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Tomplin v. National City Corp.12/10/2004
{ } This accelerated calendar appeal arises from the Trumbull County Court of Common Pleas, wherein the court entered summary judgment in favor of appellees, National City Corporation, d.b.a. National City Bank ( hereafter referred to as "the Bank"), and Alex Downie & Sons Co. ("Downie").
{ } The following facts are derived from the record and are generally not disputed. On May 31, 2000, appellant, Adriana Tomlin, went to the National City Bank branch located on Youngstown Road in Niles, Ohio, in order to pay her utility bills. Appellant observed, upon entering the Bank, renovations had been underway and certain portions of the Bank, including the lobby and vestibule, were in the process of being renovated. The renovations were being performed during open banking hours.
{ } The renovations included the removal of floor tile. Certain areas were still covered with the original flooring, while in other areas the tile was removed, leaving the underfloor exposed. There was a difference in elevation between the tiled areas and the underfloor. In order to create a smoother transition between the tiled areas and the exposed underfloor, carpet runners were placed over the transition areaby Downie, the independent contractor performing the renovations.
{ } When appellant entered the Bank, only one teller window was open to customers. As appellant waited in line, a second teller window was opened. Appellant was motioned over to the second window by the teller and proceeded to step in the direction of the second window. As this occurred, appellant lost her balance and fell to the ground. She sustained injuries to her right ankle, head, left arm, and lower back.
{ } On May 15, 2002, appellant filed a personal injury complaint against the Bank and Downie, as a result of her slip and fall accident. On August 22, 2003, Downie filed a motion for summary judgment, contending that the defect, as alleged, was trivial and, thus, insubstantial as a matter of law, negating any duty owed to appellant by Downie.
{ } On August 27, 2003, the Bank filed a motion for summary judgment, also contending the alleged defect was trivial and, thus, insubstantial as a matter of law, negating any duty owed to appellant under the circumstances. The Bank further asserted appellant had failed to offer any evidence demonstrating that the Bank either created the defect or had any actual or constructive knowledge of the defect.
{ } On September 11, 2003, appellant filed her memorandum in opposition. The Bank subsequently filed a reply brief on September 19, 2003. In a cursory judgment entry dated October 20, 2003, the trial court entered summary judgment in favor of both defendants. Appellant subsequently filed this timely appeal. She presents two assignments of error on appeal. The first assignment of error is:
{ } "The trial court erred to the prejudice of Plaintiff-Appellant in sustaining the motion for summary judgment filed by Defendant-Appellee National City Corporation."
{ } The standard for addressing a motion for summary judgment is set forth in Civ.R. 56(C). In order to prevail, the moving party must establish that: (1) no genuine issue of material fact remains to be litigated; (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 viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the nonmovant. "An appellate court applies a de novo standard of review when determining whether a trial court properly granted summary judgment."
{ } The trial court's abbreviated judgme
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