[Cite as Honabarger v. Wayne Sav. Community Bank , 2013-Ohio-2793.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )

JOHN HONABARGER Appellant

v. WAYNE SAVINGS COMMUNITY BANK, et al. Appellees C.A. No. 12CA0058

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO CASE No. 12-CV-0109

DECISION AND JOURNAL ENTRY Dated: June 28, 2013

HENSAL, Judge. {¶1} Plaintiff-Appellant, John Honabarger, appeals from a judgment of the Wayne County Court of Common Pleas granting summary judgment to Defendants-Appellees, Wayne Savings Community Bank and Chesterland Producti ons, PLL. For the reasons set forth below,

this Court reverses.

I. {¶2} On June 18, 2008, John Honabarger visite d a Wayne Savings Community Bank branch to conduct his banking. As he walked acr oss the parking lot after he exited the building, he slipped on silt that had collected on the pavement. Honabarger’s foot then caught in a hole filled with the silt, which caused him to fall face-first and suffer injury. {¶3} Honabarger filed a complaint for personal injury against Wayne Savings Community Bank, which occupied the premises as a tenant, and Cheste rland Productions, PLL, which owned the property. He al so named two John Doe corporati ons as defendants. From the2

record, it does not appear that service was perfe cted on these unknown corporations. Honabarger alleged that the Defendants neglig ently failed to maintain the park ing lot in a safe condition. He also alleged that the Defendants were negligent for failing to fix the parking lot’s pavement. The Defendants jointly moved for summary judgment on all of Honabarger’s claims, which the trial court granted. Honabarger filed a timely appeal, and raises one assignment of error for our

review.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SINCE GENUINE ISSUES OF MATERIAL FACT EXISTED DEMONSTRATING THAT DEFENDANTS BREACHED THEIR DUTY OF CARE TO MAINTAIN THE PREMISES IN A REASONABLY SAFE CONDITION. {¶4} Honabarger argues that the trial court erred by granting summary judgment in favor of the Defendants. This Court agrees. {¶5} An appellate court reviews an aw ard of summary judgment de novo. Grafton v.

Ohio Edison Co. , 77 Ohio St.3d 102, 105 (1996). “We apply th e same standard as the trial court, viewing the facts in the case in the light most favorable to the non-moving party and resolving any doubt in favor of the non-moving party.” Garner v. Robart , 9th Dist. No. 25427, 2011- Ohio-1519, ¶ 8. Pursuant to Civil Rule 56( C), summary judgment is proper if: (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 party against whom the motion for summary judgment is made, that conc lusion is adverse to that party. Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 327 (1977). The movant must specifically identify the portions of the record that demonstrate an absence of a genuine issue of material3

fact. Dresher v. Burt , 75 Ohio St.3d 280, 293 (1996). If the movant satisfies this initial burden, the nonmoving party has a reciprocal burden to point to specific facts that show a genuine issue

of material fact for trial. Id . The nonmoving party must identify some evidence that establishes a genuine issue of material fact, and may not rely upon the allegations and denials in the pleadings. Sheperd v. City of Akron , 9th Dist. No. 26266, 2012-Ohio-4695, ¶ 10. {¶6} “To prevail in a negligence action, the plai ntiff must show (1) the existence of a duty, (2) a breach of that duty, and (3) an injury proximately resulting from the breach.”

Robinson v. Bates , 112 Ohio St.3d 17, 2006-Ohio-6362, ¶ 21. The legal duty owed to the injured party is dictated by the relationship between the owner of the premises and the injured party. Hidalgo v. Costco Wholesale Corp. , 9th Dist. No. 12CA010191, 2013-Ohio-847, ¶ 7. A business invitee is a “person[ ] who come[s] upon th e premises of another, by invitation, express or implied, for some purpose which is beneficial to the owner.” Mondi v. Stan Hywet Hall & Gardens, Inc. , 9th Dist. No. 25059, 2010-Ohio-2740, ¶ 12, quoting Light v. Ohio Univ. , 28 Ohio St.3d 66, 68 (1986). There is no dispute that Honaba rger was a business invitee. “A shopkeeper owes business invitees a duty of ordinary care in maintaining the premises in a reasonably safe

condition so that its customers are not unnecessa rily and unreasonably exposed to danger.” Paschal v. Rite Aid Pharmacy, Inc. , 18 Ohio St.3d 203, 203 (1985). “A shopkeeper is not, however, an insurer of the customer’s safety.” Id

. {¶7} In granting the motion for summary judgment, the trial court concluded that, “[t]he condition of the parking lot, as described by plaintiff in his deposition and as shown by several photographs was not an unreasonably dangerous condition.” The Defendants argue that the silt and hole were trivial imp erfections expected in any out door concrete surface. Such conditions, the Defendants maintai n, are not unreasonably dangerous.4

{¶8} The Ohio Supreme Court has declined to hold private property owners and occupiers liable as a matter of law for injuries due to minor or trivial imperfections that were not unreasonably dangerous, are commonly encountered and to be expected. Helms v. American Legion, Inc. , 5 Ohio St.2d 60 (1966), syllabus. The Supreme Court held in Kimball v. City of

Cincinnati , 160 Ohio St. 370 (1953) that a height varia tion in pavement leve ls of one-half to three-fourths of an inch is a slight defect as a matter of law that precludes a finding of negligence. Id . at syllabus. Helms reaffirmed the holding in Kimball , and expanded its application to privately owned or occupied property. Helms at 62. The Ohio Supreme Court

clarified in the case of Cash v. Cincinnati , 66 Ohio St.2d 319 (1982) that a court should consider all the attendant circumstances before determining that a defect is insubstantial as a matter of

law. Id . at 324. See also Neura v. Goodwill , 9th Dist. No. 11CA0052-M, 2012-Ohio-2351, ¶ 15. {¶9} Honabarger testified at his deposition that the silt, which he described as a very fine sand and stone combination that is sometimes used in construction, was not a material he would expect to see in a parking lot. He did not initially see the silt as he walked across the parking lot. When Honabarger slipped on the silt, his foot got caught in a hole. This caused silt to become dislodged from the hole. He could both see and feel the silt on the parking lot surface

after he fell. {¶10} Honabarger described the hole in the parkin g lot as “between six and ten inches in length * * * four and five inches in width” and “an inch, maybe two inches deep.” He could not distinguish between the hole and the parking lot su rface itself prior to his fall. While Honabarger banked at that particular Wayne Savings branch approximately once every two weeks for five years, he did not recall parking in that area of the lot before. He never saw the hole prior to the day of his fall, and did not know how long it was there.5

{¶11} Honabarger testified at his deposition about photographs of the scene, which

were offered as defense exhibits. The Defendant s attached copies of photographs taken of the purported hole and what Honabarger acknowledge d was a similar hole in support of their motion for summary judgment. The trial court mentioned in its decision that Honabarger’s testimony, coupled with the photographs, do not demonstr ate an unreasonably dangerous condition. {¶12} Civil Rule 56(C) provides that a cour t may only consider as evidence the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence and written stipulations of fact when ruling on a motion for summary judgment. The record in this case is devoid of any photographs, ot her than copies of the photographs attached to the Defendants’ motion for summary judgment. Th e copy of Honabarger’s deposition filed with the trial court in support of the Defendants’ mo tion for summary judgment does not include any exhibits, including the photographs. In additio n, Honabarger’s testimony did not definitively confirm that the photographs depicted the condition of the parking lot at the time of the incident.

He testified that he wa s “pretty sure” that a photograph he was shown was the hole. He later stated that the photograph was “m ore than likely” of the hole. Honabarger did not take these now missing photographs, and was not pr esent when they were taken. {¶13} There is no sworn testimony, by affidav it or otherwise, upon which this Court can determine that the copies of photos attached to the Defendants’ motion are the same photos that Honabarger testified to in his deposition or that they are copi es of photos taken of the hole that allegedly caused Honabarger to stum ble and then fall to the ground. {¶14} In support of their motion, the Defendants also presented the affidavits of the general partner of Chesterland Productions, PL L, Jerry L. Baker, and the Wayne Savings Community Bank branch manager, who both deny actual knowledge of any hazardous condition.6

Mr. Baker further averred that, “[a]fter [Honaba rger’s] alleged slip and fall, I personally inspected the subject property, including * * * [t he] parking lot, and observed no conditions that posed any threat whatsoever to the safety of persons walking on or traveling through the * * * parking lot.” Mr. Baker, through his affidavit, appears to challenge the existence of the hole and

silt. {¶15} Assuming, arguendo, that Mr. Baker and the branch manager, through their affidavits, do not challenge the existence of the hole and silt, they both aver that the parking lot conditions as they observed them do not rise to the level of a dangerous condition. Their affidavits make an impermissibl e legal conclusion about what constitutes a dange rous condition rather than setting forth specific facts about the parking lot conditions based on personal knowledge. See Civ.R. 56(E). See also Cent. Mtge. Co. v. Elia , 9th Dist. No. 25505, 2011- Ohio-3188, ¶ 15 (affidavit that set forth legal conc lusion was insufficient to meet moving party’s

burden under Dresher to demonstrate a genuine issue of ma terial fact). {¶16} Viewing the evidence in a light most favorable to Honabarger, there is a genuine issue of material fact regarding both the existen ce of the silt and hole and whether those alleged conditions were unreasonably dangerous. Given Honabarger’s testimony about the presence of the silt, the size of the hole, and its concealme nt from view, reasonable minds could conclude there was a hole in the parking lot that constituted an unreasonably dangerous condition. While the trial court was guided in part by the phot ographs attached to the Defendants’ motion for summary judgment, this Court ca nnot conclude from these photogra phs that there is no genuine issue of material fact due to the fact that they are not in the record, and Honabarger did not unequivocally identify the hole in the pictur es as the same one he tripped on.7

{¶17} Because there is a genuine issue of material fact regarding the existence of the hole and the silt, this Court also cannot conclude from the totality of the circumstances that the silt and hole were trivial as a matter of law. Accordingly, the trial court erred in awarding summary judgment to the Defendants on the basis that the condition of the parking lot was not unreasonably dangerous. {¶18} The trial court also granted summary judgment to the Defendants on the basis that Honabarger failed to proffer any evidence that the Defendants knew or should have known about the alleged dangerous parking lot condition. {¶19} “[A]n owner ‘owes a duty * * * to warn any invitees of latent or concealed defects of which the [owner] has or should have knowledge.’” Herbst v. Riverside Community Urban Redevelopment Corp. , 9th Dist. No. 26493, 2013-Ohio-916, ¶ 9, quoting Campbell v. GMS Mgt. Co., Inc. , 9th Dist. No. 16403, 1994 WL 108886, *1 (Mar. 30, 1994). “Constructive notice of a dangerous condition cannot be pr oven without a factual basis th at the hazard existed for a sufficient time to enable the exercise of ordinary care.” Id ., quoting Smith v. Playland Park, Inc. , 9th Dist. No. 16688, 1994 WL 604127, *1 (Nov. 2, 1994). {¶20} Through his affidavit, Mr. Baker from Ch esterland Productions, PLL, avers that: I have personal knowledge of any and all repairs and maintenance performed at the property[.]

* * * Prior to and since [Honabarger’s] alle ged slip and fall, I have personally visited and observed the subject property on nearly a daily basis, and at no time have I ever observed a hazardous , dangerous or otherwise defective condition[.] After [Honabarger’s] alleged slip and fall, I personally inspected the subject property, including the * * * parking lot, and observed no conditions that posed any threat what soever to the safety of persons walking on * * * the subject property[.]8

{¶21} Honabarger argues that the Defendants would have had greater knowledge than he of the alleged dangerous cond ition because it was their parking lot. His testimony indicated that he believed the hole was caused when “something came and chipped away at the hole, probably snow plow or something like that.” {¶22} The Defendants’ affidavits deny actual knowledge of an alleged “unreasonably dangerous condition” in the parkin g lot. However, they did not deny actual knowledge of the conditions of the parking lot as alleged by Honabarger. The Defe ndants cannot simply allege a legal conclusion to me et their burden under Dresher to demonstrate an absence of a genuine

issue of material fact on the issue of actual knowledge of a dangerous condition. Dresher , 75

Ohio St.3d at 293. {¶23} Likewise, the Defendants have not dem onstrated an absence of constructive knowledge of such a condition. “An owner must * * * ‘inspect the premises to discover possible dangerous conditions of which he does not know, and take reasonabl e precautions to protect the invitee from dangers which are foreseeable.’” Greenwald v. Mapleside Farms, Inc. , 9th Dist. No. 03CA0067-M, 2004-Ohio-111, ¶ 7, quoting Perry v. Eastgreen Realty Co. , 53 Ohio St.2d 51, 52 (1978). “An owner is charged with constr uctive knowledge of def ects which would have been revealed by a reasonable inspection of the premises.” Beck v. Camden Place at Tuttle Crossing , 10th Dist. No. 02AP-1370, 2004-Ohio-2989, ¶ 21. But see Hidalgo , 2013-Ohio-847, at ¶ 22 (declining to apply Beck due to the absence of a latent defect). {¶24} The Defendants failed to present any evidence that they performed regular inspections of the property. Mr. Baker averred that he visited the property on “nearly” a daily basis and that he inspected the property afte r Honabarger’s incident. Mr. Baker does not, however, indicate whether his vis its entailed an inspection of th e property, whether the parking9

lot was the subject of any such inspections or how frequently the property was inspected. Further, while there is no evidence how long the alleged dangerous condition existed in the parking lot, the size of the hole itself, as desc ribed by Honabarger, suggested it was a condition that had existed for some time and could reasonably have been discovered through regular, diligent, inspections. {¶25} The Defendants have failed to establish th e absence of a genuine issue of material fact regarding whether or not they had construc tive knowledge of the a lleged dangerous parking lot condition. Because the Defendants failed to meet their threshold burden to identify an absence of a genuine issue of material fact, the burden did not shift to Honabarger to demonstrate that a question of fact remained. Dresher , 75 Ohio St.3d at 293. Since there was a genuine issue of material fact concerning whether the Defendants acted negligently, the trial court erred by granting summary judgment in their favor. {¶26} The Defendants also argued in their moti on for summary judgment and appellate brief that they are precluded from liability on Honabarger’s claims by the open and obvious doctrine. It does not appear from the trial court’s entry that it considered this argument in granting summary judgment. Because the trial court did not consider their argument in the first instance, we decline to do so now. Schmucker v. Kurzenberger , 9th Dist. No. 10CA0045, 2011- Ohio-3741, ¶ 14. Based upon the foregoing, this C ourt sustains Honabarger’s assignment of

error. III. {¶27} Honabarger’s assignment of error is sustained. The judgment of the Wayne County Court of Common Pleas is reversed and the matter is rema nded for proceedings consistent with this opinion.10

Judgment reversed and cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the manda te, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellees.

JENNIFER HENSAL FOR THE COURT

MOORE, P. J. BELFANCE, J. CONCUR.

APPEARANCES: RONALD A. APELT, Attorney at Law, for Appellant. MARK F. FISCHER and JAMES A. DESMITH, Attorneys at Law, for Appellees.