Kemper v. Builder's Square, Inc. , 109 Ohio App. 3d 127 ( 1996 )

I must respectfully dissent.

The majority holds that the Kempers, as nonmovants, have met their burden on summary judgment. I disagree. When challenged by Builder's Square to come forward with "specific facts" to show that genuine issues on the essential elements of their claim existed for a trial under Civ.R. 56(E), the Kempers failed to produce evidence of any sort. Wing v. Anchor Media, Ltd. ofTexas (1991), 59 Ohio St. 3d 108, 570 N.E.2d 1095, paragraph three of the syllabus, approving and following Celotex Corp. v.Catrett (1986), 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265.

When considering a motion for summary judgment, although a trial court must construe the evidence most strongly in favor of a nonmovant, Bowen v. Kil-Kare, Inc. (1992), 63 Ohio St. 3d 84,88, 585 N.E.2d 384, 388-389, "unsupported allegations in the pleadings do not suffice to necessitate the denial of a summary judgment. The principal function of Civ.R. 56(E) is to enablemovement beyond allegations in the pleadings, and to analyze the evidence so as to ascertain whether an actual need for a trial exists." (Emphasis added.) Harless v. Willis Day WarehousingCo. (1978), 54 Ohio St. 2d 64, 66, 8 O.O.3d 73, 79,375 N.E.2d 46, 47; see, also, Celotex, 477 U.S. at 323-324,106 S.Ct. at 2553, 91 L.Ed.2d at 273-274. Thus, it is not enough for a nonmovant to claim that the "mere existence of some alleged factual dispute" will defeat "an otherwise properly supported motion for summary judgment; the requirement is that there be nogenuine issue of material fact." (Emphasis sic.) Anderson v.Liberty Lobby, Inc. (1986), 477 U.S. 242, 247-248,106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202, 211; see, also, Barney v. Chi Chi's,Inc. (1992), 84 Ohio App. 3d 40, 43, 616 N.E.2d 269, 271 (citingAnderson).

The fundamental point with summary judgment is that a nonmoving party, who has the burden of proof at trial, has the burden in responding to a motion for summary judgment to rebut directly all contentions that it lacks Civ.R. 56(E) specific facts on the essential elements of its claim. Unrebutted contentions may be considered by a trial court as undisputed issues of fact. Moreover, since the Kempers failed to rebut Builder's Square's arguments with specific facts, the trial court was unable to construe the evidence most strongly in the Kempers' favor because a trial court can consider only facts and evidence, not unsupported allegations, most strongly in favor of a nonmovant.

The record shows that, in response to Builder's Square's motion for summary judgment on the questions of the extent of its duty and of causation, the Kempers relied on the "mere allegations" of their pleadings by iterating their claim that "the failure of Defendant Builder's Square to restrain the wood from falling by the use of a safety strap or some other device constitutes a failure to exercise ordinary care." Instead of refuting Builder's Square's allegation that they lacked proof on essential elements of their claim, the Kempers attempted to deflect that argument by countering that Builder's Square did not meet its burden on summary judgment based on Ms. Kemper's testimony that no other customers were near her when the posts fell.

Ms. Kemper's testimony, however, pertains to whether res ipsaloquitur is appropriate in this case. With respect to res ipsaloquitur, I agree with the majority that this is not a case warranting its application. Regardless of the type of evidence, without Civ.R. 56(C) evidence to support the essential elements of their personal injury suit, the Kempers failed to their meet their burden in responding to a motion for summary judgment.

Although the Kempers argue in their memorandum in opposition to the motion for summary judgment that there are "material" facts in dispute, the dispute they put forward is not material in any respect. The Kempers argue that Builder's Square implies that the incident is a figment of Ms. Kemper's imagination. Aside from the fact that the record does not support their claim, this argument does not create a disputed material fact for trial. In his deposition, Winegardner testified that, although he had no present recollection of the incident, it was his practice to complete an accident report within minutes of an incident. He noted on the report that Ms. Kemper had been cut and that she had told him that wood posts had fallen on her. Winegardner also testified that company policy required employees who witnessed accidents to report them to management on duty. Because the witness statement portion of the accident report is left blank, Winegardner testified that no employees reported anything to him about this incident.

With respect to the Kempers' claim for negligence, Builder's Square does not dispute that it owed a duty of ordinary care to business invitees. The Kempers have put in dispute the extent of the duty of ordinary care by alleging in their complaint that "in failing to store its wood material in a safe manner, in failing to make the premises safe, and in failing to warn plaintiff of dangers in or about the premises," Builder's Square was negligent. Yet they fail to produce any Civ.R. 56(C) evidence to support this allegation in their memorandum in opposition to the motion for summary judgment.

The duty that a merchant owes to any business invitee is the duty to maintain its premises in a reasonably safe condition so that customers are not unnecessarily and unreasonably exposed to danger. Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St. 3d 203, 18 OBR 267, 480 N.E.2d 474. In other words, a merchant has a duty to avoid injuring customers through negligent acts, warn customers of hidden dangers known to the merchant, conduct reasonable inspections of the premises to discover any potential dangers, and take reasonable precautions to protect customers from dangers that are foreseeable from the arrangement or use of the premises. Perry v. Eastgreen Realty Co. (1978),53 Ohio St. 2d 51, 52, 7 O.O.3d 130, 130-131, 372 N.E.2d 335, 336. A merchant, however, is not an insurer of a customer's safety,Paschal at 203, 18 OBR at 267, 480 N.E.2d at 475, meaning that a merchant is not required to inspect everything that might conceivably cause injury.

Furthermore, the burden of proof that a merchant has failed to take reasonable precautions is on an invitee. Perry at 53, 7 O.O.3d at 131, 372 N.E.2d at 336-337. "The mere happening of an accident gives rise to no presumption of negligence, and where one is accidently injured while he is a business guest upon the premises of another, the burden is upon the person injured to show negligence upon the part of such other before he can recover damages from such other." Parras v. Std. Oil Co. (1953),160 Ohio St. 315, 52 Ohio Op. 206, 116 N.E.2d 300, paragraph one of the syllabus. An inference of negligence cannot be based on "mere guess, speculation, or wishful thinking." Allen v. Am.Bldg. Serv., Inc. (Nov. 9, 1993), Montgomery App. No. 13975, unreported, 1993 WL 462208, citing Parras, paragraph two of the syllabus.

The record indicates that the posts were between three and one-half feet and four feet long, were solid wood, and were four inches by four inches at the base. A photograph of a similar post shows that the squared four-inch by four-inch base of the post is nearly one-third of the post's overall length. The turned upper portion of the post appears heavy and substantial. Given the substantial weight and dimensions of the posts, I disagree with the majority that Builder's Square created a hazardous condition by displaying these posts on an upper shelf and also disagree that it was a reasonably foreseeable contingency that these posts would have fallen without some intervening force. It is common sense that relatively short and heavy posts displayed on a stable platform will not topple forward under their own power. In other words, "bodies at rest stay at rest."

Actually, the most likely explanation for the falling posts is that they were accidentally hit by the long, slender wood trim molding being carried in an upright manner by Ms. Kemper herself. By her own testimony, that wood trim was the only possible "intervening force" in the vicinity of the wood posts at the time of the accident.

Given that the invitee has the burden of producing sufficient proof to show that a merchant has failed to take steps that a reasonable merchant would take, and given that the Kempers in bringing this suit have the burden of proof at trial, as nonmovants in responding to a motion for summary judgment, the Kempers were required to present evidence to demonstrate that Builder's Square had not met its duty of ordinary care to withstand summary judgment. Moreover, although I agree with the majority that the Kempers were not required to present expert testimony on the standard of care, in order to survive summary judgment, the Kempers were required to present any evidence, not speculation or conclusory allegations, to show that a genuine issue of material fact existed for trial.

After Builder's Square moved for summary judgment based on the Kempers' failure of proof on the questions of extent of duty and proximate cause, and after the Kempers countered with unsupported allegations and speculation, the trial court properly granted summary judgment. Trial courts must be especially vigilant to guard against claims which are grounded only in speculation and not in evidence. Summary judgment is a proper vehicle for the exercise of such vigilance, and I believe the trial court in this case exercised it properly.

I would affirm.