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Nutoves v. McDonald's Restaurant5/11/2000
JUDGMENT AFFIRMED.
This case came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the record from the lower court, the briefs and the oral arguments of counsel.
In this personal injury action resulting from a slip and fall in a parking lot, plaintiffs-appellants Margo and Gary Nutoves (hereinafter referred to in the singular) appeal from the trial court order that granted the motion for summary judgment filed by defendant-appellee McDonald's Restaurant.
Appellant argues issues of fact remain concerning whether the substance that caused her fall was "open and obvious" as a matter of law. This court disagrees and, therefore, affirms the trial court's order.
Appellant's fall occurred on September 1, 1998, a "warm and sunny day." Appellant had driven her "van" to appellee, which was located on Clark Avenue in the City of Cleveland, near her home. As was her usual custom, she proceeded to the first "drive through" window to place her food order.
Appellant was accompanied in her vehicle by her next-door neighbor. When appellant told appellee's cashier she wanted to place two separate orders, the cashier stated the customers would have to enter the building and place their separate orders at the counter.
Appellant thereupon turned her vehicle into a nearby parking space. A vehicle already occupied a space next to the passenger's side of appellant's van; however, the parking space next to appel-lant's side of her vehicle was empty. Appellant parked, she and her passenger exited their vehicle, and then the two of them proceeded "straight across" the driving area to the door of the restaurant. As it was 11:30 a.m., neither the parking lot nor the restaurant as yet was active with other customers.
Upon receiving their orders, appellant and her passenger left the building and walked across the driving area to the van. Appellant carried only her purse and a cardboard "holder" containing two soft drink cups. When she reached her vehicle, appellant realized it was necessary to discard "two empty cans of Pepsi" in order to place the drinks into the van's cup retainers. Appellant only had partially entered her vehicle. She handed the cardboard "holder" to her companion, grasped the cans, removed her right leg from her van to exit it wholly, and turned toward the restaurant intending to approach the trash container standing next to the building. Appellant took one complete step before she "slid in car oil" that had been deposited in the parking space next to her vehicle. Although appellant attempted to regain her balance, she fell and sustained injury to her back.
Appellant looked at the surface of the driveway after she had fallen. She noticed the "oil slick" in the parking space was "dark black"; thus, it was "darker" than the asphalt. It also was larger in circumference than a "legal sized manila file folder" and covered the asphalt thinly. The oil appeared to have had partially "soaked into the ground" at its "edges" since those were "dry and moist." Appellant stated she was familiar with automotive oil. In her opinion, the oil "had to [have been] there a while," but she also admitted, "It doesn't take long for [oil spills] to soak into the ground."
Appellant and her husband subsequently instituted this action against appellee, alleging her injuries had been caused by appellee's negligence. Following some discovery in the action, appellee filed a motion for summary judgment supported by a copy of appellant's deposition testimony. Although appellant filed a brief in opposition to the motion, attaching thereto appellee's responses to her interrogatories, the trial cou
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