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Gavel v. Performance Auto Wash6/27/2002
JUDGMENT: Affirmed.
. David Gavel appeals a decision of the common pleas court granting summary judgment in favor of Performance Auto Wash (Performance). On appeal, he assigns the following as error for our review:
. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT GRANTED THE APPELLEE'S MOTION FOR SUMMARY JUDGMENT BECAUSE THERE REMAINED GENUINE ISSUES OF MATERIAL FACT REGARDING WHETHER THE APPELLEE HAD CONSTRUCTIVE NOTICE OF THE MISSING GRATE AND THE HOLE IN WHICH THE PLAINTIFF/APPELLANT FELL.
. Having reviewed the arguments of the parties and the pertinent law, we conclude no genuine issue of material fact exists and the trial court properly granted summary judgment in favor of Performance.
. On March 14, 1997, Gavel brought his car to a self-serve car wash owned by Performance located at 7220 Brookpark Rd., Cleveland, Ohio. No employees were present at any of the 10 to 12 washing areas. Gavel testified he exited his vehicle, backed up to close the door, stepped into a hole, and fell to the ground. He further testified a grate that should have been covering the hole was missing.
. In August 2000, Gavel initiated a lawsuit against Performance and John and Jane Doe, seeking damages for personal injuries and lost wages. Subsequently, in March 2001, Performance moved for summary judgment, claiming no genuine issues of material fact existed and summary judgment should be granted in their favor as a matter of law. The trial court agreed and Gavel now appeals.
. On appeal, Gavel argues there is sufficient evidence to establish Performance had constructive notice of the missing grate; therefore, genuine issues of material fact remain to be litigated.
. We review the trial court's granting of summary judgment de novo in accordance with the standards set forth in Ohio Civ.R. 56(C).
. Civ.R. 56(C) states in pertinent part:
. * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interroga-tories, written admissions, affi-davits, transcripts of evidence in the pending case, and written stipu-lations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
. Further, the court in Dresher v. Burt stated:
. * a party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact on the essential element(s) of the non-moving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case.
* If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden * to set forth specific facts showing that there is a genuine issue for trial and, if the non-movant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party.
. An owner or occupier of land generally owes a duty to business invitees to exercise ordinary care to maintain the premises in a reasonably safe condition. To recover from a premises owner in an action for personal injury due to the owner's negligence, a plaintiff must show that the owner was responsible for the hazard complained of, that he had actual knowledge of the hazard and negle
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