[Cite as Wood v. Crestwood Assoc., L.L.C., 2010-Ohio-1253.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




STEVEN WOOD, ET AL.,

        PLAINTIFFS-APPELLANTS,                                CASE NO. 1-09-37

        v.

CRESTWOOD ASSOCIATES, LLC, ET AL.,                            OPINION

        DEFENDANTS-APPELLEES.




                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CV-2008-0992

                      Judgment Reversed and Cause Remanded

                            Date of Decision: March 29, 2010




APPEARANCES:

        Richard E. Siferd for Appellants

        Courtney J. Trimacco for Appellees
Case No. 1-09-37


PRESTON, J.

       {¶1} Plaintiffs-appellants, Steven and Laura Wood (hereinafter “Steven”

and “Laura”; collectively “the Woods”), appeal the Allen County Court of

Common Pleas’ grant of summary judgment in favor of defendants-appellees,

Crestwood Associates, L.L.C., Newbury Management Co., and Crestwood Mobile

Home Park (hereinafter collectively “Crestwood”). For the reasons that follow,

we reverse.

       {¶2} The Woods own a mobile home in Crestwood Mobile Home Park.

(Steven Wood Depo. at 8). Sometime between 5:15 a.m. to 5:20 a.m. on July 24,

2006, Steven left his mobile home riding his Trek hybrid bicycle to work. (Steven

Wood Depo. at 29, 35); (Laura Wood Depo. at 19). As Steven reached the bottom

of a grade on Crestwood Drive, he lost control of his bicycle, fell off his bicycle,

and shattered part of his leg. (Steven Wood Depo. at 34-35, 47).

       {¶3} On June 24, 2008, the Woods filed a complaint in the Allen County

Court of Common Pleas alleging, in count one, that Crestwood had negligently

permitted an “irregular shaped hole” to exist in its privately owned street, “which

caused [Steven’s] bike to abruptly stop and throw plaintiff to the ground thereby

fracturing his leg.” (Doc. No. 1, at ¶¶1, 3, 7). In count two, Laura alleged a loss of

society, companionship, and services of her husband Steven. (Id. at ¶10).




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       {¶4} On May 1, 2009, Crestwood filed a motion for summary judgment

alleging that Steven could not establish what caused his bicycle accident, and that

Laura’s claim, as a derivative action, must also fail. (Doc. Nos. 28-29).

       {¶5} On June 5, 2009, the Woods filed a response to Crestwood’s motion

arguing that his accident was caused by a groove, or “90-degree arc,” in the

roadway. (Doc. No. 33). Attached to the Woods’ response was a picture of the

patched groove, or “90-degree arc,” which Steven averred was not repaired at the

time of his accident. (Id., Exs. A, 1). Steven averred in his affidavit that the

photograph was an accurate picture of the “circular gouge in the roadway of the

trailer park where [his] bike jerked from under [him].” (Id., Ex. A). Steven further

averred that, “[t]he gouge was 2 to 3 inches deep and was such that a bicycle tire

would just fit and be grabbed by the gouge, forcing the wheel to the right. This is

what happened to me as the bike jerked from under me.” (Id.).

       {¶6} On June 22, 2009, Crestwood filed a reply brief in support of their

motion for summary judgment, arguing that Steven’s affidavit contradicted his

deposition testimony. (Doc. No. 36). Specifically, Crestwood alleged that, at his

deposition, Steven indicated that he did not know what caused the accident, but

that, after he examined the scene some 10 days after the accident, he thought it

was a groove in the roadway. (Id.). Crestwood also argued that the trial court




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should not consider the photograph attached to the Woods’ response since it was

not properly authenticated in Steven’s affidavit. (Id.).

       {¶7} On July 1, 2009, the trial court granted Crestwood’s motion for

summary judgment. (July 1, 2009 JE, Doc. No. 42). The trial court found that

Steven’s deposition testimony indicated that he was unaware of the cause of his

accident; and therefore, this Court’s decision in Weaver v. Steak n’ Shake

Operations was controlling. (Id., citing 3d Dist. No. 1-05-91, 2006-Ohio-2505).

With regard to Steven’s affidavit, the trial court found that “a contradiction

between [Steven’s] deposition testimony and [his] affidavit [exists] because, at

first, plaintiff said he did not know how the crash occurred and then, in the

affidavit, he said exactly what happened.” (Id.). Since Steven failed to provide a

reason for this apparent contradiction, the trial court found that his affidavit could

not create a material issue of fact to preclude summary judgment. (Id., citing Byrd

v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, ¶¶28-29).

       {¶8} On July 20, 2009, the Woods filed their notice of appeal. (Doc. No.

43). The Woods now appeal raising one assignment of error for our review.

       {¶9} In their sole assignment of error, the Woods argue that Steven’s

testimony, when construed in a light most favorable to them as the non-moving

parties, was not contradictory.       The Woods argue that the testimony was

essentially that Steven did not know what the cause of the accident was at the time



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Case No. 1-09-37


of the accident, but later figured out that the cause of the accident was the groove

in the road, which was not patched at the time of the accident. The Woods also

assert that the facts of this case are distinguishable from Weaver v. Steak ‘n Shake

Operations, upon which the trial court relied. Specifically, the Woods contend

that people can fall for no reason other than a misstep, but a bicycle’s handle bars

are not jerked violently out of the operator’s hands for no reason. They also

contend that unlike the defect in Weaver, the defect here is fixed, and there is

photographic evidence and a tacit admission by Crestwood that the defect was

present in the street. Finally, the Woods point out that the manager of Crestwood

admitted that a waterline had been repaired in the place where Steven was injured

the previous winter, and that she had attempted a repair at that same place.

       {¶10} Crestwood, on the other hand, argues that this Court’s prior decision

in Weaver is dispositive. Like the plaintiff in Weaver, Crestwood contends that

Steven’s guess, speculation, or wishful thinking does not create an inference of

negligence.   Specifically, Crestwood argues that during his deposition Steven

testified several times that he did not know what caused the accident, but that

some ten days later he determined that the groove in the road “had to” cause his

accident since it “was the only explanation.”        Crestwood also contends that

Steven’s contradictory affidavit cannot create an issue of material fact.




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Case No. 1-09-37


      {¶11} We review a decision to grant summary judgment de novo. Doe v.

Shaffer (2000), 90 Ohio St.3d 388, 390, 738 N.E.2d 1243. Summary judgment is

proper where there is no genuine issue of material fact, the moving party is

entitled to judgment as a matter of law, and reasonable minds can reach but one

conclusion when viewing the evidence in favor of the non-moving party, and the

conclusion is adverse to the non-moving party. Civ.R. 56(C); State ex rel. Cassels

v. Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 219, 631

N.E.2d 150.

      {¶12} “A park operator who is a party to a rental agreement shall * * *

[k]eep all common areas of the premises in a safe and sanitary condition[.]” R.C.

3733.10(A)(3).     While acknowledging that claims against park operators are

governed under R.C. Chapter 3733 and not R.C. Chapter 5321 (governing

landlords), the Court of Appeals has, nonetheless, applied analogous landlord-

tenant case law when analyzing claims of negligence arising under R.C.

3733.10(A). Sterling v. Stevens, 7th Dist. No. 02 JE 47, 2003-Ohio-5153, ¶¶6-7

(noting the lack of Ohio case law addressing a park operator’s duty under R.C.

3733.10(A)), citing Schwartz v. McAtee (1986), 22 Ohio St.3d 14, 488 N.E.2d

479, paragraph one at the syllabus (“R.C. Chapter 5321 does not govern the

relationship between manufactured home park operators and their tenants.”).

Lewis v. Wall, 11th Dist. No. 2007-A-0048, 2008-Ohio-3387, ¶¶16-18. See, also,



                                      -6-
Case No. 1-09-37


Bundy v. Sky Meadows Trailer Park (Oct. 23, 1989), 12th Dist. No. CA89-01-002,

at *3 (R.C. 3733.10(A)(3) is taken from R.C. Chapter 5321).            The Court of

Appeals and the Ohio Supreme Court have analyzed tenants’ slip and fall-type

injuries that occurred in the common areas using premise liability rules. See, e.g.,

Peterson v. Coffman & Bender (Sept. 15, 2000), 11th Dist. No. 99-P-0059, citing

LaCourse v. Fleitz (1986), 28 Ohio St.3d 209, 210-11, 503 N.E.2d 159.            The

Court of Appeals in Lewis has applied premise liability rules to a mobile home

park resident’s negligence claim filed against a mobile home park operator for

injuries she sustained after she tripped and fell over a retaining wall located on her

lot. 2007-Ohio-3387, at ¶¶3, 48-72 (concluding that the retaining wall was “open

and obvious” so park operator was entitled to judgment as a matter of law). For

these reasons, we turn to this Court’s analogous premise liability cases for

guidance.

       {¶13} As with any negligence action, the plaintiff alleging negligence

arising from a slip and fall-type injury “* * * must show the existence of a duty, a

breach of that duty, and an injury resulting proximately therefrom” to avoid

summary judgment. Adkins v. Chief Supermarket, 3d Dist. No. 11-06-07, 2007-

Ohio-772, ¶10, quoting Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio

St.3d 75, 77, 472 N.E.2d 707. However, “an inference of negligence does not

arise from mere guess, speculation, or wishful thinking, but rather can arise only



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Case No. 1-09-37


upon proof of some fact from which such inference can reasonably be drawn.”

Adkins, 2007-Ohio-772, at ¶9, citing Parras v. Standard Oil Co. (1953), 160 Ohio

St. 315, 116 N.E.2d 300, paragraph two of the syllabus; Weaver v. Steak n’ Shake

Operations, 3d Dist. No. 1-05-91, 2005-Ohio-2505, at *2, citing Parras,

paragraph two of the syllabus. Accordingly, the plaintiff must “show how and

why any injury occurred so as to develop facts from which it can be determined by

a jury that the defendant failed to exercise due care and that such failure was a

proximate cause of the injury.” Adkins, 2007-Ohio-772, at ¶9, citing Boles v.

Montgomery Ward (1950), 153 Ohio St. 381, 389, 92 N.E.2d 9; Stamper v.

Middletown Hosp. Assoc. (1989), 65 Ohio App.3d 65, 67-68, 582 N.E.2d 1040;

Cleveland Athletic Assn. Co. v. Bending (1934), 129 Ohio St. 152, 194 N.E. 6,

paragraph two of the syllabus; J.C. Penny Co. v. Robinson (1934), 128 Ohio St.

626, 193 N.E. 401, paragraph four of the syllabus. “Where the plaintiff, either

personally or by outside witnesses, cannot identify what caused the fall, a finding

of negligence on the part of the defendant is precluded.” Stamper, 65 Ohio App.3d

at 68, citing Bending, 129 Ohio St. 152; Mines v. Russo’s Stop & Shop (Feb. 23,

1989), 8th Dist. No. 55073; Smith v. Reschs Bakery (Dec. 10, 1987), 10th Dist.

No. 87 AP-897.




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Case No. 1-09-37


       {¶14} The issue sub judice is whether the Woods have established facts

upon which a jury could find the proximate cause of Steven’s bicycle accident. At

his deposition, Steven testified, in pertinent part:

       Q: Can you take me through your morning that day, July 24th,
       2006, during when you left your house?
       A: When I left my house on my bike my wife and I were in the
       driveway together. She was taking our dog for a walk. She did
       most mornings, she jogs with our dog. I said good-bye and I left
       on my bike. She went the opposite direction.
            There’s a slight valley in the road right there, so I would
       build up speed in the downhill part to get momentum to go up
       the other side, and I hit this -- well, at the time I didn’t know what
       it was, but it ended up later I saw there was a groove in the road. I
       was just peddling fast and hard and my bicycle just jerked right
       out from underneath me and I crashed in the road.
       ***
       Q: Can you explain to me how you fell, how the bike came
       away from you as well?
       A: I was riding and concentrating on the road ahead and it
       instantly jerked to the right and my momentum -- I just kept
       continuing forward. The only thing I can recall is thinking what
       happened, where did my bike go, because it felt like somebody
       reached out and jerked it from right underneath me.
       ***
       Q: Do you know what caused your bike to crash that day?
       A: I think I do. That morning I didn’t know.
       Q: That morning you didn’t know?
       A: No.
       Q: When did you know?
       A: When I came home from the hospital ten days later, my
       daughter was driving the car and I had her stop so that I could
       look at the road to see what had jerked the bike out from
       underneath me, because I could not figure out why it would have
       done that. There was a groove in the road. It was a little wider
       than my tire and several inches deep. It was a 90-degree arc
       right where my wheel hit and it had taken the bike right out
       from underneath me.


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Case No. 1-09-37


      Q: But you didn’t notice that groove the day of the incident?
      A: No.
      Q: You didn’t see that groove the day of the incident?
      A: No.
      ***
      Q: How do you know that it was this groove in the road that
      you hit if you didn’t notice it that day?
      A: There had been repair done to – I’m assuming it was
      probably a water line underneath the road. They had that area
      excavated. There was an area approximately six foot square that
      they had cut the pavement out, dug up, worked on a pipe. I’m
      assuming it was a pipe because quite often there are city water
      line problems in the park. That repair had been -- they probably
      had it barricaded off previously. It had been repaired and
      repaved. There was new asphalt there. I knew I could assume
      that I could ride over that as the barricades were gone. The
      asphalt had been – the pavement had been redone so it was
      open.
            As I rode over that area, my bike was just jerked right out
      from underneath me and then when I came back from the
      hospital, like I said, I had my daughter stop the car. I looked at
      it to see why that would have happened and in the daylight I
      could see this 90-degree arc. That was the only explanation.
      Q: But you don’t have any recollection that day of hitting the
      pothole?
      A: It wasn’t a pothole, it was a groove in the road.
      Q: You don’t have any recollection that day of hitting that
      groove?
      A: I recollect my bike being jerked out from right underneath
      me as I rode over that freshly paved area.
      ***
      Q: The day that you fell, what did you think caused the fall?
      A: I didn’t know because the road looked open. I knew there
      was this fresh asphalt. I had driven over it, but I couldn’t see
      anything. It wasn’t like there was something physically blocking
      the road. It was a shock actually, because I remember flying
      through the air thinking what the heck happened to my bike. It
      was like something physically jerked it right out from
      underneath me.



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Case No. 1-09-37


      Q: Then after you got out of the hospital you went back to the
      area where you fell?
      A: I knew exactly where it was. I remember seeing the area of
      fresh pavement. I had my daughter stop, then I looked at it and
      that groove was there. It was obvious that was what had jerked
      my bike from underneath me.
      Q: Why was that obvious?
      A: Because of how -- as I was riding along my bike quickly just
      jerked to the right exactly the way that groove in the road -- I
      could remember my bike turning right with the -- * * * My bike
      had turned very suddenly to the right without -- some force had
      forced it out of the strength of my arms holding the handlebars,
      had pulled my front wheel to the right and I could not control it.

(Steven Wood Depo. at 31, 34-35, 61, 63-64, 70-71) (emphasis added).

      {¶15} At her deposition, Laura testified regarding what Steven and her

thought caused the accident as well:

      Q: Did your husband ever tell you how he thought he fell?
      A: I’ll tell you, the strangest thing was he kept saying it’s like
      my bike was jerked out from under me. He kept insisting that,
      and we kind of are comical with each other. I told him that
      probably the hobbits grabbed the front wheel and ripped the
      bike out from under him. I was being silly, but he insisted that it
      had just stopped immediately and I stopped. I said what is he
      talking about. How can that have happened. I stopped and I saw
      that spot in the road and I knew that had to have been it. It was
      just amazing when I saw that and that’s when I knew it had to
      be it.
      Q: He didn’t know at the time though, that --
      A: That that spot was there, I don’t recall him knowing. I’m
      sure we’ve ridden our bikes or walked, but you see these things
      and you don’t -- it wasn’t like it was just some huge pothole that
      stuck out. His front tire had to fit perfect in there. It was weird,
      so strange.
      Q: When he first got to the hospital and you were discussing it
      with him, he didn’t know actually what caused it?



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Case No. 1-09-37


       A: No. He just kept telling me he felt like somebody just
       grabbed my front tire and jerked it and I just went flying
       because you wonder. You just keep wondering how can these
       things happen, but he insisted it and he just kept going back to
       that. I kept thinking about it, and when I stopped and looked at
       the road, oh, my gosh.
       Q: When did you stop to look at the road?
       A: I don’t remember the exact time or day. So much was
       going on. * * * I just remember stopping and seeing it and there
       it was. I was just floored that there was that spot. I’m like oh,
       my gosh, you know what, that’s it.
       Q: But at the time of the accident he didn’t know what the
       cause was?
       A: No. I got down there after he fell and we didn’t have any
       idea. I didn’t have any idea at that time either. I don’t believe
       he did. I can’t imagine, but I don’t know.
       Q: Once you went back you saw that there was an arc in the
       road?
       A: I saw that there was, definitely.
       Q: Were there a lot of potholes in the road?
       A: There’s a lot of potholes and you definitely can avoid them
       on your bike or car when you come through there. * ** I was
       not aware of that spot like that until I stopped after his accident
       ***

(Laura Wood Depo. at 71-73).

       {¶16} The Crestwood Mobile Home Park manager, Loretta Bellman,

testified that maintenance and she were responsible for cold-patching potholes in

the mobile home park. (Bellman Depo. at 5, 15). Bellman testified that the D-

shaped area in the top photograph in plaintiff’s exhibit one was a section of the

road that was re-paved in the winter of 2005 after a frozen water line was repaired.

(Id. at 28-31); (Plaintiff’s Ex. 1). When asked about the small black area in the

top photograph and the lower photograph of plaintiff’s exhibit one, Bellman


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Case No. 1-09-37


testified, “[t]o say what exactly it was, it could have been a little lower than the

pavement or it could have been a small pothole, you know, but I can’t tell you that

directly.” (Bellman Depo. at 31); (Plaintiff’s Ex. 1). With regard to when the

smaller repair was done, Bellman testified that “[i]t could have been done any time

from then until now,” and Bellman was not certain whether the park fixed this

section or the company that repaved the larger section of the road. (Bellman Depo.

at 31, 33). Bellman further testified:

       Q: And you don’t know when it was fixed?
       A: Not just from a picture.
       Q: All right. What is the criteria for fixing a whole? How
       deep does it have to be?
       A: We try to fill them all, but they don’t stay in always.
       Q: All right. Is there a lot of disrepair in the drive?
       A: A lot?
       Q: Yeah.
       A: After winter, you can have them scattered, uh-hum, yes.
       Q: Now, Steve didn’t say where he fell or did he?
       A: He said in front of the office.
       Q: And did you go down and look then?
       A: Yes.
       Q: And what did you see down there?
       A: At that time, I saw nothing where he would have, a pothole
       in front of the office.
       Q: Did you see this black spot or this black area?
       A: No. I can’t -- I shouldn’t -- no, I don’t remember that.
       Q: You don’t remember.
       A: Yes.

(Bellman Depo. at 31-32). Bellman did testify that the area photographed in

plaintiff’s exhibit one was across the street and in front of the park office. (Id. at

35-36).


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Case No. 1-09-37


        {¶17} Although the facts of this case closely resemble those presented in

Weaver v. Steak n’ Shake Operations, the facts here are importantly different. 3d

Dist. No. 1-05-91, 2005-Ohio-2505. In that case, this Court adopted the trial

court’s judgment entry and incorporated it by attaching it to our opinion as exhibit

A. Id. at ¶2. The trial court summarized the pertinent facts in Weaver as follows:

        Mrs. Weaver said that when she walked into the restaurant, she
        did not pay attention to notice any icy spot or the parking bump
        or block dislodged or anything out of the ordinary in the area
        where she fell. She said she “tripped on something,” and
        “something made her fall.” She stated, “if [the parking block]
        was sticking out,” she wouldn’t see it “because if it had snow
        there … you would never see that in a million years.” It is
        uncontroverted that Mrs. Weaver never actually saw the
        parking bump dislodged the night she fell. Mr. Weaver stated
        he has no way of knowing whether the parking bump was
        dislodged when he [sic] wife fell. Photographs of the area taken
        a couple days after the fall show the parking block had been
        dislodged.

Weaver, 2005-Ohio-2505, at *1.        Mrs. Weaver, like the Woods herein, was

appealing the trial court’s grant of summary judgment. Id. at ¶2. After reviewing

the facts and law in that case, the trial court, and ultimately this Court, concluded

that:

        * * * guessing that the parking block was dislodged when Mrs.
        Weaver fell or estimating when the parking block or bump
        became dislodged solely based on when it might have snowed,
        when Marvin Gardens was there to shovel snow, or when
        pictures were taken after the fall would be tantamount to
        speculation and does not establish an issue of material fact. See
        Deditch v. Silverman Bros., Inc. (July 30, 1998), Cuyahoga App.
        No. 73215 (“[The plaintiff] attempted to guess that [the liquid


                                       - 14 -
Case No. 1-09-37


       detergent] had been on the floor for ten minutes based on the
       size of the spill, but that guess did not establish an issue of
       material fact.”).

       To reach the conclusion that the defendants had negligently
       created the hazard of the dislodged parking bump or negligently
       failed to maintain safe premises, the Court would have to engage
       in the impermissible stacking of inference upon inference. In
       order for plaintiffs to avoid summary judgment, it must not only
       be inferred that the [sic] Mrs. Weaver tripped on a dislodged
       parking bump or block, but also inferred that the defendants
       negligently allowed the unsafe condition of the dislodged block
       to remain on it premises where Mrs. Weaver fell, and that the
       dislodged block or bump was the cause of her fall. Furthermore,
       plaintiffs themselves admitted that there was no way to say for
       sure that the block was dislodged when Mrs. Weaver fell or that
       a dislodged block caused the fall. Simply put, plaintiffs have
       failed to show proof of some fact from which such inferences can
       reasonably be drawn.

Weaver, 2005-Ohio-2505.           This Court ultimately concluded that summary

judgment was appropriate because Mrs. Weaver could not identify or explain the

cause of her fall. Id. at *3-4.

       {¶18} The facts here resemble Weaver but are, nonetheless, significantly

different. Although like Mrs. Weaver, Steven admitted that he did not see the

groove or “90 degree arc” in the road on the day of the accident, Steven did

subsequently identify the cause of his accident as being the “90-degree arc” or

groove in the road. (Steven Wood Depo. at 31, 61, 64, 71); (See, also, Complaint,

Doc. No. 1, at ¶¶1, 3, 7). Mrs. Weaver only indicated she “tripped on something,”

and that “something made her fall,” or that, hypothetically, “if [the parking block]



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Case No. 1-09-37


was sticking out,” she wouldn’t see it “because if it had snow there … you would

never see that in a million years.” Id. Mrs. Weaver, however, unlike Steven here,

never directly identified the parking block as the cause of her injury at any time;

she only suggested that it could have been the cause of her injury.

       {¶19} We are also not persuaded by Crestwood’s arguments that causation

here is merely speculative. Although we acknowledge that several of Steven’s

statements during his deposition when viewed in isolation could lead one to

conclude that causation was speculative, when Steven’s deposition testimony is

read as a whole causation is not speculative. For example, when first asked what

caused him to fall Steven stated that he “hit this -- well, at the time I didn’t know

what it was, but it ended up later I saw there was a groove in the road.” (Steven

Wood Depo. at 31) (emphasis added). Later, when asked again what caused his

bike to crash, Steven testified, “I think I do. That morning I didn’t know.” (Id. at

61) (emphasis added). Just after making this statement, however, Steven states

that the cause of his accident was “a 90-degree arc right where my wheel hit and it

had taken the bike right out from underneath me.” (Id. at 61). Like the trial court,

we are presented with a cold deposition transcript, not live testimony, and cannot

determine whether phrases like “I think I do,” which appear throughout Steven’s

deposition testimony are definitive or equivocal statements by evaluating Steven’s

vocal inflections or facial gestures. The standard of review, however, alleviates



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Case No. 1-09-37


this problem because we must evaluate Steven’s testimony in light most favorable

to him as the non-moving party. Civ.R. 56(C); State ex rel. Cassels, 69 Ohio St.3d

at 219. Viewing Steven’s deposition testimony in a light most favorable to him as

the non-moving party, we cannot conclude as a matter of law that his testimony as

to causation is merely speculative.

       {¶20} As a further matter, we cannot agree with the trial court’s conclusion

that Steven’s affidavit did not create a material issue of fact precluding summary

judgment.

       {¶21} In Byrd v. Smith, the Ohio Supreme Court stated:

       We agree with the sentiment expressed in Lemaster v. Circleville
       Long Term Care, Inc. (Feb. 22, 1988), Pickaway App. No. 87 CA
       2, 1988 WL 17187, *3: “Ordinarily under [Civ.R] 56(C), when
       an affidavit is inconsistent with affiant’s prior deposition
       testimony as to material facts and the affidavit neither suggests
       affiant was confused at the deposition nor offers a reason for the
       contradictions in her prior testimony, the affidavit does not
       create a genuine issue of fact which would preclude summary
       judgment.” We hold that an affidavit of a party opposing summary
       judgment that contradicts former deposition testimony of that party
       may not, without sufficient explanation, create a genuine issue of
       material fact to defeat a motion for summary judgment.

110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶28 (emphasis added).

Relying upon Byrd, supra, the trial court concluded that Steven’s affidavit

contradicted his depositional testimony without any explanation, and therefore, did

not create a material issue of fact precluding summary judgment. (July 1, 2009 JE,

Doc. No. 42).


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Case No. 1-09-37


       {¶22} Although the trial court’s citation of law was correct, it erred in its

application of the law to the facts sub judice.         Steven’s affidavit merely

summarized and, if anything, supplemented his depositional testimony. Steven

averred, in pertinent part:

       * * * The photo as Exhibit 1 shows truly and accurately a
       repaired circular gouge in the roadway of the trailer park where
       my bike was jerked from under me. It is the dark curved patch
       in the upper center of the photo. The large older repair is the
       patch from the waterline repair. At the time of my fall the gouge
       had not been repaired. This gouge is in the street in front of the
       office manager’s office for the park. The gouge was 2 to 3 inches
       deep and was such that a bicycle tire would just fit and be
       grabbed by the gouge, forcing the wheel to the right. This is
       what happened to me as the bike jerked from under me.

(Doc. No. 33, Ex. A). During his deposition, Steven testified about the location

and cause of the accident as follows:

       There had been repair done to – I’m assuming it was probably a
       water line underneath the road. They had that area excavated.
       There was an area approximately six foot square that they had
       cut the pavement out, dug up, worked on a pipe. I’m assuming
       it was a pipe because quite often there are city water line
       problems in the park. That repair had been -- they probably had
       it barricaded off previously. It had been repaired and repaved.
       There was new asphalt there. I knew I could assume that I could
       ride over that as the barricades were gone. The asphalt had
       been – the pavement had been redone so it was open.
              As I rode over that area, my bike was just jerked right out
       from underneath me and then when I came back from the
       hospital, like I said, I had my daughter stop the car. I looked at
       it to see why that would have happened and in the daylight I
       could see this 90-degree arc. * * *




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Case No. 1-09-37


(Steven Wood Depo. at 63-64). Steven identified the location of the accident as

being “right in front of the park office.” (Id. at 63).        Steven also testified

concerning the size of the gouge in the road as being “a little wider than my tire

and several inches deep.” (Id. at 61). Steven testified that his wheel hit this groove

or “90-degree arc,” pulled his front bike wheel sharply to the right, and took the

bike right out from underneath him. (Id. at 31, 61, 71-72).          Throughout his

deposition, Steven maintained that this “90-degree arc” or gouge in the road was

the cause of his bicycle accident. As such, we cannot conclude that Steven’s

affidavit contradicted his depositional testimony; and therefore, the affidavit does

raise a question of fact regarding the cause of the accident sufficient to survive

summary judgment.

       {¶23} For all the aforementioned reasons, the Woods’ assignment of error

is sustained.

       {¶24} Having found error prejudicial to the appellant herein in the

particulars assigned and argued, we reverse the judgment of the trial court.

                                                            Judgment Reversed and
                                                                 Cause Remanded

WILLAMOWSKI, P.J. and SHAW, J., concur.

/jlr




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