[Cite as Wild v. Midwest Gift Assn., Inc., 2018-Ohio-1527.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

Marcia Wild,                                          :

                 Plaintiff-Appellant,                 :
                                                                      No. 17AP-508
v.                                                    :            (C.P.C. No. 15CV-1796)

Midwest Gift Association, Inc., et al.,               :        (REGULAR CALENDAR)

                 Defendants-Appellees.                :



                                            D E C I S I O N

                                      Rendered on April 19, 2018


                 On brief: Scott Elliot Smith, L.P.A., Scott E. Smith, and
                 Nickolas D. Owen, for appellant. Argued: William Mann.

                 On brief: Lane Alton, Michael J. Kelley, and Eric S. Bravo,
                 for appellees, Gennari & Co., and Kathy Gennari. Argued:
                 Michael J. Kelley.

                 On brief: Curry, Roby & Mulvey Co., LLC, Bruce A. Curry,
                 and Trent M. Thacker, for appellees, Midwest Gift
                 Association, Inc., and The Columbus Marketplace. Argued:
                 Trent M. Thacker.

                  APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.
        {¶ 1} Plaintiff-appellant, Marcia Wild, appeals two decisions of the Franklin
County Court of Common Pleas issued on March 30 and June 19, 2017, which together
resulted in granting summary judgment to all defendants in the case and denying her
motions for partial summary judgment. Because the record shows that, when viewing the
evidence before the trial court in a light most favorable to Wild, reasonable minds could
differ on facts material to Wild proving her case, we reverse the trial court's decision
granting summary judgment to all defendants-appellees.
No. 17AP-508                                                                                               2


I. FACTS AND PROCEDURAL POSTURE
        {¶ 2} At the times relevant to this case, Midwest Gift Association, Inc. ("Midwest")
was an association of gift industry vendor representatives that promoted products and took
orders from store proprietors and buyers for retail sale to the public. (Wild Dep. at 10-12,
filed Feb. 9, 2016.) Midwest operated from a permanent location, 7001 Discovery Blvd.,
Dublin, OH 43017, an approximately 65,000-square-foot building, which Midwest leased.
(Feb. 27, 2015 Compl. at ¶ 4; May 1, 2015 Midwest Answer at ¶ 3.) The location was known
as The Columbus Marketplace. (Compl. at ¶ 4; Midwest Answer at ¶ 3.) Each member of
Midwest that desired a show booth subleased that area from Midwest, and it and its
members operated industry shows at The Columbus Marketplace to demonstrate and sell
their various product lines. (Wild Dep. at 13.) Mary Kathleen1 ("Kathy") Gennari/Gennari
& Co. (collectively, "Gennari") and Wild (who does business through an entity not relevant
to this action), were two such sub lessees. (Midwest Answer at ¶ 2.)
        {¶ 3} The Columbus Marketplace was a large warehouse-like structure that was
subdivided by partitions that did not reach all the way to the ceiling. This gave Midwest's
members operating booths or show areas for store buyers to view their product lines.
(Jan. 12, 2016 Gennari Dep. at 14-15, filed Mar 7, 2016.) Gennari and Wild's show areas
were each toward the front of the building and were adjacent to one another on the South
side of an East/West central aisle. (Ex. 1, Gennari Dep. (see A17 & A18).) The overhead
lights for each of their show areas, and also for the entire front portion of the building, were
controlled by breaker box switches on the East wall of a cage-enclosed utility room found
in the North/East corner of Gennari's show area. (Gennari Dep. at 17-19; Exs. 1, 3, 9.)
        {¶ 4} The utility room, as initially constructed, had only one solid wall, the East
wall. Some breaker switches were mounted on the north boundary of the space. The West
and South borders to the space were bounded by chain-link fence and there was a gate
within the South chain-link fence to permit access to the space. (Exs. 1-4, 14, Gennari Dep.)
The East wall was solid from floor to ceiling and permitted no direct or ambient light.
Before the date and time of the events giving rise to this lawsuit, that is, when Wild fell,
Gennari displayed materials and furniture against the chain-link Western and Southern


1 The record at times refers to her as Mary Katherine Gennari. (Gennari Dep. at 1.) But when she introduced

herself at her deposition she self-reported her name as Mary Kathleen Gennari. Id. at 7. As she is in the best
position to know her own name, we shall assume that is the correct name.
No. 17AP-508                                                                              3


fencing, not blocking the gate to her showroom located at the South wall. (Gennari Dep. at
60-61, 75-76; Exs. 2, 14.) Previous to the date when Wild fell, the then director of Midwest
procured the services of an artist to make the subject utility room more "inviting." (Gennari
Dep. at 63-66.) This resulted in cardboard being used to cover electrical equipment on the
North border of the room and on the chain-link Western fencing. (Gennari Dep. at 66-81;
Exs. 2, 4, 18.) With Gennari's displays to the South and the cardboard to the North and
West, ambient light could enter the space only at the South gate and over the top of the
cardboard from the North and the West. The cardboard was approximately eight to ten feet
high. (Gennari Dep. at 81-82.) When the building's overhead lights were off, there was
some emergency lighting in the back of the building, and some natural light could enter the
building through East-facing front windows situated to the South of the gate to the Gennari
showroom. Id. at 52-57; 87-94; Ex. 1.
          {¶ 5} On the morning of April 5, 2013, Wild arrived at The Columbus Marketplace
with a buyer for a local shop. (Wild Dep. at 10, 42.) Although some other people were
present at The Columbus Marketplace, they were in the back of the building and the lights
in the front area were off. (Izworski Dep. at 8, 13-14, filed Feb. 9, 2016.) Wild entered the
utility room through Gennari's show space for the purpose of turning on the lights. (Wild
Dep. at 44, 59.) As a result of either tripping over or treading upon boxes within the dark
utility room, she fell, suffering injuries to her knee and shoulder that required multiple
surgeries. Id. at 67, 88, 91-92.
          {¶ 6} Wild sued Gennari and Midwest on February 27, 2015 for damages for her
injuries. Gennari and Midwest moved for summary judgment against Wild in February of
the following year. (Feb. 9, 2016 Midwest Mot. for Summ. Jgmt.; Feb. 18, 2016 Gennari
Mot. for Summ. Jgmt.) Approximately one month later, Wild also filed motions for partial
summary judgment. (Mar. 9, 2016 Wild Mot. for Summ. Jgmt.) In connection with the
summary judgment motions, the parties filed four depositions with the court, accompanied
by a unified set of 34 exhibits.2 The deposition transcripts were for the depositions of
Marcia Wild (the injured party), Kathy Gennari (a defendant), Georgette Izworski (a fellow
member of Midwest who was at The Columbus Marketplace when Wild fell), and Susan
Wilson (a customer of Wild's who was at The Columbus Marketplace when Wild fell).


2   Exhibits are numbered 1-35 but there is no 28. (Gennari Dep. at 5.)
No. 17AP-508                                                                                  4


       {¶ 7} Wild testified that on April 5, 2013, she was at The Columbus Marketplace
with a customer. (Wild Dep. at 10, 42.) Wild said she told her customer, Wilson, to wait
while she turned the lights on. Id. As was necessary and normal, she went through
Gennari's space to the utility room where the panel box was located. Id. at 44, 59. She
confirmed that there was no artificial light in the caged-in utility room and only a little light
coming in above the cardboard walls near the ceiling. Id. at 51, 56-57. Once she entered
the darkened utility room she tripped on something that she later found out were heavy
boxes of carpet samples and catalogs. Id. at 67. She testified that she believed the boxes
belonged to Gennari based on their contents, which were samples of the lines Gennari
represented. Id. at 70. She testified that she did not see the boxes as she walked through
the darkened utility room and that she did not believe she would have seen them if she had
looked down at the floor because they would have "blended in" with the floor in the dim
light and she was not expecting to see an obstruction in the doorway to the room. Id. at 80-
82. She admitted that she did not personally know how the boxes came to be on the floor
where she tripped over them and, although the utility room entrance was within Gennari's
show area, many people had access to the room. Id. at 86, 119-20.
       {¶ 8} Izworski testified that on April 5, 2013, she and her husband were at their
stall in the rear portion of The Columbus Marketplace when someone came into their shop
area yelling that Wild needed help. (Izworski Dep. at 8, 13-14.) They rushed to the utility
room in Gennari's showroom and initially could not discern Wild among the boxes in the
darkened room. Id. at 15-16. Izworski testified that boxes were scattered around where
Wild lay; the boxes appeared to contain catalogues and rug samples. Id. at 19. Izworski
testified that she observed a Gennari label on the boxes and recognized products from
vendors that Gennari represented. Id. at 19-20. She testified that she cleared away the
boxes, approximately 14 of them, to make a path for the rescue squad to collect Wild and
that she put the boxes outside of the utility room in Gennari's space. Id. at 30, 65-74. Before
the squad arrived, Wild told Izworski that she went in to turn on the lights and tripped over
the boxes. Id. at 32-33. Wild's fall took place around 10:30 or 11:00 a.m. Id. at 37. When
Izworski arrived at home after the accident, she telephoned Tim Dolan, another member of
Midwest who was then the president of Midwest, and told him what had occurred. Id. at
40. His response was, "Damn it. We just had it inspected, and I told Gennaris [sic] that
No. 17AP-508                                                                               5


area had to be clear." Id. at 41. Izworski was explicit that she and Dolan were talking about
the caged utility room and that she informed him that the area was not clear and that she
had personally carried out the boxes that were surrounding Wild on the floor. Id. Izworski
did not know if it was Gennari or her husband who had placed the boxes in the utility room.
Id. at 90-92. But she testified that Gennari regularly stored items in the utility room. Id.
at 85, 91-92.
       {¶ 9} Wilson, Wild's customer, testified that she met Wild at The Columbus
Marketplace in April 2013 to look at some pieces Wilson was thinking of buying on behalf
of her employer, a local gift shop. (Wilson Dep. at 8, 12, filed Mar. 23, 2016.) Wilson
testified that when they entered The Columbus Marketplace building there were some dim
lights on near the back where a janitor and some other people were working, but none were
on near the front. Id. at 15-16. Wild excused herself to go turn on the lights and told Wilson
not to follow because the area was sometimes messy and she did not want Wilson to fall.
Id. at 13-14. Wilson said that Wild told her that whoever it was who put the things in the
electric room had received a warning about cleaning it up. Id. at 18. Wilson testified more
than once that Wild had said that there were boxes and that she had to stand on something
to reach the switch. Id. at 19-21, 37-38, 62. However, Wilson admitted that that she may
have inferred that the switch was located high up. Id. at 50-54; Ex. 3, Wilson Dep. She
testified that she heard a yell and a moan from Wild and went to check on her. (Wilson
Dep. at 20.) She said that when she went to investigate she actually walked into a crate or
box herself before her eyes became acclimated to the dark, but she did not fall. Id. at 21-
24. Wilson testified that as her eyes became accustomed to the dark she could see Wild's
shoes and a large number boxes in disarray around her. Id. at 25, 58-59. She ran and got
help from Izworski and her husband who were working at the back of the building. Id. at
31. When they came to help and turned on the lights, Wilson was able to see that the boxes
contained sample books. Id. at 33-34. She did not look at the labels on the boxes but said
most seemed to be open. Id. at 35.
       {¶ 10} Gennari testified that she is the sole-proprietor of Gennari & Co. and that, at
the time of the fall, she leased space at The Columbus Marketplace. (Gennari Dep. at 11-15,
20.) Gennari acknowledged that the caged utility room (where Wild fell) was located within
her display area and that it was necessary to go into the utility room to turn on the lights
No. 17AP-508                                                                               6


for the front of the building, which also included Wild's space. Id. at 17-19. Although
Gennari maintained that there was enough ambient light to see in the utility room, she
stated that she used a flashlight whenever she went in there. Id. at 54-57, 87-90. She also
admitted that the former director of Midwest had engaged someone to put up coverings
around the caged area to make it more inviting and that the artist had put cardboard along
the North and West walls of the caged area. Id. at 63-70, 77-78, 80-81. Gennari explained
that her display materials, are stacked against the West wall. Id. at 75-76; see also Ex. 2.
As a consequence of these things, the room became darker than originally constructed and
light only entered the room over the top of the cardboard and stacked materials. (Gennari
Dep. at 90-94.)
       {¶ 11} Gennari acknowledged that, although on-site storage facilities were available
to rent, Gennari stored items in the electrical utility room and believed she was permitted
to store things on the floor as long as such articles did not obstruct access to the area. Id.
at 21-22, 111-13, 145-46, 183; Ex. 8. Gennari admitted that the boxes pictured on the floor
of the utility room in exhibit No. 8 were hers but said she was not sure how her vacuum
cleaner had gotten into the utility room. Id. at 113, 138; Ex. 8. She admitted she had been
told by the fire department that she needed to leave an open path to the breaker. Id. at 51,
121. She also testified that the lease agreement between Midwest and the owner of the
building, Discovery MC Investments, L.L.C. ("Discovery"), required that common areas be
kept clear of obstructions. (Gennari Dep. at 99-105; Brittan Aff. Ex. Aiii at 32, Ex. 1,
attached to Mar. 9, 2016 Wild Mot. for Summ. Jgmt.) She confessed that she had no reason
to disbelieve Wild and Izworski about what was in the room on April 5, 2013, but testified
that Wild should have looked where she was going. (Gennari Dep. at 115-22, 144.)
       {¶ 12} Gennari acknowledged she received an e-mail from Julie Dakin (director of
Midwest) shortly after Wild's accident:
              In a message dated 4/7/2013 3:07:19 P.M. Eastern Daylight
              Time, director@thecolumbusmarketplace.com writes:

              Hi Kathy and Joe [Gennari],

              I am going to send out an email to the membership but I
              wanted to let you know what happened last Friday late morning
              at the MarketPlace. Marcia Wild fell when she went to turn on
              the lights. She tripped over boxes that were on the floor.
              Unfortunately, she is in the hospital with a broken knee cap and
No. 17AP-508                                                                              7


                 dislocated shoulder. I have talked to her and she is OK. She
                 will hopefully get out of the hospital tomorrow or Tuesday and
                 might have to go to a rehab center for a while. She is still
                 waiting to hear. The MarketPlace has insurance and I have
                 given Marcia all the details. We just need to get those boxes out
                 of there please. Let me know if you have any questions.

                 Thanks,

                 Julie [Dakin]

(Ex. 22 at 2-3, Gennari Dep.) Gennari admitted that she responded in relevant part as
follows:
                 Dear Julie,

                 We are so upset! We haven't been in Columbus since February,
                 so I am not sure which boxes were in the way. Was this in our
                 office or was it by the lights, in the caged area? Either way, we
                 are responsible for the boxes being there, and I am so sorry.
                 She must be in so much pain.

                 What can we do?

                 ***

                 Kathy [Gennari]

Id. at 2.
        {¶ 13} However, at her deposition Gennari testified that her e-mail was inaccurate
and that she was not responsible for Wild's fall. (Gennari Dep. at 115-16.) She asserted that
her admission of responsibility was based on her incorrect belief that Wild had fallen in her
sales area and not the common area of the utility closet. Id. at 179-80. Although she was
not there on the day of the fall and had not been to The Columbus Marketplace since
February, she stated that there was an open path to the breaker because her sales
representatives, who were present for a show in March, had told her they left an open path
to the breaker. Id. at 104-05, 124-25. Yet she distinguished an "open path" from a clear
path, stating:
                 I don't think just there was a clear path. I think it was an open
                 path, which is different. A path can be small.
No. 17AP-508                                                                                  8


                I think that the room was open and there was an open path,
                because that is what we were instructed to do by the fire chief
                that came and talked to us.

Id. at 121. She also testified that a number of boxes were delivered following the March
show and that people could have been moving stuff without her knowledge. Id. at 148, 153-
54. However, she admitted that only Gennari-associated people would have opened the
boxes as the obstructing boxes pictured in exhibits Nos. 5 through 8 were. Id. at 148, 152-
53; Exs. 5-8.
       {¶ 14} In addition to the deposition testimony and exhibits, Wild submitted three
affidavits with exhibits. One affidavit was from a designee of Discovery, the company which
owned 7001 Discovery Blvd. and from which Midwest leased the building. (Brittan Aff. at
¶ 3-5.) This designee attested that Midwest did not seek or obtain Discovery's permission
to modify the walls of the electrical utility room in the manner that it did. Id. at ¶ 11, 13-14.
This affiant also noted that the lease terms prohibit obstruction of common areas (which
the electrical room was) and operate to the benefit of all sub lessees. Id. at ¶ 6-7, 10.
Another affidavit was from Wild, herself, essentially providing the same testimony that she
gave during her deposition. (Wild Aff. in passim, Ex. 2, attached to Mar. 9, 2016 Wild Mot.
for Summ. Jgmt.) The final affidavit was from a registered architect who is employed as a
forensic architect. (Martin Aff. in passim, Ex. 3, attached to Mar. 9, 2016 Wild Mot. for
Summ. Jgmt.) After reviewing photographs of the scene and Wild's affidavit, the forensic
architect opined, in relevant part:
                The failure of Midwest * * * and Gennari * * * to maintain
                effective light levels in the electrical equipment enclosure
                violated the standard of care for pedestrian safety, and was a
                cause of Wild's fall and injury.

                ***

                The failure of Midwest * * * and Gennari * * * to store boxes
                and other merchandise outside of the electrical equipment
                enclosure as required by code violated the standard of care for
                pedestrian safety, and was a cause of Wild's fall and injury.

Id. at ¶ 26, 31.
       {¶ 15} On April 15, 2016, the trial court granted Midwest and Gennari summary
judgment. It reasoned that Wild's claims essentially consisted of a "slip and fall action" and
No. 17AP-508                                                                            9


that the basic facts were not in dispute. (Apr. 15, 2016 Decision at 1.) It found that the
boxes were an open and obvious hazard because a "reasonable person making a reasonable
inspection would have seen the boxes." Id. at 6. In light of its conclusion that the boxes
were open and obvious, the trial court reasoned that no duty was owed to Wild and granted
summary judgment to Midwest and Gennari. Id.
      {¶ 16} Finding that the trial court "did not seriously consider" a number of factual
nuances in this case that raised genuine questions as to whether the boxes were open and
obvious, this Court reversed. Wild v. Midwest Gift Assn., 10th Dist. No. 16AP-367, 2016-
Ohio-8351, ¶ 10-12.
      {¶ 17} On remand, Midwest once again moved for summary judgment and Wild
once again moved for partial summary judgment. (Jan. 11, 2017 Midwest Mot. for Summ.
Jgmt.; Jan. 25, 2017 Wild Mot. for Summ. Jgmt.) Midwest did not introduce any new
evidentiary materials. Despite this, on March 30, 2017, the trial court granted Midwest's
motion, concluding as follows:
             In the present matter, after reviewing the record in this matter,
             it is clear to the Court that Plaintiff's claims against Defendants
             fail. There is no evidence that Defendants owned or placed the
             boxes upon which Plaintiff tripped and fell. There is no
             evidence that Defendants had actual notice of the boxes upon
             which Plaintiff tripped and fell. Finally, there is no evidence
             that Defendants had constructive notice of the boxes upon
             which Plaintiff tripped and fell. All evidence that Plaintiff does
             have to show Defendants had any knowledge of the boxes is
             pure speculation or hearsay. As such, the Court must grant
             Summary Judgment in Defendants' favor.

(Mar. 30, 2017 Decision at 3.)
      {¶ 18} Five days after the decision in favor of Midwest, Gennari moved for summary
judgment and attached an affidavit of Gennari swearing that neither she nor any of her
representatives "placed any boxes or other property on the floor of the common area utility
room in the path of Ms. Wild" and speculating that some other party having access to the
utility room must have done so. (Gennari Aff. at ¶ 9, attached to Apr. 4, 2017 Gennari Mot.
for Summ. Jgmt.) To her response in opposition, Wild attached the affidavit of Discovery's
property manager. (Looney Aff., Ex. 1, attached to May 3, 2017 Wild Memo in Opp.) The
property manager swore that prior to Wild's accident, he instructed Midwest's director,
Dakin, to have boxes and products removed from the common area utility room. Id. at ¶ 5.
No. 17AP-508                                                                         10


Approximately one week later, on May 10, 2017, Wild moved for partial summary judgment
against Gennari and Midwest and also requested the trial court reconsider its March 30,
2017 grant of summary judgment to Midwest. (May 10, 2017 Wild Mot. to Recons. & for
Summ. Jgmt.)
       {¶ 19} After briefing by all parties, the trial court, on June 19, 2017, entered a
decision granting Gennari summary judgment and denying reconsideration. It reasoned
as follows:
              In the present case, Plaintiff tripped and fell over boxes owned
              by the Gennari Defendants that were placed in a utility room.
              The Court has previously held that Defendants, Midwest Gift
              Association and The Columbus Marketplace, neither placed the
              boxes in the utility room nor did they have knowledge of the
              boxes in the utility room. Therefore, the Court granted
              Summary Judgment in Defendants, Midwest Gift Association
              and The Columbus Marketplace, favor. The question now
              before the Court is: Did the Gennari Defendants place the boxes
              in the utility room or have knowledge of the boxes in the utility
              room? If the evidence shows that the Gennari Defendants did
              one of the above two things, then they will have breached the
              duty of ordinary care owed to Plaintiff.

              Upon review of the evidence, it becomes clear that the Gennari
              Defendants neither placed the boxes in the utility room nor did
              they have knowledge of the boxes in the utility room. The last
              time the Gennari Defendants were at The Columbus
              Marketplace before Plaintiff's accident was March 19, 2013. It
              is undisputed that the boxes were not in the utility room at this
              time. Plaintiff's accident occurred on April 5, 2013. It is
              undisputed that neither the Gennari Defendants nor any
              representatives of the Gennari Defendants were at The
              Columbus Marketplace during this time. Therefore, the
              evidence shows that the Gennari Defendants were not
              responsible for placing the boxes in the utility room.
              Furthermore, there is no evidence to show that the Gennari
              Defendants knew that the boxes were in the utility room before
              Plaintiff's accident. In fact, there is no real evidence in this
              matter to show who actually placed the boxes in the utility
              room. While the Gennari Defendants may have owned the
              boxes upon which Plaintiff fell, there is nothing to show that
              they breached the duty of ordinary care in this matter. As such,
              Summary Judgment must be awarded to the Gennari
              Defendants.

(June 19, 2017 Decision at 3-4.)
No. 17AP-508                                                                              11


       {¶ 20} Wild now appeals both the March 30 and June 19, 2017 decisions of the trial
court granting summary judgment to the defendants, Midwest and Gennari.
II. ASSIGNMENTS OF ERROR
       {¶ 21} Wild assigns two errors for review:
              [1.] THE TRIAL JUDGE ERRED, AS A MATTER OF LAW, BY
              GRANTING SUMMARY JUDGMENT UPON PLAINTIFF-
              APPELLANT'S PREMISES LIABILITY CLAIM AGAINST
              APPELLEE COLUMBUS MARKETPLACE.

              [2.] THE TRIAL JUDGE ERRED, AS A MATTER OF LAW, BY
              GRANTING SUMMARY JUDGMENT UPON PLAINTIFF-
              APPELLANT'S PREMISES LIABILITY CLAIM AGAINST
              APPELLEE GENNARI.

III. DISCUSSION
       {¶ 22} Ohio Civ.R. 56(C) provides that:
              Summary judgment shall be rendered forthwith if the
              pleadings, depositions, answers to interrogatories, written
              admissions, affidavits, transcripts of evidence, and written
              stipulations of fact, if any, timely filed in the action, show that
              there is no genuine issue as to any material fact and that the
              moving party is entitled to judgment as a matter of law.

The Supreme Court of Ohio has explained:
              Summary judgment will be granted only when there remains
              no genuine issue of material fact and, when construing the
              evidence most strongly in favor of the nonmoving party,
              reasonable minds can only conclude that the moving party is
              entitled to judgment as a matter of law. Civ.R. 56(C); Temple v.
              Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 Ohio Op.
              3d 466, 364 N.E.2d 267. The burden of showing that no
              genuine issue of material fact exists falls upon the party who
              files for summary judgment. Dresher v. Burt (1996), 75 Ohio
              St.3d 280, 294, 1996 Ohio 107, 662 N.E.2d 264.

Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, ¶ 10; see also, e.g., Esber Bev. Co. v.
Labatt United States Operating Co., L.L.C., 138 Ohio St.3d 71, 2013-Ohio-4544, ¶ 9.
       {¶ 23} In deciding summary judgment, the trial court must give the nonmoving
party "the benefit of all favorable inferences when evidence is reviewed for the existence of
genuine issues of material facts." Byrd at ¶ 25. When reviewing a trial court's decision on
summary judgment, our review is de novo and we therefore apply the same standards as
No. 17AP-508                                                                              12


the trial court. Westfield Ins. Co. v. Hunter, 128 Ohio St.3d 540, 2011-Ohio-1818, ¶ 12;
Bonacorsi v. Wheeling & Lake Erie Ry., 95 Ohio St.3d 314, 2002-Ohio-2220, ¶ 24.
   A. First Assignment of Error – Whether the Trial Court Erred in Granting
      Summary Judgment to Midwest and Failing to Reconsider that Decision
       {¶ 24} In granting summary judgment to Midwest, the trial court relied on its
finding that there was "no evidence that Defendants had actual notice of the boxes upon
which Plaintiff tripped and fell" and "no evidence that Defendants had constructive notice
of the boxes upon which Plaintiff tripped and fell." (Mar. 30, 2017 Decision at 3.) But upon
our de novo review of the record and when drawing "all favorable inferences" for Wild, there
was evidence that Midwest had notice of the boxes. Byrd at ¶ 25. There is evidence in the
record that, when Izworski arrived at home after the accident, she telephoned Dolan, then
president of Midwest. Izworski stated that she told Dolan that Wild had tripped over boxes
in the caged utility room and injured herself. Id. at 40-41. His response was, "Damn it. We
just had it inspected, and I told Gennaris [sic] that area had to be clear." (Izworski Dep. at
41.) Gennari herself, moreover, admitted that she had been told by the fire department
during an inspection that she had to leave a clear path to the breaker. (Gennari Dep. at 51,
121.) It is also worth noting that Gennari admitted that the director of Midwest engaged
someone to cover the walls of the electrical room with light-blocking cardboard, which
rendered the boxes more difficult to see. Id. at 63-70, 77-78, 80-81, 90-94. These
admissions are sufficient to permit an inference that Midwest was informed, prior to the
accident, that Gennari was placing materials in the darkened utility room in the path to the
breaker.
       {¶ 25} Moreover, after summary judgment was granted but before the trial court
was asked to reconsider, Wild filed an affidavit of the property manager of 7001 Discovery
Blvd. in which he swore that, prior to Wild's accident, he instructed Midwest's director,
Dakin, to have boxes and products removed from the common area utility room. (Looney
Aff. at ¶ 5.) From our review of the record, by the time Wild sought reconsideration of the
trial court's summary judgment in favor of Midwest, there was even more evidence from
which the trial court should have concluded (when properly drawing all inferences in favor
of Wild) that there was a genuine issue of fact as to whether Midwest was on notice of the
hazard created by the boxes stacked in the darkened utility room.
No. 17AP-508                                                                            13


       {¶ 26} The trial court explained its conclusion that there was "no evidence" that
Midwest knew of the hazard by stating that, "[a]ll evidence that Plaintiff does have to show
Defendants had any knowledge of the boxes is pure speculation or hearsay." (Mar. 30, 2017
Decision at 3.) The opinion does not indicate, and we cannot determine, what of the above-
recounted items of evidence the trial court considered to be speculative or unreliable. But,
to the extent it might have considered the statement of Midwest President Tim Dolan
hearsay, we apply Ohio Rule of Evidence 801(D)(2), applicable to "Statements which
are not hearsay":
              Admission by party-opponent. The statement is offered
              against a party and is (a) the party's own statement, in either
              an individual or a representative capacity, or * * * (c) a
              statement by a person authorized by the party to make a
              statement concerning the subject, or (d) a statement by the
              party's agent or servant concerning a matter within the scope
              of the agency or employment, made during the existence of the
              relationship * * *.

(Emphasis sic.) Evid.R. 801(D)(2)(a), (c) and (d). A statement by an organization's
president, when introduced against the organization, is a statement by a party opponent
and therefore not hearsay. See, e.g., IPI, Inc. v. Monaghan, 6th Dist. No. L-07-1101, 2008-
Ohio-975, ¶ 37; Thornton v. Parker, 100 Ohio App.3d 743, 752-54 (10th Dist.1995).
       {¶ 27} There is evidence to suggest that Midwest was aware of the boxes and the
hazard posed by their placement in a dimly lit room. Midwest never produced a deponent
or affiant who attested that Midwest had no awareness of the condition. Midwest was not
entitled to summary judgment. Wild's first assignment of error is sustained and we decline
to consider the trial court's refusal to reconsider summary judgment for Midwest, since
Wild's motion to reconsider is now moot.
   B. Second Assignment of Error – Whether the Trial Court Erred in
      Granting Summary Judgment to Gennari
       {¶ 28} In granting summary judgment to Gennari the trial court made the following
factual findings:
              [T]he Gennari Defendants neither placed the boxes in the
              utility room nor did they have knowledge of the boxes in the
              utility room. The last time the Gennari Defendants were at The
              Columbus Marketplace before Plaintiff's accident was March
              19, 2013. It is undisputed that the boxes were not in the utility
              room at this time. Plaintiff's accident occurred on April 5, 2013.
No. 17AP-508                                                                                 14


              It is undisputed that neither the Gennari Defendants nor any
              representatives of the Gennari Defendants were at The
              Columbus Marketplace during this time. Therefore, the
              evidence shows that the Gennari Defendants were not
              responsible for placing the boxes in the utility room.
              Furthermore, there is no evidence to show that the Gennari
              Defendants knew that the boxes were in the utility room before
              Plaintiff's accident. In fact, there is no real evidence in this
              matter to show who actually placed the boxes in the utility
              room. While the Gennari Defendants may have owned the
              boxes upon which Plaintiff fell, there is nothing to show that
              they breached the duty of ordinary care in this matter.

(June 19, 2017 Decision at 3-4.)
       {¶ 29} We cannot ignore evidence in the record that tends to show that Gennari was
responsible for the boxes being in Wild's path. For example, upon hearing that Wild had
sustained substantial knee and shoulder injuries after tripping over boxes while attempting
to turn on the light, Gennari wrote:
              We haven't been in Columbus since February, so I am not sure
              which boxes were in the way. Was this in our office or was it by
              the lights, in the caged area? Either way, we are responsible for
              the boxes being there, and I am so sorry.

(Emphasis added.) (Ex. 22 at 2, Gennari Dep.). As a direct admission of responsibility by a
party opponent, this evidence was admissible and should have been considered by the trial
court. Evid.R. 801(D)(2)(a). Though Gennari later attempted to walk back her written
statement in her deposition, it is up to a jury, not the trial court, to decide which is the more
credible−her e-mail when she first found out, or her later retraction after she had been sued.
(Gennari Dep. at 115-17.)
       {¶ 30} In addition to the direct admission of responsibility, Gennari said a number
of things during her deposition that, support a required inference in favor of Wild, the
nonmoving party, that Gennari or agents of Gennari had placed the boxes in question in
the darkened utility room. For example, Gennari acknowledged that she and her agents
stored items in the electrical utility room and believed it was permitted to store things on
the floor as long as such articles did not obstruct access to the area. Id. at 21-22, 111-13,
145-46, 183; Ex. 8. She twice admitted she had been told by the fire department that she
needed to leave an open path to the breaker. Id. at 51, 121. She admitted that the boxes
pictured on the floor of the utility room in exhibit No. 8 were hers. Id. at 113, 138; Ex. 8.
No. 17AP-508                                                                              15


Although she testified that a number of boxes were delivered following the March show and
that people could have been moving stuff without her knowledge she admitted that only
Gennari-associated people would have opened the boxes as the allegedly offending boxes
pictured in exhibits Nos. 5 through 8 were. (Gennari Dep. at 148, 152-54; Exs. 5-8.)
       {¶ 31} There was also evidence from other sources. For example, Izworski testified
that she observed a Gennari label on the boxes that she recognized products from vendors
that Gennari represented in the contents, and that there were approximately 14 boxes she
had to clear away to make room for the rescue squad. (Izworski Dep. at 19-20, 30, 65-75.)
Wilson testified that she was able to see that the boxes contained sample books and that
most of the boxes seemed to be open. (Wilson Dep. at 33-35.) Izworski also testified that
when she told the president of Midwest what had occurred his response was, "Damn it. We
just had it inspected, and I told Gennaris [sic] that area had to be clear." (Izworski Dep. at
41.) Taking into consideration all the testimony and drawing all reasonable inferences in
favor of Wild, we cannot say that no genuine issue of material fact remains and, when
construing the evidence most strongly in favor of Wild, Gennari was entitled to summary
judgment as a matter of law. Drawing all reasonable inferences in favor of Wild, one would
properly infer that Gennari had been warned previously about obstructing the utility room
because Gennari had been known to obstruct the utility room. Dakin, director of Midwest,
also seemed to take it as established that Gennari was responsible for the obstructing boxes
when she wrote to Kathy and Joe Gennari in the immediate aftermath of the accident and
said, "We just need to get those boxes out of there please." (Ex. 22 at 3, Gennari Dep.)
Moreover, Gennari's response to Dakin was not a denial. Her response instead was, "[W]e
are responsible for the boxes being there, and I am so sorry." Id. at 2.
       {¶ 32} Under the circumstances, there was ample evidence from which the trial
court, drawing all reasonable inferences in favor of Wild, should have found a genuine issue
of material fact about whether Gennari or agents of Gennari placed the boxes in the
darkened room. Wild's second assignment of error is sustained.
IV. CONCLUSION
       {¶ 33} In our de novo review of the record, we hold that the trial court's summary
judgments in favor of Midwest and Gennari were granted in error. In reviewing the
evidence and in drawing all reasonable inferences therefrom in favor of Wild as required
by Civ.R. 56, we do not find that either Midwest or Gennari was legally entitled to summary
No. 17AP-508                                                                         16


judgment. We sustain both of Wild's assignments of error and reverse the judgments of the
trial court.
                                                    Judgments reversed and remanded.
                          KLATT and HORTON, JJ., concur.
