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Mowery v. Shoaf6/12/2002
JUDGMENT: Affirmed.
. This timely appeal arises from a decision of the Columbiana County Court of Common Pleas granting Appellee's motion for summary judgment and dismissing Appellant's negligence claim. In light of the discussion that follows, this Court must affirm the judgment reached by the trial court.
. On September 12, 1995, at approximately 10:00 p.m., Nancy Mowery ("Appellant") sustained injury on property owned by Marjorie Shoaf, dba Salem Heritage Enterprises and dba Salem Towers, Inc. ("Appellee"). Appellee owns an apartment complex located at 1080 North Lincoln Street in Salem, Ohio. Appellant had been visiting briefly with William Porteous, a friend who lived in one of the buildings at the complex. Afterward, Appellant exited via the rear of the building and headed toward her car. As Appellant started across a driveway that serviced the rear of the building, the heel of her right shoe caught in a storm drain causing her to fall.
Appellant had visited the apartment complex to check on Mr. Porteous, who was ill. Appellant and Porteous, both of whom were well into their seventies at the time of the incident, had been seeing each other. When Appellant learned that he was not well, she asked her friend, Louise Gleason, to drive her there so Appellant could bring Porteous some flowers. When the women arrived, Appellant went inside while Ms. Gleason parked the vehicle in a lot behind the building and waited for her to return.
. Appellant visited with Porteous briefly and then headed back toward the car. As she left the building, she immediately noted that it was very dark outside and that the area around the building's exterior was not well lit. Appellant began crossing the driveway on her way to the parking lot when the heel of her shoe slipped into a sewer grate and broke off, causing her to fall forward. In the fall, Appellant injured her arms, right knee and right ankle. Appellant subsequently underwent surgery to repair damage sustained to her ankle.
. On August 22, 1997, Appellant filed a complaint in the Court of Common Pleas alleging that Appellee was negligent in failing to maintain its premises in a reasonably safe condition. Appellant also claimed that Appellee negligently permitted an unreasonably dangerous condition to exist upon the premises, that Appellee failed to warn Appellant of the unreasonably dangerous condition, and that as a direct and proximate consequence of Appellee's negligence, Appellant sustained substantial personal injury .
Eventually, Appellee sought and received leave to file a motion for summary judgment. With the motion, Appellee submitted transcripts from the depositions of Appellee, her husband, tenant William Porteous, on-site manager James Miller, and Appellant. Appellant responded to Appellee's motion, and also submitted her affidavit and that of Louise Gleason. On July 17, 2001, the trial court granted Appellee's motion for summary judgment and dismissed Appellant's complaint.
. In reaching its' decision, the trial court first reasoned that Appellant was a licensee at the time she fell at Appellee's apartment complex because, "she entered the premises by permission or acquiescence for her own pleasure or benefit and not by invitation." (Judgment Entry July 17, 2001, p. 4). The trial court resolved that under the circumstances, Appellee's only duty was to, "refrain from wantonly or willfully causing injury." Id. The trial court acknowledged that under R.C. ยง5321.04(A)(3), the landlord must maintain the common areas of the premises in a safe and sanitary condition. Id. But the court concluded that notwithstanding this duty, Appellee had no duty to illuminate the par
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