[Cite as Gregory v. Towne Properties, Inc., 2015-Ohio-443.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

STEVEN W. GREGORY                                      :
                                                       :
        Plaintiff-Appellant                            :      Appellate Case No. 26410
                                                       :
v.                                                     :      Trial Court Case No. 2013-CV-07846
                                                       :
TOWNE PROPERTIES, INC., ET AL.                         :      (Civil Appeal from
                                                       :      Common Pleas Court)
        Defendant-Appellee                             :
                                                       :

                                               ...........

                                               OPINION

                           Rendered on the 6th day of February, 2015.

                                               ...........

SEAN BRINKMAN, Atty. Reg. No. 0088253, AARON G. DURDEN, Atty. Reg. No.
0039862, 10 West Monument Avenue, Dayton, Ohio 45402
     Attorneys for Plaintiff-Appellant

ROBERT W. HOJNOSKI, Atty. Reg. No. 0070062, IAN MITCHELL, Atty. Reg. No.
0090643, 525 Vine Street, Suite 1700, Cincinnati, Ohio 45202
     Attorneys for Defendant-Appellee

                                             .............
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WELBAUM, J.



       {¶ 1} Plaintiff-Appellant, Steven Gregory, appeals from a trial court decision

granting summary judgment in favor of Defendants-Appellees, Towne Properties, Inc.,

Town Properties, LTD., and Park Layne Apartments (collectively “Park Layne”).             In

support of his appeal, Gregory contends that the trial court erred in denying his Civ.R.

56(F) request. Gregory also contends that the trial court erred in granting summary

judgment in favor of Park Layne.

       {¶ 2} We conclude that the trial court did not err in either regard. First, Gregory

failed to comply with the requirements of Civ.R. 56(F).        In addition, there were no

genuine issues of material fact regarding Park Layne’s liability for the injury sustained by

Gregory. Accordingly, the judgment of the trial court will be affirmed.



                               I. Facts and Course of Proceedings

       {¶ 3} The following undisputed facts are revealed in the materials submitted in

connection with Park Layne’s motion for summary judgment. Between February 2008

and June 1, 2013, Steven Gregory was employed as a newspaper deliveryman. During

that time, he delivered newspapers to residents of Park Layne seven days a week.

Gregory had a key to the apartment building. As soon as Gregory arrived each day, he

placed a newspaper on the doorman’s desk. He then took the elevator to the 11th floor

and began delivering newspapers. Gregory then worked his way down to the first floor.

       {¶ 4} On June 1, 2013, Gregory followed his usual routine, beginning with

deliveries on the 11th floor. He took the elevator from the third to the second floor, and
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then took the back stairs from the second to the first floor. The stair-steps were not

enclosed, but consisted of slats. The stairs were also carpeted and had a handrail,

which Gregory usually used when he came down the stairs. Before this day, Gregory

had never had any issues with the stairs and was unaware of any other accidents that had

previously happened on the stairs.

       {¶ 5} As Gregory descended the stairway, his hand was on the handrail. When

he was about half-way down, or about 8 to 9 feet from the bottom, he placed his foot on a

step and it collapsed. Gregory fell backwards, hit his head, and landed on his back.

After falling, Gregory stayed there for about seven minutes because he was hurt and was

not able to get up. Eventually, he got up and went to the front desk, where he showed his

hand, which was bleeding, to the maintenance man, Greg, and the doorman, James

Williams. Gregory told the men what had happened, and they were shocked. They

could not believe that the stairs had caved in.

       {¶ 6} Park Layne’s maintenance people roped off the stairway while Gregory was

still there. Gregory then left, and went to the hospital for treatment the following day.

When Gregory returned to Park Layne a few days later to deliver newspapers, the

staircase was still roped off. Park Layne had put up cones and a sign indicating that the

stairway was closed.

       {¶ 7} The manager of Park Layne, Jackie Murray, indicated that maintenance

personnel regularly perform visual inspections of all the staircases, including the internal

staircase between the first and second floors of the building. Murray further stated that if

any problem or damage is identified during inspections, maintenance staff would fill out a

report. To Murray’s knowledge, no reports had ever been made relating to structural
                                                                                        -4-
problems, damage, or dangers on the Park Layne staircases. Further, other than the

incident involving Gregory, no one had ever had an incident involving steps breaking,

collapsing, or otherwise falling. In addition, Park Layne had never received a report from

any tenant, guest, or employee stating that the stairs were dangerous, damaged, or

needed repair.

      {¶ 8} As soon as the accident was reported, Park Layne secured the staircase, put

up barriers to prevent others from using the staircase, and placed signs telling others not

to use the staircase. Park Layne also arranged for the broken step to be repaired as

soon as possible.

      {¶ 9} In December 2013, Gregory filed suit against Park Layne, alleging that its

negligence had caused him injury when he was on the premises on June 1, 2013, as a

business invitee. The trial court set deadlines for completion of discovery, summary

judgment motions and responses, and trial. After conducting discovery, Park Layne filed

a motion for summary judgment on August 6, 2014, which was the deadline for filing such

motions. On August 25, 2014, Gregory filed a Civ.R. 56(F) motion, requesting that the

court provide him with extra time to respond to the summary judgment motion. Although

Gregory indicated in the motion that he needed additional time for discovery, the motion

was not supported by an affidavit.

      {¶ 10} The trial court overruled Gregory’s motion on August 25, 2014, based on

Gregory’s failure to comply with Civ.R. 56(F). Gregory then filed his response to the

summary judgment motion out of time, and was permitted to do so. After the trial court

granted summary judgment in favor of Park Layne, this appeal followed.
                                                                                          -5-
                                II. Denial of Civ.R. 56(F) Motion

      {¶ 11} Gregory’s First Assignment of Error states that:

             The Trial Court Erred in Denying Appellant/Plaintiff’s Motion

      Pursuant to Rule 56(F).

      {¶ 12} Under this assignment of error, Gregory contends that the trial court’s

denial of his Civ.R. 56(F) motion was unreasonable because he needed additional time to

present facts essential to support his opposition to summary judgment. In this regard,

Gregory notes that he had just received Park Layne’s supplemental response to his

request for production of documents on July 31, 2014, and needed to conduct depositions

of current and former employees of Park Layne. Gregory also argues that he needed

additional time because his expert had not had the opportunity to conduct an on-site

inspection of the premises.

      {¶ 13} Civ.R. 56(F) provides that:

             Should it appear from the affidavits of a party opposing the motion for

      summary judgment that the party cannot for sufficient reasons stated

      present by affidavit facts essential to justify the party's opposition, the court

      may refuse the application for judgment or may order a continuance to

      permit affidavits to be obtained or discovery to be had or may make such

      other order as is just.

      {¶ 14} “The trial court's determination of a Civ.R. 56(F) motion is a matter within its

sound discretion. * * * Accordingly, the trial court's determination will not be reversed

absent an abuse of that discretion.” (Citation omitted.) Scaccia v. Dayton Newspapers,

Inc., 170 Ohio App.3d 471, 2007-Ohio-869, 867 N.E.2d 874, ¶ 13 (2d Dist.) An abuse of
                                                                                         -6-
discretion “implies that the court's attitude is unreasonable, arbitrary or unconscionable.”

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State

v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

       {¶ 15} In Doriott v. MVHE, Inc., 2d Dist. Montgomery No. 20040, 2004-Ohio-867,

we stated that:

              Pursuant to Civ.R. 7(A), the grounds for a Civ.R. 56(F) motion for a

       continuance must be stated with particularity. In addition, Civ.R. 56(F)

       requires the motion to be supported by an affidavit containing “sufficient

       reasons why (the nonmoving party) cannot present by affidavit facts

       sufficient to justify its opposition” to the summary judgment motion. Id.

       “Mere allegations requesting a continuance or deferral of action for the

       purpose of discovery are not sufficient reasons why a party cannot present

       affidavits in opposition to the motion for summary judgment.” Gates Mills

       Inv. Co. v. Pepper Pike (1978), 59 Ohio App.2d 155, 169, 392 N.E.2d 1316.

       “There must be a factual basis stated and reasons given within an affidavit

       why a party cannot present facts essential to its opposition to the motion.”

       Baldwin's Ohio Practice, Klein/Darling, Civil Practice, Vol. 2, Section At

       56-14, at p. 564.

              A party who seeks a continuance for further discovery is not required

       to specify what facts he hopes to discover, especially where the facts are in

       the control of the party moving for summary judgment. See, e.g. Booth v.

       Security Mutual Life Insurance Co. (1957), 155 F.Supp. 755. However, the

       court must be convinced that there is a likelihood of discovering some such
                                                                                            -7-
         facts. Further, a claim that the party has not completed discovery is more

         likely to be rejected by the court where the party has not shown some

         diligence in attempting discovery. See Southern Rambler Sales, Inc. v.

         American Motors Corp. (1967), 375 F.2d 932.

Doriott at ¶ 40-41.

         {¶ 16} As an initial matter, Gregory failed to comply with Civ.R. 56(F), since he did

not file any affidavits in support of his motion. We also note that Gregory filed this action

in December 2013, and would have been aware then of the need to discover what

knowledge Park Layne had about the prior condition of the staircase. That information

could only have come through employees or agents of the involved corporations.

         {¶ 17} According to the Civ.R. 56(F) motion, Gregory received Park Layne’s

original discovery responses on May 9, 2014, well in advance of the summary judgment

deadline. If Park Layne failed to completely comply with discovery, Gregory had ample

time to file a motion and bring the matter to the trial court’s attention. He did not do so.

In addition, the record is devoid of any evidence that Gregory made any attempt to

schedule depositions after receiving discovery responses, which presumably would have

revealed names of pertinent employees or agents, if Gregory were not already aware of

them.1

         {¶ 18} Furthermore, the record, again, fails to reveal any effort on Gregory’s part to

1
 In fact, Gregory’s deposition indicates that he had been delivering to Park Layne for
several years, and knew the manager, doorman, and maintenance people at the time of
his fall. Gregory Deposition, pp. 9, 16-18, and 21-23. He also continued to deliver
papers there after the accident, including at the time of his deposition in July 2014. Id. at
pp. 9, 18, and 37. However, there is no indication that Gregory attempted to schedule
depositions of any of these individuals prior to filing his Civ.R. 56(F) motion in August
2014.
                                                                                          -8-
schedule an appointment for his expert to view the premises. In view of these facts, and

Gregory’s failure to adequately support the Civ.R. 56(F) motion by affidavit, as required,

we cannot conclude that the trial court abused its discretion by overruling the motion.

       {¶ 19} Accordingly, the First Assignment of Error is overruled.



                                 III. Grant of Summary Judgment

       {¶ 20} Gregory’s Second Assignment of Error states that:

              The Trial Court Erred By Granting Summary Judgment in Favor of

       Defendant.

       {¶ 21} Under this assignment of error, Gregory contends that the trial court erred in

granting summary judgment in Park Layne’s favor, based on the applicability of the

doctrine of res ipsa loquitur.     According to Gregory, Park Layne had exclusive

management and control of the building, including the stairwell, and the accident would

not have happened if ordinary care had been used.

       {¶ 22} With respect to summary judgment, “[a] trial court may grant a moving

party summary judgment pursuant to Civ.R. 56 if there are no genuine issues of material

fact remaining to be litigated, the moving party is entitled to judgment as a matter of law,

and reasonable minds can come to only one conclusion, and that conclusion is adverse to

the nonmoving party, who is entitled to have the evidence construed most strongly in his

favor.” (Citation omitted.) Smith v. Five Rivers MetroParks, 134 Ohio App.3d 754, 760,

732 N.E.2d 422 (2d Dist.1999). “We review summary judgment decisions de novo,

which means that we apply the same standards as the trial court.” (Citations omitted.)

GNFH, Inc. v. W. Am. Ins. Co., 172 Ohio App.3d 127, 2007-Ohio-2722, 873 N.E.2d 345, ¶
                                                                                           -9-
16 (2d Dist.)

       {¶ 23} Gregory sued Park Layne on grounds of negligence, asserting that Park

Layne breached its duty of care to him as a business invitee. “In order to establish

actionable negligence, a plaintiff must demonstrate the existence of a duty, a breach of

the duty, and an injury proximately resulting therefrom.” Turk v. NovaCare Rehab. of

Ohio, 8th Dist. Cuyahoga No. 94635, 2010-Ohio-6477, ¶ 16, citing Texler v. D.O.

Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 680, 693 N.E.2d 271 (1998).

       {¶ 24} An occupier or owner of premises “owes business invitees a duty of

ordinary care in maintaining the premises in a reasonably safe condition so that its

customers are not unnecessarily and unreasonably exposed to danger.”                 (Citation

omitted.) Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 480 N.E.2d 474 (1985).

This duty includes the owner’s obligation “to exercise reasonable care to warn patrons of

known hazards.” Anderson v. Elifritz, Inc., 2d Dist. Montgomery No. 12575, 1991 WL

227616, *1 (July 9, 1991). An occupier or owner “is not, however, an insurer of the

customer's safety.” Paschal at 203. Accord Blair v. Vandalia United Methodist Church,

2d Dist. Montgomery No. 24082, 2011-Ohio-873, ¶ 15.

       {¶ 25} “Where negligence revolves around the question of the existence of a

hazard or defect, the legal principle prevails that notice, either actual or constructive, of

such hazard or defect is a prerequisite to the duty of reasonable care.”             Allen v.

Memering, 2d Dist. Greene No. 06-CA-16, 2007-Ohio-1506, ¶ 8 , citing Heckert v. Patrick,

15 Ohio St.3d 402, 473 N.E.2d 1204 (1984). “Constructive notice can be proven by

direct or circumstantial evidence. * * * Circumstantial evidence is the proof of certain facts

and circumstances from which one may infer other facts which, according to common
                                                                                           -10-
experience, reasonably follow.”        Springhart v. Darden Restaurants, Inc., 2d Dist.

Montgomery No. 19439, 2003-Ohio-919, ¶ 11, quoting Youngerman v. Meijer, Inc., 2d

Dist. Montgomery No. 15732, 1996 WL 531628, *2 (Sept. 20, 1996).

       {¶ 26} In the case before us, the undisputed facts indicate that Park Layne did not

have either actual or constructive notice of a defect in the stairs. Instead, the undisputed

evidence indicates that Park Layne performed regular inspections of the stairs, and had

no prior knowledge of a defect. In addition, no guest, tenant, or employee, had reported

problems with the stairs before Gregory’s accident, nor had anyone previously had an

accident on the stairs. Under the circumstances, we fail to see what more Park Layne

could have done to protect invitees.

       {¶ 27} Gregory argues that under the doctrine of res ipsa loquitur, the accident

would not have happened in the absence of negligence. The trial court rejected this

theory.

       {¶ 28} “Res ipsa loquitur is a rule of evidence which permits, but does not require,

the jury to draw an inference of negligence in a case where the instrumentality causing

injury is shown to have been within the exclusive control and management of the

defendant, and where the circumstances attending the injury were of such a character in

themselves as to warrant the conclusion that a lack of ordinary care on the part of the

defendant was responsible for the occurrence or condition causing the injury.”

Renneckar v. Canton Terminal Restaurant, 148 Ohio St. 119, 73 N.E.2d 498 (1947),

paragraph one of the syllabus.

       {¶ 29} “[T]he rule of res ipsa loquitur is not a substantive rule of law, or one of

liability, but is a rule of evidence which permits the trier of facts to infer negligence after
                                                                                          -11-
the trial court determines, as a matter of law, the application of the rule.” (Citations

omitted.) Moore v. Denune & Pipic, Inc., 26 Ohio St.2d 125, 126, 269 N.E.2d 599 (1971).

“Where proof of knowledge is required, ruling out res loquitur is based upon the premise

that in res ipsa loquitur situations the defendant must have exclusive management and

control.” Id. at 128.

       {¶ 30} Moore involved a situation similar to the present, in which the plaintiff was

injured when the staircase in a house in which he was working collapsed. Id. at 125.

The Supreme Court of Ohio concluded that res ipsa loquitur did not apply in an action

brought against the owner. In this regard, the court observed that

              In the instant case, as in the storekeeper cases * * * many persons

       had access to the premises and used the stairs. To apply the rule of res

       ipsa loquitur under such circumstances would violate the principle that

       defendant is not an insurer. Defendant was not required to be a contractor,

       inspector and watchman at any and all times.

(Citations omitted.) Moore at 128. Accord Cramer v. Wi I Hsu, M.D., Co., 11th Dist.

Trumbull No. 92-T-4648,1992 WL 366896, *3 (Dec. 11, 1992) (“exclusive control cannot

be found if the instrumentality is used by the public.”); Brown v. Univ. Hosp. of Cleveland,

8th Dist. Cuyahoga No. 57101, 1990 WL 75203, *3 (June 7, 1990) (in case involving

collapsing chair, court noted that “[w]here, as here, the defendants' chair unit is located in

a public area with many people using it, there is no exclusive control and management

and the doctrine of res ipsa loquitur is inapplicable.”); and Turk, 8th Dist. Cuyahoga No.

94635, 2010-Ohio-6477, ¶ 45 (refusing to apply res ipsa loquitur in case where lockers fell

on plaintiff. The court noted that the lockers were being used by others besides the
                                                                                        -12-
plaintiff, and, therefore, were not under the facility’s exclusive management and control.)

       {¶ 31} Based on the preceding discussion, we conclude that the trial court did not

err in rejecting the application of res ipsa loquitur. As was noted below, many people

used the stairway, and there is no inference that the accident could not have happened in

the absence of ordinary care on the part of Park Layne. There are many reasons why a

step could have failed, including misuse by the public, or defects in the original

construction, for which Park Layne would not have been responsible. Accordingly, the

Second Assignment of Error is overruled.



                                         IV. Conclusion

       {¶ 32} All of Gregory’s assignments of error having been overruled, the judgment

of the trial court is affirmed.




                                     .............



FAIN, J. and DONOVAN, J., concur.



Copies mailed to:

Sean Brinkman
Aaron G. Durden
Robert W. Hojnoski
Ian Mitchell
Hon. Mary Katherine Huffman
