Opinion
No. 106372
08-02-2018
ANTHONY J. GRADY PLAINTIFF-APPELLANT v. KARVO, INC., ET AL. DEFENDANTS - APPELLEES
ATTORNEYS FOR APPELLANT Doron M. Kalir Kenneth J. Kowalski Cleveland Marshall College of Law Civil Litigation Clinic 2121 Euclid Avenue, LB 138 Cleveland, OH 44115 ATTORNEYS FOR APPELLEES William M. Kovach Kathleen M. Guarente & Associates Park Center Plaza II, Suite 450 6150 Oak Tree Boulevard Independence, OH 44131 Paul D. Eklund David Sherman Collins, Roche, Utley & Garner, L.L.C. 800 Westpoint Drive, Suite 1100 Cleveland, OH 44145
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-16-861060 BEFORE: Stewart, P.J., Boyle, J., and Celebrezze, J.
ATTORNEYS FOR APPELLANT
Doron M. Kalir
Kenneth J. Kowalski
Cleveland Marshall College of Law
Civil Litigation Clinic
2121 Euclid Avenue, LB 138
Cleveland, OH 44115
ATTORNEYS FOR APPELLEES
William M. Kovach
Kathleen M. Guarente & Associates
Park Center Plaza II, Suite 450
6150 Oak Tree Boulevard
Independence, OH 44131 Paul D. Eklund
David Sherman
Collins, Roche, Utley & Garner, L.L.C.
800 Westpoint Drive, Suite 1100
Cleveland, OH 44145 MELODY J. STEWART, P.J.:
{¶1} Plaintiff-appellant Anthony J. Grady appeals after the trial court granted summary judgment to codefendants-appellees Karvo Companies, Inc. and Trafftech, Inc. in a negligence action brought by Grady after he was injured following a trip and fall.
{¶2} Trafftech entered into a subcontract with Karvo to install traffic control devices, pedestrian controls, and pedestrian lighting as part of a larger intersection and sidewalk reconstruction project for the city of Shaker Heights. This project occurred at the intersection of Warrensville Center Road and Chagrin Boulevard.
{¶3} As part of the project, Trafftech installed "pull boxes" into the sidewalk at that intersection. In affidavits submitted with its motion for summary judgment, Trafftech explains that a pull box houses wires and controls for the lights at the intersection. When its lid is attached, a pull box is flush with the surface of the sidewalk. The lid is secured to the body of the pull box with bolts. The holes for the bolts are countersunk, such that the bolts are flush with the surface of the lid before they are tightened. After the bolts are tightened, they are sunk about 3/4 to an inch into the lid.
{¶4} Approximately one month after Trafftech installed the pull boxes at the intersection, Grady was running to catch a bus. When he crossed over one of the pull boxes, he tripped on a bolt that protruded above the surface of the lid. Grady sustained injuries from his fall.
{¶5} In his sole assignment of error, Grady argues that the trial court erred in granting the motion for summary judgment against him because a genuine issue of material fact exists. We find no error and affirm.
{¶6} We review summary judgment rulings de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241. Civ.R. 56 provides that a court may grant summary judgment when "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Summary judgment is appropriate where "reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made." Id.
{¶7} The party seeking summary judgment bears the initial burden of identifying facts in the record showing it is entitled to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 1996-Ohio-107, 662 N.E.2d 264. The moving party is not required to put this evidence on the record so long as the evidence is there. Id. at 293. If the moving party meets its initial burden, showing it is entitled to summary judgment, the burden then shifts to the nonmoving party to establish that there is evidence showing that summary judgment is inappropriate: "'[the nonmoving party] may not rest upon the mere allegations or denials of his pleadings, but his response * * * must set forth specific facts showing that there is a genuine issue for trial.'" Id. at 293, quoting Civ.R. 56(E). If the nonmoving party fails to establish this then summary judgment is appropriate. Id.
{¶8} Trafftech presented evidence establishing that when the pull box in question was installed a month earlier, the lid was secure and that none of the bolts were protruding. Trafftech also presented evidence that when a pull box lid is not secured, its bolts will nevertheless be flush with the surface. Additionally, in his answers to interrogatories, Grady had no knowledge of whether Trafftech had been advised about the protruding screw prior to his fall.
{¶9} In opposition to the motion, Grady submitted a photograph of the pull box taken days after his injury. The photograph depicts a pull box with a bolt protruding from the lid. However, there is nothing in the record that shows the lid was negligently attached, that either Trafftech or Karvo caused the bolt to protrude from the lid, or that either had any contact with the pull box after it was installed. Instead, Grady merely asserts that "[i]t would take some kind of tool or device to tamper with this bolt," and that it is unlikely that the bolt reached this state "on its own or by someone unknown person [sic.]."
{¶10} Viewing the evidence in a light most favorable to Grady, there is nothing to establish either Trafftech or Karvo proximately caused his injury. Grady's photograph could be viewed as showing that the bolt was protruding from the pull box lid when he tripped. It does not, however, establish that either Karvo or Trafftech was responsible for the bolt protruding or knew of its condition and failed to rectify it. See Boles v. Montgomery Ward & Co., 153 Ohio St. 381, 388-389, 92 N.E.2d 9 (1950) ("It is incumbent on the plaintiff to show how and why an injury occurred — to develop facts from which it can be determined by the jury that the defendant failed to exercise due care and that such failure was a proximate cause of the injury.").
{¶11} Grady argues that the photograph establishes that the appellees were responsible for the condition of the protruding bolt. He asserts that the doctrine of res ipsa loquitur applies: that the raised bolt from the pull box "literally and legally speaks for itself."
To warrant application of [res ipsa loquitur] a plaintiff must adduce evidence in support of two conclusions: "(1) [t]hat the instrumentality causing the injury, was at the time of the injury, or at the time of the creation of the condition causing the injury, under the exclusive management and control of the defendant; and (2) that the injury occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed."Hake v. George Wiedemann Brewing Co., 23 Ohio St.2d 65, 66-67, 262 N.E.2d 703 (1970) (citing cases).
{¶12} Grady presented no evidence to establish that the pull box or the bolt was under the exclusive management and control of Trafftech or Karvo after the pull box was installed. Based on the record before us, the trial court properly granted summary judgment in favor of the appellees.
{¶13} Judgment affirmed.
It is ordered that appellees recover of 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. /s/_________
MELODY J. STEWART, PRESIDING JUDGE MARY J. BOYLE, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR