the party's failure to file a response to a motion to
strike, the attempt to introduce supplemental authority in the context of a motion for
summary judgment is sufficient to preserve any arguments related to its admissibility and
relevance upon appeal. Key Bank Natl. Assn. v. Southwest Greens of Ohio L.L.C., 10th
Dist. No. 11AP-920, 2013-Ohio-1243, ¶ 67, citing Douglass v. Salem Community Hosp.,
153 Ohio App.3d 350, 2003-Ohio-4006, ¶ 20 (7th Dist.). We therefore consider the merits
of appellant's assignment of error.
{¶ 9} A trial court may consider evidence in the form of an affidavit submitted by
one of the parties in deciding a motion for summary judgment provided that the affidavit
is made on personal knowledge, sets forth such facts as would be admissible in evidence,
and affirmatively shows that the affiant is competent to testify to matters stated in the
affidavit. Civ.R. 56(E). We review for abuse of discretion the decision of a trial court to
grant or deny a motion to strike an affidavit. Key Bank at ¶ 68; State ex rel. O'Brien v.
Messina, 10th Dist. No. 10AP-37, 2010-Ohio-4741, ¶ 21.
{¶ 10} "When determining the effect of a party's affidavit that appears to be
inconsistent with the party's deposition and that is submitted either in support of or in
opposition to a motion for summary judgment, a trial court must consider whether the
affidavit contradicts or merely supplements the deposition." Byrd v. Smith, 110 Ohio
St.3d 24, 2006-Ohio-3455, paragraph one of the syllabus. "An affidavit of a party
opposing summary judgment that contradicts former deposition testimony of that party
may not, without sufficient explanation, create a genuine issue of material fact to defeat
No. 14AP-215 4
the motion for summary judgment." Id. at paragraph three of the syllabus. Where a party
submits a contradictory affidavit without sufficient explanation, the trial court may
properly grant a motion to strike the affidavit and, where appropriate, may also grant a
motion for sanctions. See Civ.R. 56(G); Byrd at ¶ 27 ("Sham affidavits are subject to a
motion to strike and motions for sanctions.").
{¶ 11} We must, therefore, review appellant's testimony in her deposition and
affidavit and determine whether the affidavit contradicts or supplements the deposition.
Appellant testified in her deposition as follows:
Q. After the fall, you indicated to me that you saw a cup on
the floor?
A. Right.
Q. Did you actually see the cup on the floor as you were sitting
on the floor after your fall?
A . Right. It was to the right where that little stand was.
Q. What color was the cup?
A. I don't remember.
Q. Other than this cup, did you see any substance on the
floor?
A. Yes, it was brown and white. So I figured -- they were
selling floats that day, so I figured it had to be one of those.
***
Q. Had you looked down in that area where you saw the cup
after you fell, had you looked in that area before you fell,
would you have seen that cup?
A. If I would have looked before I fell?
Q. Yes.
A. If I had been looking down before I fell, I would have saw
[sic] the spill when I probably saw [sic] the cup because I
would have looked to see where the spill was coming from. If I
had looked down and then looked to the right, yes. I would
have saw [sic] all that. But when I was walking, I was walking
and thinking, okay, I got this, I got this. I'm just walking, and
then I fall.
No. 14AP-215 5
Q. In other words, there wasn't anything that prevented you
from seeing the cup and spill had you looked down right
before you fell?
A. I don't know. Preventing me from seeing?
Q. Yes, obstructing your view of it.
A. I don't know. We will have -- I don't know.
(Appellant's Depo., 62-63, 65-66.)
{¶ 12} Appellant's affidavit states:
I went into the Kroger store and began scanning the store for
items from my list. My eyes were not fixated on the floor. I
slipped on the float that was on the store floor. I mentioned
that if I had looked down and then right, I may have seen it. I
am not sure. It was not obvious. The float, with a mixture of
the brown root beer and the vanilla ice cream, made a tan
liquid. I recall that it may have been the same color as the
floor, which I also recalled as tan. There was also the wooden
stand, which obstructed the spill on the floor. Once down on
the floor, I saw the spill and its source completely.
(Emphasis sic.) (Appellant's December 31, 2013 Affidavit in Support of Memorandum
Contra Motion for Summary Judgment.)
{¶ 13} Appellant's averment that a wooden stand obstructed her view of the spill
contradicts appellant's deposition testimony in which she stated that she did not know if
there was an obstruction preventing her from viewing the spill. See Bailey v. Topline
Restaurants, Inc., 10th Dist. No. 11AP-359, 2012-Ohio-1759, ¶ 23-24 (detailed, conclusive
account in affidavit inconsistent with vague or lack of recollection in deposition
testimony). Appellant provides no explanation for the inconsistency between these
statements. As a result of her failure to provide a sufficient explanation for the
contradiction, appellant cannot rely on her affidavit in response to the motion for
summary judgment to create a genuine issue of material fact. Byrd at ¶ 28. See also King
v. E. Worthington Village, 10th Dist. No. 13AP-324, 2013-Ohio-4160, ¶ 23; Bailey at ¶ 25.
{¶ 14} As appellant's affidavit could not be used to create a genuine issue of
material fact for purposes of summary judgment regardless of whether the trial court
granted or denied the motion to strike, we cannot find that the trial court abused its
No. 14AP-215 6
discretion in granting appellee's motion to strike the affidavit. Accordingly, we overrule
appellant's second assignment of error.
IV. First Assignment of Error—Summary Judgment
{¶ 15} Appellant's first assignment of error asserts that the trial court erred by
granting summary judgment where appellant presented evidence that appellee created a
foreseeable hazard and the hazard was not open and obvious. Appellant also contends
that it was improper for the trial court to grant summary judgment when appellant
requested additional time to conduct discovery. Appellee responds that the trial court did
not err by granting summary judgment where there is no genuine issue of material fact
because appellant admitted in deposition testimony that she would have observed the
hazard prior to falling if she had been looking, thereby rendering the hazard open and
obvious. Appellee also contends that granting summary judgment is proper where
appellant has provided no evidence that appellee created the hazard.
{¶ 16} First, we examine appellant's contention in her appellate brief that she
"moved for additional time to respond, after the discovery was completed" and that the
trial court failed to rule on such request. (Appellee's Brief, 6.) Appellant asserts that, if the
trial court had granted her request for additional time to conduct discovery, appellant
would have been able to procure an affidavit to further support the existence of genuine
issues of material fact. Civ.R. 56(F) provides the trial court with discretion to grant a
continuance for a party opposing the motion for summary judgment to obtain affidavits
or additional discovery. However, after thorough review, the record does not reflect, nor
does appellant specifically point to, a motion filed by appellant pursuant to Civ.R. 56(F)
requesting a continuance to complete discovery.
{¶ 17} Appellant's motion for additional time to respond to the motion for
summary judgment states that "the discovery cutoff is in April of 2014" and that she "is
confident that additional discovery, to include the procurement of a supporting affidavit
will further show that there are genuine issues of material fact." (Nov. 21, 2013 Motion, 2.)
Although the trial court disregarded appellant's statements concerning the presence of
genuine issues of material fact, it granted appellant's request for an extension of time, and
appellant filed an affidavit in support of her memorandum contra. Nevertheless, appellant
seems to suggest that this extension was insufficient to conduct required discovery.
No. 14AP-215 7
However, even if we were to construe appellant's motion for additional time to respond to
the motion for summary judgment as a Civ.R. 56(F) motion, appellant fails to meet the
qualifications for granting a Civ.R. 56(F) request.
{¶ 18} We have previously held that a party is not entitled to rely on the discovery
cutoff date as a threshold before which the trial court may not entertain a motion for
summary judgment. Whiteside v. Conroy, 10th Dist. No. 05AP-123, 2005-Ohio-5098,
¶ 38, citing Doriott v. MVHE, Inc., 2d Dist. No. 20040, 2004-Ohio-867, ¶ 45. The party
moving for a continuance pursuant to Civ.R. 56(F) " 'bears the burden of establishing why
the party cannot present sufficient facts to justify its opposition to a motion for summary
judgment without a continuance.' " Foxfire Village Condominium Unit Owners' Assn. v.
Meyer, 10th Dist. No. 13AP-986, 2014-Ohio-3339, ¶ 13, quoting Ford Motor Credit Co. v.
Ryan, 189 Ohio App.3d 560, 2010-Ohio-4601, ¶ 100 (10th Dist.). " 'The moving party
cannot meet this burden with mere allegations; rather, the moving party must aver in an
affidavit a particularized factual basis that explains why further discovery is necessary.' "
Foxfire at ¶ 13, quoting Ford at ¶ 100. We review a trial court's denial of a Civ.R. 56(F)
motion for abuse of discretion. Singleton v. Ohio Concrete Resurfacing, Inc., 10th Dist.
No. 06AP-991, 2007-Ohio-2012, ¶ 21.
{¶ 19} Even if we were to construe appellant's motion for additional time as a
motion for a continuance to conduct additional discovery pursuant to Civ.R. 56(F),
appellant failed to provide an affidavit supporting her request. Despite the period of
nearly four months between the filing of the complaint and the motion for summary
judgment, the record fails to reflect any discovery requests by appellant or a motion to
compel. See Whiteside at ¶ 39 ("[A] party's own lack of diligence undermines his or her
claim that sufficient reasons exist for a Civ.R. 56(F) continuance"). Finally, appellant
provides no specific examples of evidence sought through discovery that she would not
have been able to obtain absent a continuance. Thus, even viewing appellant's motion for
an extension of time to respond to the motion for summary judgment as a Civ.R. 56(F)
motion, appellant failed to meet her burden of establishing why she could not respond to
the motion for summary judgment without a continuance.
{¶ 20} As a result, we find no merit in appellant's contention that the trial court
erred by not allowing additional time for discovery. Foxfire at ¶ 15. We therefore consider
No. 14AP-215 8
appellant's contention that genuine issues of material fact remained so as to preclude
summary judgment.
{¶ 21} An appellate court reviews summary judgment under a de novo standard.
Reed v. Davis, 10th Dist. No. 13AP-15, 2013-Ohio-3742, ¶ 9. Summary judgment is proper
only when the parties moving for summary judgment demonstrate: (1) no genuine issue of
material fact exists; (2) the moving parties are entitled to judgment as a matter of law;
and (3) reasonable minds viewing the evidence most strongly in favor of the nonmoving
party could reach but one conclusion, and that conclusion is adverse to the nonmoving
party. Civ.R. 56; Todd Dev. Co., Inc. v. Morgan, 116 Ohio St.3d 461, 2008-Ohio-87, ¶ 11.
{¶ 22} The party moving for summary judgment bears the initial burden of
informing the trial court of the basis for the motion and identifying those portions of the
record demonstrating the absence of a genuine issue of material fact by pointing to
specific evidence of the type listed in Civ.R. 56(C). Id. at ¶ 12, citing Dresher v. Burt, 75
Ohio St.3d 280, 293 (1996). If the moving party fails to satisfy its initial burden, the court
must deny the motion for summary judgment; however, if the moving party satisfies its
initial burden, summary judgment is appropriate unless the nonmoving party responds,
by affidavit or as otherwise provided under Civ.R. 56, with specific facts demonstrating a
genuine issue exists for trial. Id.; Hall v. Ohio State Univ. College of Humanities, 10th
Dist. No. 11AP-1068, 2012-Ohio-5036, ¶ 12, citing Henkle v. Henkle, 75 Ohio App.3d 732,
735 (12th Dist.1991).
{¶ 23} " 'Trial courts should award summary judgment with caution, being careful
to resolve doubts and construe evidence in favor of the nonmoving party.' " Vossman v.
AirNet Sys., 10th Dist. No. 12AP-971, 2013-Ohio-4675, ¶ 13, quoting Welco Industries,
Inc. v. Applied Cos., 67 Ohio St.3d 344, 346 (1993), citing Murphy v. Reynoldsburg, 65
Ohio St.3d 356 (1992). " 'Even the inferences to be drawn from the underlying facts
contained in the evidentiary materials, such as affidavits and depositions, must be
construed in a light most favorable to the party opposing the motion.' " Vossman at ¶ 13,
quoting Hannah v. Dayton Power & Light Co., 82 Ohio St.3d 482, 485 (1998), citing
Turner v. Turner, 67 Ohio St.3d 337, 341 (1993).
{¶ 24} Here, there is no dispute that appellant was a business invitee when she
entered appellee's store. Business owners owe business invitees a duty of ordinary care in
No. 14AP-215 9
maintaining the premises in a reasonably safe condition so as not to unnecessarily and
unreasonably expose invitees to danger. Byrd v. Arbors E. Subacute & Rehab. Ctr., 10th
Dist. No. 14AP-232, 2014-Ohio-3935, ¶ 9, citing Paschal v. Rite Aid Pharmacy, Inc., 18
Ohio St.3d 203 (1985). However, business owners are not insurers of an invitee's safety or
against all forms of accidents that may occur. Byrd at ¶ 9, citing Paschal at 203-04. "No
presumption or inference of negligence arises from the mere occurrence of an accident or
from the mere fact that an injury occurred." Byrd at ¶ 9.
{¶ 25} "The open-and-obvious doctrine 'eliminates the common law duty of
ordinary care to maintain the premises in a reasonably safe condition and to warn invitees
of latent or hidden dangers that a premises owner owes to invitees.' " Price v. Dept. of
Rehab & Corr., 10th Dist. No. 14AP-11, 2014-Ohio-3522, ¶ 10, quoting Mann v. Northgate
Investors L.L.C., 10th Dist. No. 11AP-684, 2012-Ohio-2871, ¶ 9, affirmed 138 Ohio St.3d
175, 2014-Ohio-455. "The rationale underpinning 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.' " Price at ¶ 10, quoting Mann at ¶ 9.
{¶ 26} " 'If the record reveals no genuine issue of material fact as to whether the
hazard was free from obstruction and readily appreciated by an ordinary person, the open
and obvious nature of the danger may appropriately be determined as a matter of law.' "
Price at ¶ 11, quoting Mayle v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 09AP-541,
2010-Ohio-2774, ¶ 19. "However, a question remains for trial 'if reasonable minds could
differ about whether the hazard was free from obstruction and readily appreciated by an
ordinary person.' " Price at ¶ 11, quoting Mayle at ¶ 19.
{¶ 27} Here, appellant's deposition testimony reflects that, after entering appellee's
business, she slipped and fell. After falling, she noticed that in the area where she fell
there was a "brown and white" substance on the floor near a medium-sized cup. As
earlier noted, appellant stated in her deposition testimony that, "[i]f I had been looking
down before I fell, I probably would have saw [sic] the spill when I probably saw the cup"
and that "[i]f I had looked down and then looked to the right, yes, I would have saw [sic]
all that." (Appellant's Depo., 65.)
No. 14AP-215 10
{¶ 28} Appellant points to Francill v. The Andersons, Inc., 10th Dist. No. 00AP-
835 (Feb. 15, 2001) in support of her argument that her deposition testimony reflects that
the condition was not an open-and-obvious hazard. In Francill, the plaintiff slipped and
fell in a puddle of water containing leaves and a nail inside a store. The plaintiff stated in
her deposition testimony that she did not see the water on the floor, but, if she had looked
down, she probably would have seen the water. Based upon the plaintiff's testimony that
she would have seen the water had she looked down, the court found that the hazard was
an open-and-obvious condition.
{¶ 29} Contrary to appellant's contention, Francill supports appellee's argument
that appellant's deposition testimony establishes that the spill in this case was an open-
and-obvious hazard. Here, the spill was a "brown and white" substance that, as in
Francill, appellant admits she would have noticed had she looked down as she was
walking. We have previously held that "[a]n individual 'does not need to observe a
dangerous condition for it to be an "open and obvious" condition under the law; rather,
the determinative issue is whether the condition is observable.' " Jenkins v. Ohio Dept. of
Rehab & Corr., 10th Dist. No. 12AP-787, 2013-Ohio-5106, ¶ 11, quoting Cooper v. Meijer
Stores Ltd. Partnership, 10th Dist. No. 07AP-201, 2007-Ohio-6086, ¶ 13, citing Lydic v.
Lowe's Cos., Inc., 10th Dist. No. 01AP-1432, 2002-Ohio-5001, ¶ 10. "Even in cases where
the plaintiff did not actually notice the condition until after he or she fell, this court has
found no duty where the plaintiff could have seen the condition if he or she had looked."
Jenkins at ¶ 11. Based upon appellant's own testimony, even though she did not notice the
spill until after she had fallen, it was nevertheless an observable condition.
{¶ 30} Construing the evidence most strongly in favor of appellant, reasonable
minds could only conclude that the spill in question was an open-and-obvious hazard in
that it was both observable and appreciable by an ordinary person, and such person
would be expected to discover the hazard and take measures to protect himself or herself.
Price at 21, citing Mayle at 30; Jenkins at ¶ 11. As a matter of law, therefore, appellant
cannot establish that appellee owed a duty to warn her of the spill.
{¶ 31} Because appellant failed to demonstrate that a genuine issue of material fact
remained for trial, the trial court properly granted appellee's motion for summary
judgment. Accordingly, we overrule appellant's first assignment of error.
No. 14AP-215 11
V. Disposition
{¶ 32} Having overruled both of appellant's assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
SADLER and O'GRADY, JJ., concur.
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