Hammond v. Cleveland , 2012 Ohio 494 ( 2012 )

[Cite as Hammond v. Cleveland, 2012-Ohio-494.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97174
CHRISTY HAMMOND
PLAINTIFF-APPELLANT
vs.
CITY OF CLEVELAND, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-734009
BEFORE: S. Gallagher, P.J., Rocco, J., and Keough, J.
RELEASED AND JOURNALIZED: February 9, 2012
ATTORNEY FOR APPELLANT
Lester S. Potash
1717 Illuminating Building
55 Public Square
Cleveland, OH 44113-1901
ATTORNEYS FOR APPELLEES
For City of Cleveland
Thomas J. Connick
James P. Sammon
Anthony J. Trzaska
Dubyak Connick Thompson & Bloom
3401 Enterprise Pkwy.
Suite 205
Cleveland, OH 44122
For Albert M. Higley Company
Dale E. Markworth
Mansour Gavin Gerlack & Manos
2150 Illuminating Building
55 Public Square
Cleveland, OH 44113-1994
For AMEC Construction Management, Inc.
Jeffrey L. Tasse
Brandon M. Fairless
Weston Hurd LLP
The Tower at Erieview
1301 East Ninth Street, Suite 1900
Cleveland, OH 44114
For Forest City Erectors
Alan B. Glassman
Park Center Plaza II, Suite 450
6150 Oak Tree Blvd.
Independence, OH 44131
For Tomco Metal Fabricating, Inc.
James L. Glowacki
Glowacki & Imbrigiotta, LPA
7550 Lucerne Drive
Suite 408
Middleburg Heights, OH 44130
SEAN C. GALLAGHER, P.J.:
{¶ 1} Plaintiff-appellant Christy Hammond appeals the trial court’s decision
granting all the defendants’ motions for summary judgment in Cuyahoga County
Common Pleas Court Case No. CV-734009. For the following reasons, we affirm.
{¶ 2} Hammond advanced premises liability and negligent design or construction
claims against several defendants after suffering an injury caused by tripping over a rail at
the Cleveland Hopkins International Airport (“airport”), on her way to concourse D, an
addition built in 1997. The airport is owned by the city of Cleveland and leased to the
airlines. Cleveland issued a certificate of occupancy on May 21, 1999, indicating the
concourse D project was completed sometime before that date. As part of the
renovations to the airport, the concourse D addition was attached to concourse C and
linked by an underground tunnel. In order to access the tunnel, a set of steps
sandwiched between two escalators were installed at the end of concourse C. The stairs
included a handrail attached to the floor surface of the stairs and to the top of a metal bar
(“stringer”) that runs the length of the stairs. The stringer measures four and one half
inches wide by one and one half inches tall. The stringer and stair handrail are almost
seven inches from the escalator handrail, and the stringer extends less than four inches
past the escalator handrail.
{¶ 3} The 1997 renovation involved several parties. Continental Airlines
(“Continental”), Hammond’s employer, undertook the concourse D addition.
Continental hired defendant AMEC Construction Management, Inc. (“AMEC”), as the
construction manager and a third party, KCF-SHG Incorporated, as the architect.
AMEC was not the general contractor in the general sense of the term. The
subcontractors responsible for the construction and build-out directly contracted for
specific jobs with Continental. AMEC merely oversaw the managerial aspects of the
construction and coordinated the individual contractors. Defendant Forest City Erectors,
Inc. (“Forest City”), fabricated and installed the stairs, which included the stringer.
Defendant Albert M. Higley Company (“Higley”) contracted with Continental as the
“Core, Shell, and Finishes” contractor for the project. Higley was responsible for
installing the steel handrail on the stairs leading to the tunnel between concourses C and
D. Higley subcontracted the fabrication of the steel handrail to defendant Tomco Metal
Fabricating, Inc. (“Tomco”).
{¶ 4} On her way to work on November 24, 2006, Hammond walked toward the
stairs and escalator leading to concourse D. Hammond worked for Continental Airlines
since 1995. As Hammond approached the escalator stairs and, when she was between
the escalator handrails before the first step of the escalator, she noticed six people
halfway down the escalator. Deciding that she could not pass that group of people on
the escalator, Hammond backed out of the escalator. During this process, one other
pedestrian approached the escalator from behind Hammond. Hammond turned to her
left to step around the escalator handrail and move toward the staircase, catching her toe
on the stringer in the process. She tripped and fell down the first few stairs.
{¶ 5} Hammond filed a complaint alleging that Higley, Tomco, AMEC, and
Forest City were negligent in designing or constructing the stringer that caused her fall.
She additionally advanced a premises liability claim against Cleveland as the owner of the
airport. All the defendants filed motions for summary judgment. Prior to Hammond’s
brief in opposition deadline, she filed for an extension of time. The trial court denied
her motion on the basis that any extension would delay the trial date. Hammond then
filed a motion to continue the trial date, which was also denied. Finally, Hammond filed
an unsuccessful motion for leave to file a brief in opposition instanter, with her proposed
brief attached. The trial court granted summary judgment in favor of all defendants. It
is from this decision that Hammond timely appeals, raising four assignments of error,
which provide:
I. The trial court abused its discretion when denying plaintiff’s
motion for a 30-day extension in which to respond to five separate motions
for summary judgment.
II. The trial court abused its discretion when denying plaintiff’s
motion for a 30-day continuance of trial.
III. The trial court abused its discretion when denying plaintiff’s motion for
leave to file, instanter, her memorandum opposing defendants’ motions for
summary judgment.
IV. The trial court erred when [granting] defendants’ motions for summary
judgment.
{¶ 6} Hammond’s first three assignments of error challenge the trial court’s
draconian insistence on maintaining the trial date, set four days after the first year
anniversary of the case being refiled.1 Hammond sought a 30-day extension of time to
respond to all the defendants’ summary judgment motions. Ohio courts have long
recognized that the interests of justice are better served when courts address the merits of
cases. Moore v. Emmanuel Family Training Ctr., Inc., 18 Ohio St.3d 64, 70, 479 N.E.2d
879 (1985). Nonetheless, Hammond is not arguing that she was unable to present the
evidence demonstrating the issues of fact because of the denial of the extension request.
To the contrary, the trial court must have considered the merits of the case by conducting
a review of the record evidence and construing it in favor of the nonmoving party.
Uniform Rental, L.P. v. Longazel, 8th Dist. No. 91536, 2009-Ohio-868, 2009 WL 478620(Feb. 26, 2009); Civ.R. 56(C). Nothing in the record indicates otherwise. Further,
Hammond appealed the summary judgment decision on the merits. We must review the
record de novo, which includes her brief in opposition and any evidence therein. Comer
1
We are cognizant of the fact the general guideline for disposing of tort cases is 24 months
according to the Ohio Supreme Court’s reporting requirements. Sup.R. 39(A); Ohio Supreme
Court Statistical Reporting Information and Forms, Common Pleas Court General Division Form A,
http://www.supremecourt.ohio.gov/ JCS/casemng/default.asp (accessed Jan. 17, 2012).
v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. Therefore, our
resolution of Hammond’s fourth assignment of error is dispositive, which renders her first
three assignments of error moot.
{¶ 7} We afford no deference to the trial court’s decision and independently
review the record de novo to determine whether summary judgment is appropriate.
Hollins v. Shaffer, 182 Ohio App.3d 282, 2009-Ohio-2136, 912 N.E.2d 637, ¶ 12 (8th
Dist.). Under Civ.R. 56(C), summary judgment is proper when the moving party
establishes that
(1) no genuine issue of any material fact remains, (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 construing the
evidence most strongly in favor of the nonmoving party, that conclusion is
adverse to the party against whom the motion for summary judgment is
made. State ex rel. Duncan v. Mentor City Council, 105 Ohio St.3d 372,
2005-Ohio-2163, 826 N.E.2d 832, ¶ 9, citing Temple v. Wean United, Inc.,
50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).
While a party requesting summary judgment bears the initial burden to show the basis of
the motion using the evidence allowed under Civ.R. 56(C), once the moving party
satisfies this burden of production, the nonmoving party must offer specific facts showing
a genuine issue for trial. Dresher v. Burt, 75 Ohio St.3d 280, 293-94, 1996-Ohio-107,
662 N.E.2d 264 (1996).
City of Cleveland
{¶ 8} Hammond advanced a premises liability claim against Cleveland based on
Cleveland’s acquiescence to the existence of the stringer that extended beyond the
handrail, the purported hazard. Cleveland, in pertinent part, claimed the stringer was an
open and obvious hazard, thereby obviating Cleveland’s duty to warn Hammond. On
appeal, Hammond claims that attendant circumstances existed — the presence of one
pedestrian approaching the escalator — that presented a genuine issue of material fact.
She also argued that the stringer was not readily observable according to her and her
expert.
{¶ 9} Initially, we note the parties disagreed as to the standard of care Cleveland,
as landlord, owed Hammond. Cleveland contended that the traditional common law
classifications of invitee, licensee, and trespasser apply. Gladon v. Greater Cleveland
R.T.A., 75 Ohio St.3d 312, 315, 1996-Ohio-137, 662 N.E.2d 287. Cleveland argued that
Hammond was a licensee because of the fact she was an employee on the premises and
therefore Cleveland only owed a duty to avoid wanton or willful misconduct. Hammond
argued that Cleveland, as a landlord in possession, owed her a duty of ordinary care
because she was a business invitee.
{¶ 10} Typically, “[i]n Ohio, the commercial lessor’s liability is governed by
traditional common law principles. Under the common law, one having neither
possession nor control of premises is ordinarily not liable for damages resulting from the
condition of the premises.” Hendrix v. Eighth & Walnut Corp., 1 Ohio St.3d 205, 207,
438 N.E.2d 1149 (1982). Cleveland does not dispute that it was a landlord in possession
of the area where Hammond fell.
Where a lessor has not substantially relinquished to his lessee all occupation
of and control over a portion of the leased premises and where such lessor
has actually exercised his right of occupation of and control over such
portion, such lessor is under the duty to exercise ordinary care with respect
to the condition of such portion and that duty extends to invitees of the
lessee. Brown v. Cleveland Baseball Co., 158 Ohio St. 1, 106 N.E.2d 632(1952).
Thus, a landlord’s duty in such circumstances is governed by negligence in general.
Davies v. Kelley, 112 Ohio St. 122, 146 N.E. 888 (1925), paragraph one of the syllabus.
{¶ 11} Cleveland owed Hammond the duty of reasonable care. However,
application of the open-and-obvious doctrine obviates any duty to warn of an obvious
hazard and prohibits any negligence claim against Cleveland for injuries related to that
hazard. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788
N.E.2d 1088. The open-and-obvious doctrine focuses on the nature of the dangerous
condition itself, rather than the nature of the plaintiff’s conduct in encountering it. Id.“The fact that a plaintiff was unreasonable in choosing to encounter the danger is not
what relieves the property owner of liability. Rather, it is the fact that the condition
itself is so obvious that it absolves the property owner from taking any further action to
protect the plaintiff.” Id. at ¶ 13. The visibility of the hazard is not a subjective
inquiry. Konet v. Mark Glassman, Inc., 11th Dist. No. 2004-L-151, 2005-Ohio-5280,
2005 WL 2416608. The determinative issue is whether the condition was objectively
observable. Id.{¶ 12} In Armstrong, the plaintiff tripped and fell over a shopping cart guardrail at
the entrance of the Best Buy store. The Ohio Supreme Court held that the guardrail in
question was visible to all persons entering the store and found relevant the fact that the
plaintiff had visited the store multiple times, nothing obstructed the plaintiff’s view of the
guardrail, and plaintiff only presented expert testimony stating that the guardrail was
unsafe. The plaintiff’s “expert did not opine that the low guardrail was inherently
dangerous. See Armstrong, 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088.
Rather, the expert stated that the guardrail is a tripping hazard, and that it was ‘not painted
yellow as is typically done to draw one’s attention to a potential trip hazard[.]’”
Armstrong v. Best Buy Co., Inc., 9th Dist. No. 01CA007848, 2001-Ohio-1934, 2001 WL
1581568, *3. The court further noted that, “[t]he suggestion that the area could have
been made safer does not provide evidence that the area as constituted is unreasonably
dangerous.” (Internal citations omitted.) Id., citing Demos v. Toys “R” Us, Inc., 9th
Dist. No. 99CA007404, 2000 WL 877825 (July 5, 2000).
{¶ 13} Hammond argues that both she and her expert stated that the stringer was
not readily apparent and therefore there is an issue of fact as to whether the purported
hazard is open and obvious. Hammond’s expert also opined that the stringer served no
functional purpose and was an unreasonable tripping hazard.
{¶ 14} This case presents the same issues addressed in Armstrong. A review of
the photographs attached to the parties’ trial court briefings reveals that the stringer was
objectively observable. Hammond was familiar with the location, passed through it on
her way to work every day, and was able to identify the stringer in the photographs
attached to her deposition testimony. It was not a latent defect. The only obstruction
Hammond identified was the escalator handrail; however, the escalator could only
obstruct the stringer while Hammond was standing between the escalator handrails.
Nothing obstructed the stringer while she approached the stairs and escalator, and
Hammond does not argue to the contrary. It is undisputed that the area was well lit and
that the stringer was silver and white and contrasted with both the carpet and the metallic
floor immediately preceding the escalator. Further, as in Armstrong, Hammond’s expert
only stated that the stringer was an unacceptable hazard and had no functional purpose.
Whether the stringer served a functional purpose is irrelevant, and Hammond’s expert did
not opine that the stringer was inherently dangerous. The current case does not differ
from the facts of Armstrong, which we are constrained to follow. Accordingly, the trial
court did not err in holding that the stringer was readily observable by a reasonably
prudent person approaching the escalator and in applying the open-and-obvious doctrine.
{¶ 15} Hammond next contends that the single pedestrian approaching the
escalator constituted the attendant circumstance that distracted her attention from the
purported hazard. We find this argument without merit.
{¶ 16} “Attendant circumstances may create a genuine issue of material fact as to
whether a danger was open and obvious.” Armstrong, 99 Ohio St.3d at 82,
2003-Ohio-2573, 788 N.E.2d 1088. “Although there is no precise definition of
‘attendant circumstances,’ they generally include any distraction that would come to the
attention of an invitee in the same circumstances and reduce the degree of care an
ordinary person would exercise at the time.” Carter v. Miles Supermarket, 8th Dist. No.
95024, 2010-Ohio-6365, 2010 WL 5486849, ¶ 18, citing McGuire v. Sears, Roebuck &
Co., 118 Ohio App.3d 494, 498, 693 N.E.2d 807 (1st Dist.1996).
{¶ 17} The fact that a single pedestrian was approaching Hammond from behind is
not the type of attendant circumstance that prevented her from detecting and avoiding the
purported hazard. In fact, Hammond stated that when she backed out of the escalator,
the escalator handrail obscured the stringer, not the pedestrian. More important, this
court has consistently held that the presence of a crowd in and of itself does not present
issues of fact that necessitate resolution through trial. Johnson v. Regal Cinemas, Inc.,
8th Dist. No. 93775, 2010-Ohio-1761, 2010 WL 1611010; Seifert v. Great N. Shopping
Ctr., 8th Dist. No. 74439, 1998 WL 775013 (Nov. 5, 1998). In both Johnson and
Seifert, the plaintiffs unsuccessfully argued that the presence of a crowd presented an
issue of fact. This court held that crowds were normally expected to be encountered in
movie theaters and parking lots, and therefore more than the presence of a crowd of
people is required to establish attendant circumstances. Compare Regal Cinemas at ¶
25-26, with Collins v. McDonald’s Corp., 8th Dist. No. 83282, 2004-Ohio-4074, 2004
WL 1752913, ¶ 16 (finding the fact that the pedestrians actually impeded the plaintiff’s
view of the hazard an important distinction in determining whether the crowd was an
attendant circumstance).
{¶ 18} In this case, the only person near Hammond was the single pedestrian
approaching the escalator from behind Hammond. The pedestrian did not obstruct or
otherwise prevent Hammond from observing the stringer. It is undisputed that there was
no other person present at the escalator when Hammond approached the escalator. If the
presence of a crowd is insufficient to claim that attendant circumstances were present in
Johnson and Seifert, the presence of one individual approaching Hammond from behind,
in and of itself, is similarly insufficient.
{¶ 19} The trial court did not err in granting summary judgment in favor of
Cleveland. There are no genuine issues of material fact, and it appears from the
evidence that reasonable minds can come to but one conclusion adverse to Hammond
when construing the evidence most strongly in her favor; Cleveland’s duty to warn was
obviated based on the open-and-obvious doctrine. Hammond’s arguments to the
contrary are overruled.
AMEC, Higley, and Tomco
{¶ 20} Hammond claims that AMEC, Higley, and Tomco had a duty to notify
Continental of any perceived defects they should have noticed during the construction
phase of the concourse D project, despite the fact they were not involved in the actual
installation or design of the alleged defect. It is undisputed that AMEC, Higley, and
Tomco did not design, construct, or install the stringer. AMEC generally managed the
contractors hired by Continental, but was not active in the design or installation of any
components. Forest City designed and installed the stringer, and KCF-SHG
Incorporated was the architect and designer for the concourse D construction project.
Hammond cites to no case or statutory authority for the proposition that all independent
contractors involved in the construction project owe a plaintiff, such as Hammond, a duty
of care to notify the premises owner or general contractor of any perceived defects
created by another independent contractor.
{¶ 21} To that point, in fact, Hammond relies on Cincinnati Riverfront Coliseum,
Inc. v. McNulty Co., 28 Ohio St.3d 333, 337, 504 N.E.2d 415 (1986), and Plank v.
DePaul Cranes, Inc., 2d Dist. No. 10486, 1988 WL 110312 (Oct. 21, 1988), case law
she expressly claimed was inapplicable based on the fact that both deal with a general
contractor’s liability for injuries to a subcontractor’s employee. We agree with
Hammond that those two cases are inapplicable to her claims against Higley, Tomco, and
AMEC. McNulty addresses liability for a negligent design claim against an architecture
firm that designed the project, and DePaul Cranes actually reaffirms the general
proposition that “[a] general contractor who has not actively participated in the
subcontractor’s work, does not, merely by virtue of its supervisory capacity, owe a duty of
care to employees of the subcontractor who are injured while engaged in inherently
dangerous work.” DePaul Cranes at *6. Neither case establishes that Higley, Tomco,
or AMEC owed Hammond a duty of care.
{¶ 22} Hammond has not provided any authority for the proposition that an
independent contractor owes a third party a duty of care to notify the premises owner or
general contractor of any perceived danger from another independant contractor’s
negligent design or installation. Hammond, therefore, has failed to present citations to
case law or statutory authority in support of her assertions as required by App.R.
16(A)(7). Hammond’s arguments are without merit and must be overruled.
Forest City
{¶ 23} Finally, Hammond claims that the trial court erred in granting summary
judgment in favor of Forest City. In total, her argument is that
[t]he extension of the raised metal stringer beyond the escalator’s handrail
served no structural or other functional purpose and, more significantly,
there was no justification for the extended metal stringer to be raised, i.e.,
not flush with the floor. Forest City’s fabrication and installation of the
metal stringer, which Forest City has not denied, created an unacceptable
hazard and risk to those using the area at and around the down escalator to
the tunnel leading to concourse D.2
There is no citation to the record or any legal authority.
{¶ 24} “It is not the duty of an appellate court to search the record for evidence to
support an appellant’s argument as to any alleged error.” State v. Durham, 8th Dist. No.
94747, 2011-Ohio-2256, 2011 WL 1849409, ¶ 43, citing State v. McGuire, 12th Dist. No.
CA95-01-001, 1996 WL 174609 (Apr. 15, 1996). Hammond again failed to support her
claims with citations to the record, case law, or statutes. App.R. 12(A)(2) and 16(A)(7).
{¶ 25} We accordingly overrule Hammond’s assignments of error pertaining to
Forest City. Hammond has not identified any bases to determine that the trial court
erred in granting summary judgment in Forest City’s favor.
Conclusion
2
We acknowledge that Hammond also addressed whether the open-and-obvious doctrine
applied to Forest City. We need not address this issue. It is well settled that an independent
contractor may not avail itself of the open-and-obvious doctrine as a defense to negligent design or
construction claims. Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 1992-Ohio-42, 597 N.E.2d
504, syllabus.
{¶ 26} The trial court did not err in granting summary judgment in favor of all
defendants. There was no genuine issue of material fact as to whether the stringer was
an open and obvious hazard or whether AMEC, Higley, and Tomco had a duty to notify
the general contractor or the premises owner of any perceived danger created by another’s
alleged negligent design or installation. Finally, Hammond has not properly supported
her assignment of error challenging the summary judgment granted in favor of Forest
City. The judgment of the trial court is affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, PRESIDING JUDGE
KENNETH A. ROCCO, J., and
KATHLEEN ANN KEOUGH, J., CONCUR