[Cite as Washington v. Outrage, Inc., 2021-Ohio-2263.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

GEOROME WASHINGTON, : 

 Plaintiff-Appellant, : 

 No. 109825 

 v. : 

 

OUTRAGE, INC., DBA, GEPPETTO’S, : 

 

 Defendant-Appellee. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: July 1, 2021 

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CV-19-915497 

 

Appearances: 

Tyrone E. Reed, for appellant. 

McNeal Schick Archibald & Biro Co., L.P.A., Patrick J. 

Gump and Jesse M. Schmidt, for appellee. 

MARY EILEEN KILBANE, J.: 

Plaintiff-appellant Georome Washington1 (“Washington”) appeals 

from the trial court’s granting of summary judgment in favor of defendant-appellee 

1 According to the appellant’s brief in this case, the appellant’s name is Jerome 

Washington. 
Outrage, Inc., d.b.a., Geppetto’s (“Outrage”) on Washington’s negligence claim 

against Outrage. For the reasons that follow, we affirm. 

Factual and Procedural History 

On August 11, 2018, Washington was a patron at Geppetto’s 

restaurant in South Euclid, Ohio. Geppetto’s is operated by Outrage. Washington 

claimed that he suffered injuries and related expenses when the chair that he was 

sitting in broke, causing him to fall out of the chair. 

Washington was a regular customer at Geppetto’s, visiting roughly 

twice weekly for approximately 30 years. One of Washington’s weekly visits was 

usually for karaoke on Saturday nights, and this was the case on August 11, 2018. 

That night, Washington walked into the restaurant, greeted several friends, pulled 

out a chair, and within seconds of Washington sitting down, the chair broke. 

Washington remembered hitting his lower back, his elbow, the back of his neck, and 

the back of his head when he fell. 

After the fall, Daryl Koran (“Koran”), a Geppetto’s employee, asked 

Washington if he was okay. Koran was familiar with Washington as a regular 

customer, but he had not seen the fall. According to Koran, Washington responded 

that he was fine. When Koran asked Washington if he wanted to go to the hospital, 

Washington declined and said “there’s nothing wrong.” After the fall, Washington 

remained at Geppetto’s for an evening of karaoke. 

On May 16, 2019, as a result of this incident, Washington filed a 

complaint against Outrage. The complaint alleged that Outrage “was negligent and 
reckless when it knew or should have known that allowing a broken chair to remain 

on the premises could result in [Washington] or other customers being injured.” 

Further, the complaint alleged Outrage’s negligence caused Washington pain and 

suffering. Washington sought a judgment against Outrage in excess of $25,000. 

The docket reflects a failure of service on Outrage on June 1, 2019. On 

July 31, 2019, Washington filed a motion for default judgment. On August 20, 2019, 

Outrage filed a brief in opposition to Washington’s motion for default judgment, or 

in the alternative, motion for leave to file an answer instanter. This motion was 

unopposed and granted on September 3, 2019. 

The court also held a case management conference on September 3, 

2019. In a corresponding journal entry, the court set a discovery deadline of 

December 3, 2019 and a dispositive motion deadline of March 15, 2020. The parties 

subsequently exchanged discovery. 

On March 2, 2020, Outrage filed a motion for summary judgment. 

On March 30, 2020, Washington filed a brief in opposition to Outrage’s motion for 

summary judgment. On March 31, 2020, Washington filed a “notice of 

supplemental brief in opposition with exhibits.” Washington attached three exhibits 

to this filing: Exhibit A, interrogatory answers; Exhibit B, an affidavit of Dynea L. 

Latrell; and Exhibit C, a photo of the broken chair. On April 1, 2020, Outrage filed 

a reply brief in support of its motion for summary judgment. 

On June 24, 2020, the trial court granted Outrage’s motion for 

summary judgment, issuing the following journal entry: 
Defendant’s motion for summary judgment, filed 03/02/2020, is 

granted. Pursuant to Civ.R. 56(E), the court is unable to consider 

Exhibits A-C attached to plaintiff’s supplemental brief and affidavit, 

filed 03/31/2020. Additionally, the court is unable to consider Exhibit 

B of plaintiff’s supplemental brief and affidavit, the affidavit of Dynea 

Lewis Latrell, as the affidavit is of an improperly disclosed witness 

provided after the close of discovery. The court, having considered all 

of the evidence and having construed the evidence in a light most 

favorable to the non-moving party, determines that reasonable minds 

can come but to one conclusion, that there are no genuine issues of 

material fact and defendant is entitled to judgment as a matter of law 

as plaintiff cannot prove that defendant breached a duty owed to 

plaintiff as defendant did not have actual or constructive notice of a 

defect. 

It is from this decision that Washington appeals, presenting a single assignment of 

error for our review. 

Legal Analysis 

Washington’s sole assignment of error is as follows: 

A party must follow by the court’s order and make a sincere effort to 

resolve discovery disputes and, if not resolved must then contact the 

court via conference call to discuss the disputed issues as directed, the 

trial court errs in granting the moving party’s motion for summary 

judgment without reviewing the non-moving party’s brief in 

[opposition] in the most favorable light. 

Thus, Washington’s argument on appeal challenges both the trial court’s evidentiary 

decision not to consider the exhibits he filed on March 31, 2020, and the trial court’s 

corresponding summary judgment decision. 

I. Evidentiary Decision 

The decision to admit or exclude evidence lies within the sound 

discretion of the trial court, and an appellate court will not disturb such a decision 

absent an abuse of discretion. Taylor-Stephens v. Rite Aid of Ohio, 8th Dist. 
Cuyahoga No. 106324, 2018-Ohio-4714, ¶ 24, citing State v. Gale, 8th Dist. 

Cuyahoga No. 94872, 2011-Ohio-1236, ¶ 12. An abuse of discretion connotes more 

than an error of law or judgment; it implies a decision that is unreasonable, 

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 

N.E.2d 1140 (1983). 

Washington argues that Civ.R. 56(C) requires that a trial court 

thoroughly examine appropriate materials filed by the parties before ruling on a 

motion for summary judgment. Further, Civ.R. 56(E) permits the court to allow 

affidavits to be supplemented or opposed by further affidavits. Washington argues 

that by declining to consider the exhibits attached to his March 31 filing, the trial 

court failed to carry out its mandatory duty under Civ.R. 56. We disagree. 

With respect to Exhibit A, Washington submitted various responses 

to interrogatories, as well as what appear to be medical records. Civ.R. 56(E) 

provides: 

Form of affidavits; further testimony; defense required. Supporting 

and opposing affidavits shall be made on personal knowledge, shall set 

forth such facts as would be admissible in evidence, and shall show 

affirmatively that the affiant is competent to testify to the matters 

stated in the affidavit. Sworn or certified copies of all papers or parts 

of papers referred to in an affidavit shall be attached to or served with 

the affidavit. The court may permit affidavits to be supplemented or 

opposed by depositions or by further affidavits. When a motion for 

summary judgment is made and supported as provided in this rule, and 

adverse party may not rest upon the mere allegations or denials of the 

party’s pleadings, but the party’s response, by affidavit or as otherwise 

provided in this rule, must set forth specific facts showing that there is 

a genuine issue for trial. If the party does not so respond, summary 

judgment, if appropriate, shall be entered against the party. 
Further, Ohio case law is clear that “documents submitted in opposition to a motion 

for summary judgment must be sworn, certified, or authenticated by affidavit to be 

considered by the trial court in determining whether a genuine issue of material fact 

exists for trial.” Smith v. Gold-Kaplan, 8th Dist. Cuyahoga No. 100015, 2014-Ohio1424, ¶ 23, citing Rilley v. Brimfield, 11th Dist. Portage No. 2009-P-0036, 2010-

Ohio-5181, ¶ 66. Exhibit A was submitted without the required sworn verification 

from Washington. To the extent that Exhibit A also includes a narrative report from 

a medical professional who treated Washington, this was also not properly sworn as 

required by Civ.R. 56(E). Therefore, the court did not abuse its discretion in 

declining to consider Exhibit A. 

Exhibit B is an affidavit executed by Dynea Lewis Latrell on March 

30, 2020. In an earlier response to an interrogatory, Washington identified “Dee 

Lewis” as a witness to the event. Washington’s response also stated that he would 

provide an address for this witness, but nothing in the record indicates that he did 

so. On appeal, Washington argues Latrell, who was married in the months between 

the interrogatory response and the affidavit were submitted, used her married name 

on the affidavit. This does not change the fact that prior to submitting the affidavit, 

Washington had not provided Outrage with the witness’s legal name or accurate 

contact information. Her first name was listed as “Dee” rather than “Dynea,” Lewis 

is a fairly common last name, and Outrage had no other means of identifying or 

contacting her. Thus, Washington had not identified this witness with her proper 

legal name until approximately four months after the trial court’s discovery 
deadline. Therefore, the court did not abuse its discretion in declining to consider 

Exhibit B. 

With respect to Exhibit C, which Washington claims is a photo of the 

broken chair, we note that the image as it appears in our record is almost entirely 

black. It is not clear that the image depicts a chair, let alone a broken chair. 

Therefore, this exhibit is irrelevant to the trial court’s summary judgment 

determination. 

In light of the foregoing, we cannot conclude that the trial court’s 

decision not to consider these exhibits was unreasonable, arbitrary, or 

unconscionable. 

II. Summary Judgment 

We review a trial court’s summary judgment decision de novo, 

applying the same standard that the trial court applies under Civ.R. 56(C). Grafton 

v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Under Civ.R. 

56(C), summary judgment is appropriate when (1) there is no genuine issue of 

material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) 

after construing the evidence most favorably for the party against whom the motion 

is made, reasonable minds can reach only a conclusion that is adverse to the 

nonmoving party. Civ.R. 56(C). 

On a motion for summary judgment, the moving party carries an 

initial burden of identifying specific facts in the record that demonstrate entitlement 

to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 
264 (1996). If the moving party fails to meet this burden, summary judgment is not 

appropriate; if the moving party meets this burden, the nonmoving party must then 

point to evidence of specific facts in the record demonstrating the existence of a 

genuine issue of material fact for trial. Id. at 293. If the nonmoving party fails to 

meet this burden, summary judgment is appropriate. Id. 

To prevail on a negligence claim, a party must show the existence of a 

duty, a breach of that duty, and an injury proximately resulting from that breach. 

Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, 857 N.E.2d 1195, ¶ 21, citing 

Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 472 N.E.2d 707 (1984). “The 

scope of the duty owed by a landowner is dependent upon the status of the person 

who enters upon the land, i.e., whether he is a trespasser, licensee, or invitee.” 

Skowronski v. Waterford Crossing Homeowners’ Assn., 8th Dist. Cuyahoga No. 

96144, 2011-Ohio-3693, ¶ 11, citing Shump v. First Continental-Robinwood Assocs., 

71 Ohio St.3d 414, 644 N.E.2d 291. 

Here, neither party disputes that Washington was an invitee at 

Geppetto’s. “It is well-settled that a landowner owes an invitee the duty to exercise 

ordinary and reasonable care, which includes keeping the premises in a reasonably 

safe condition and warning the invitee of latent or concealed defects of which the 

landowner has or should have knowledge.” Caldwell v. Greek Corp., 6th Dist. Lucas 

No. L-96-397, 1997 Ohio App. LEXIS 4184, 5 (Sept. 19, 1997), citing Scheibel v. 

Lipton 156 Ohio St. 308, 323, 102 N.E.2d 453 (1951). This duty is predicated on a 

superior knowledge of the dangers of the premises. Id., citing Debie v. Cochran 
Pharmacy-Berwick, Inc., 11 Ohio St.2d 38, 40, 227 N.E.2d 603 (1967). Therefore, 

“where negligence revolves around the question of the existence of a hazard or 

defect, [that the landowner had] notice, either actual or constructive of such hazard 

or defect, is a prerequisite to the duty of reasonable care.” Id., citing Heckert v. 

Patrick, 15 Ohio St.3d 402, 405, 473 N.E.2d 1204 (1984). 

Thus, the issue we must resolve is whether Outrage had actual or 

constructive notice of the defect. If Outrage did not have actual or constructive 

notice of the defect — the allegedly damaged chair — it had no duty to warn 

Washington. Generally, notice that is communicated directly to or received by a 

responsible party constitutes actual notice. Silverman v. Cleveland, 8th Dist. 

Cuyahoga No. 109549, 2021-Ohio-688, ¶ 17, citing Jenkins v. Ohio Dept. of Rehab. 

& Corr., 10th Dist. Franklin No. 12AP-787, 2013-Ohio-5106, ¶ 12, and Cleveland v. 

Amato, 123 Ohio St. 575, 577, 176 N.E. 227 (1931). A person has constructive notice 

of a defect when the defect existed for such a period of time that it would have been 

discovered in the exercise of reasonable care. Todd v. Cleveland, 8th Dist. Cuyahoga 

No. 98333, 2013-Ohio-101, ¶ 24, citing Bello v. Cleveland, 106 Ohio St. 94, 100, 138 

N.E. 526 (1922). 

Washington argues that the chair in question was missing at least one 

rung before it collapsed under him. Further, Koran stated that restaurant staff 

pulled the chairs out nightly to sweep and mop, claiming that “if there was 

something wrong with the chair, it would have been noticed and addressed to me.” 
Thus, Washington argues that Geppetto’s should have known of the defect in the 

chair. We disagree. 

The evidence Washington submitted to support his argument that the 

chair was broken includes an unclear photograph and an affidavit from a witness 

that, as described above, violated both Civ.R. 56(E) and the court’s discovery cutoff. Further, with respect to the photograph, it is unclear how a photograph allegedly 

showing a broken chair, taken after the chair collapsed beneath Washington, would 

support Washington’s argument that Outrage had actual or constructive notice of 

the defect. It is particularly unclear in the context of constructive notice, which 

requires evidence that the condition existed for “such a length of time that the owner 

or [its] agent’s failure to warn against it or remove it resulted from their failure to 

exercise ordinary care.” Jenkins at ¶ 12, quoting Presley v. Norwood, 36 Ohio St.2d 

29, 31-32, 303 N.E.2d 81 (1973). 

Outrage presented uncontested evidence that restaurant employees 

checked the chairs daily. Washington also stated in his deposition that in his many 

visits to the restaurant over the course of 30 years, he had never seen a chair collapse 

as it did beneath him. Following our thorough review of the record, we conclude 

that the record failed to establish a genuine issue of material fact that Outrage knew 

or should have known of a problem with the chair prior to its collapse beneath 

Washington. 

Because there is no genuine issue of material fact as to Washington’s 

negligence claim against Outrage, and Outrage is entitled to judgment as a matter 
of law, the trial court’s granting of summary judgment in favor of Outrage was 

proper. 

Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure. 

 

MARY EILEEN KILBANE, JUDGE 

ANITA LASTER MAYS, P.J., and 

KATHLEEN ANN KEOUGH, J., CONCUR