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Carlson v. City of Canton6/20/2005
JUDGMENT: Affirmed
{ } Plaintiffs-Appellants appeal the trial court's judgment entry granting Defendant-Appellee's Motion for Summary Judgment.
{ } Defendant Appellee is City of Canton.
STATEMENT OF THE FACTS AND CASE
{ } On February 22, 2002, Appellant Barbara J. Carlson, was attending a high school basketball game at the Canton Civil Center. While at the game, she used the ladies restroom. As she was exiting one of the stalls in the restroom facility, she fell. She claims that she stepped onto a recessed drain with a loose cover, her shoe became caught in the drain and she lost her balance and fell onto her right shoulder and the right side of her body. She further claims that her view of the drain was obstructed by the bathroom stall door. As a result of her fall, Appellant suffered injuries and incurred medical expenses.
{ } On February 17, 2004, Appellants filed a Complaint for personal injury against Appellee alleging negligence because of the condition of the drain.
{ } On October 29, 2004, Appellee filed a Motion for Summary Judgment.
{ } On November 15, 2004, Appellants' filed a Motion in Opposition to Appellee's Motion for Summary Judgment.
{ } On November 29, 204, Appellee's filed a Reply to Appellants' Motion in Opposition.
{ } On December 6, 2004, the trial court granted Defendant-Appellee's motion for summary judgment.
{ } Appellants now appeal, assigning the following sole error for review:
ASSIGNMENT OF ERROR
{ } "I. TRIAL COURT ERRED IN GRANTING THE DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT ON THE GROUNDS THAT THERE EXISTED A GENUINE ISSUE OF MATERIAL FACT REGARDING WHETHER A LOOSE DRAIN TILE IN THE RESTROOM AT THE CANTON CIVIC CENTER WAS UNREASONABLY DANGEROUS AND NOT OPEN AND OBVIOUS.
I.
{ } Appellants argue that the trial court erred in granting summary judgment in favor of Appellee. We disagree.
{ } Summary Judgment motions are to be resolved in light of the dictates of Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639, 1996- Ohio-211:
{ } "Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any 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 party against whom the motion for summary judgment is made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274."
{ } As an appellate court reviewing summary judgment motions, we must stand in the shoes of the trial court and review summary judgments on the same standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 506 N.E.2d 212.
{ } A successful negligence claim requires a plaintiff to prove: (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached the duty of care; and (3) as a direct and proximate result of the defendant's breach, the plaintiff suffered injury. See Texler v. D.O. Summers Cleaners (1998), 81 Ohio St.3d 677, 680, 693 N.E.2d 217, 274; Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142, 539 N.E.2d 614, 616; Menifee v. Ohio Welding Products, Inc. (1984), 15
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