[Cite as Brienzo v. Wal-Mart Super Ctr., 2013-Ohio-2221.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


JAMES M. BRIENZO                                     :      JUDGES:
                                                     :
                                                     :      Hon. W. Scott Gwin, P.J.
       Plaintiff-Appellant                           :      Hon. Sheila G. Farmer, J.
                                                     :      Hon. Patricia A. Delaney, J.
-vs-                                                 :
                                                     :
WAL-MART SUPER CENTER, ET AL.                        :      Case No. 2012CA00141
                                                     :
                                                     :
       Defendants-Appellees                          :      OPINION


CHARACTER OF PROCEEDING:                                    Appeal from the Stark County Court of
                                                            Common Pleas, Case No.
                                                            2011CV02865



JUDGMENT:                                                   AFFIRMED




DATE OF JUDGMENT ENTRY:                                     May 28, 2013




APPEARANCES:

For Plaintiff-Appellant:                                    For Defendant-Appellee Browning
SEAN BUCHANAN                                               Ferris Industries of Ohio, Inc.:
P.O. Box 1443                                               JONATHAN M. MENUEZ
Kent, OH 44240                                              ADAM W. MARTIN
                                                            KEVIN W. KITA
                                                            3600 Erieview Tower
                                                            1301 East 9th St.
                                                            Cleveland, OH 44114
Stark County, Case No. 2012CA00141                                                      2


Delaney, J.


       {¶1} Plaintiff-appellant James M. Brienzo appeals from the June 29, 2012

judgment entry of the Stark County Court of Common Pleas granting the motion for

summary judgment of defendant-appellee Browning Ferris Industries of Ohio (“BFI”).

                             FACTS AND PROCEDURAL HISTORY

       {¶2} The following facts are adduced from appellee’s motion for summary

judgment, appellant’s response, appellee’s reply, and the parties’ Civ.R.56 evidence.

       {¶3} On September 22, 2010, appellant admittedly did some cocaine, possibly

smoked a joint, borrowed a car from someone he didn’t know, and drove to the Wal-

Mart store in Alliance, Ohio in the early morning hours for the specific purpose of

stealing. Appellant’s shoplifting item of choice was “usually computers, stuff like that.”

He loaded up a shopping cart with items, disabled a fire alarm, and pushed the cart

out a fire exit. Appellant then walked out the front door, retrieved the cart, and took it

to his car to start loading it up.

       {¶4} Before he could begin, however, he noticed a police cruiser coming

toward him slowly with its lights off. Appellant took off running behind the Wal-Mart

store, saw only an open field, and so turned back toward the shopping plaza. Spotting

a trash dumpster, he climbed inside and covered himself with loose cardboard. Due

to his position under the cardboard and below the dumpster’s rim, appellant could not

see out of the dumpster.

       {¶5} In the meantime, Charles D. Welshhans was going about his daily

routine as a front end loader driver employed by appellee.         Welshhans has been

driving the same route for 25 years, which includes a number of commercial pickup
Stark County, Case No. 2012CA00141                                                      3


sites in Alliance. Generally Welshhans approaches the dumpster (or “can,”), picks it

up with his forklift, lifts it up over the truck’s windshield to dump into the back of his

vehicle, compacts the trash load, replaces the can, and gets back onto the road to

head to his next stop. Welshanns testified that the lifting and compacting process is

very loud, loud enough to make conversation in the cab impossible.

       {¶6} The final portion of commercial sites on Welshhans’ Alliance route

included McDonald’s, Dollar Tree, a Chinese restaurant, Ponderosa Steakhouse,

Mom’s Drive-Thru, and PTC Conduit Mill. After the final stop on the route, Welshhans

would generally proceed to a disposal site at Alliance Recycling.

       {¶7} On September 22, 2010, Welshhans made his pickup from McDonald’s

as usual. At the Dollar Tree, though, he noticed something unusual: police officers in

a line, walking through a field with flashlights as though they were looking for someone

or something.

       {¶8} Welshhans proceeded on to the dumpster at the Chinese restaurant,

which was about 30 yards away from where he saw the police officers. He put the

forks into the can and watched the police in his rearview mirror, now directly behind

him. He called his wife on his personal cell phone and asked her to turn on the

television to see if anything unusual was happening to explain the number of police in

the area. Welshhans described this as a short conversation.

       {¶9} Welshhans then went about his business of lifting and dumping the

contents of the can which, unbeknownst to him, included appellant. He noticed it was

overloaded with cardboard, which was not unusual. Due to the amount of cardboard,

however, he manually compacted the load at least twice. It packed easily because it
Stark County, Case No. 2012CA00141                                                  4


was wet from recent rain. Welshhans replaced the can, backed out, and drove away

on his way to Ponderosa Steakhouse. He did not see or hear anything unusual.

        {¶10} Welshhans proceeded on his route, stopping at Ponderosa Steakhouse,

Mom’s Drive-Thru, and PTC Conduit Mill, picking up and compacting trash at each

stop.   Welshhans did not see or hear anything unusual until he left PTC and

encountered a roadblock of police cruisers.     He realized police were flagging him

down and he pulled over. An officer asked if he had serviced the plaza by the mall;

when Welshhans said he had, the officer responded that someone might be in the

back of his truck.

        {¶11} Appellant had realized immediately what was happening when the

dumpster he was concealed in was lifted and dumped into the back of Welshhans’

truck. Appellant testified that he tried to stand up and yell, but he slipped on the

cardboard and his foot got stuck. Appellant ended up being compacted repeatedly

along with the refuse. When he realized he had survived the compacting process,

appellant used his cell phone to call his mother and his friend, who were

unresponsive. Eventually appellant called 911 to ask for help, alerting authorities he

was in the back of a garbage truck.

        {¶12} Welshhans and officers climbed up onto the truck to look for an

occupant, but could not see appellant. Welshhans turned the truck off and they were

able to faintly hear someone calling for help. The load of trash had to be dumped for

appellant to be recovered.

        {¶13} Appellant sustained a broken pelvis, a torn urethra, and a broken ankle.

He was in the hospital for a month and a nursing home for three months. His injuries
Stark County, Case No. 2012CA00141                                                     5


have required surgery and physical therapy and are a source of ongoing medical

problems.

      {¶14} Appellant’s negligence claim against appellee asserted that appellee

negligently “failed to provide for safety concerns regarding the dangers arising out of

[its] * * * garbage and waste disposal agreements and equipments;” appellee “did

negligently allow easy and general access to their garbage disposal and collection

equipment;” and appellant was directly and proximately injured thereby.

      {¶15} On January 5, 2012, appellee filed a motion for summary judgment

asserting, e.g., it owed appellant no duty of care, and even if such duty existed,

appellant’s own contributory fault is so great that recovery is precluded. Appellant

responded and appellee replied. The trial court initially overruled appellee’s motion for

summary judgment on March 21, 2012. Discovery proceeded, and appellee filed a

motion to reconsider its motion for summary judgment on May 16, 2012. Appellant

responded and appellee replied.

      {¶16} On June 29, 2012, the trial court granted appellee’s motion for summary

judgment, finding appellant failed to set forth specific facts showing appellee breached

any duty to him.

      {¶17} It is from this decision that appellant now appeals.

                                  ASSIGNMENT OF ERROR

      {¶18} Appellant raises one Assignment of Error:

      {¶19} “I.    THE TRIAL COURT ERRED BY GRANTING DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT.”
Stark County, Case No. 2012CA00141                                                 6


                                        ANALYSIS

                                              I.

      {¶20} Appellant argues the trial court erred in granting appellee’s motion for

summary judgment. We disagree.

      {¶21} Summary judgment motions are to be resolved in light of the dictates of

Civ.R. 56, which was reaffirmed by the Ohio Supreme Court in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996):

            Civ.R. 56(C) provides that before summary judgment may be

            granted, it must be determined that (1) no genuine issue as to any

            material fact remains to be litigated, (2) the moving party is

            entitled to judgment as a matter of law, and (3) it appears from the

            evidence that reasonable minds can come to but one conclusion,

            and viewing such evidence most strongly in favor of the

            nonmoving party, that conclusion is adverse to the party against

            whom the motion for summary judgment is made. State ex rel.

            Parsons v. Fleming, 68 Ohio St.3d 509, 511, 628 N.E.2d 1377

            (1994), citing Temple v. Wean United, Inc. 50 Ohio St.2d 317,

            327, 364 N.E.2d 267 (1977).


      {¶22} As an appellate court reviewing summary judgment motions, we must

stand in the shoes of the trial court and review summary judgment motions on the

same standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc.,

30 Ohio St.3d 35, 36, 56 N.E.2d 212 (1987).
Stark County, Case No. 2012CA00141                                                   7


      {¶23} Appellant’s sole claim against appellee sounds in negligence.           “A

common-law negligence claim requires a showing of (1) a duty owed; (2) a breach of

that duty; and (3) an injury proximately caused by the breach.” Au v. Waldman, 5th

Dist. No.2010 CA 112, 2011–Ohio–2233, ¶ 45 citing Wallace v. Ohio Dept. of

Commerce, 96 Ohio St.3d 266, 2002–Ohio–4210, 773 N.E.2d 1018, ¶ 22. “The

existence of a duty is fundamental to establishing actionable negligence, without

which there is no legal liability.” Adelman v. Timman, 117 Ohio App.3d 544, 549, 690

N.E.2d 1332 (8th Dist.1997). Determination of whether a duty exists is a question of

law for the court to decide, and therefore, is a suitable basis for summary judgment.

Mussivand v. David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989); Galinari v. Koop,

12th Dist. No. CA2006–10–086, 2007–Ohio–4540, ¶ 10, 13.

      {¶24} In this case, the trial court found no breach of any duty owed to appellant

because appellant failed to establish a genuine issue of fact as to whether he could

have been seen or heard by Welshhans while he was in the dumpster. We have

reviewed the entire record, and we agree appellant has failed to establish a material

fact as to the existence of a duty owed to persons such as appellant who stow

themselves in dumpsters to elude the police.       Moreover, appellant has failed to

establish the breach of any such duty on the part of appellee, whose driver Welshhans

never anticipated someone would conceal themselves in the dumpster, could not have

seen appellant inside the dumpster, could not have heard appellant cry out from inside

the truck, and who took steps to free appellant once the police alerted him to the

possibility that someone was concealed in his trash load. We note that appellant was
Stark County, Case No. 2012CA00141                                                    8


actively concealing himself in the dumpster; by his own admission, he climbed in

shortly before Welshhans drove up.

       {¶25} Appellant argues the trial court misread the facts, asserting that

Welshhans was in the midst of the phone call with his wife as he was lifting the

dumpster containing appellant, implying that if Welshhans had not been on the phone,

things would have turned out differently for appellant. We note, however, that this

point was not vague in the testimony: Welshhans specifically testified that he called

his wife prior to lifting the can, and denied that he was on the phone with her while he

was lifting the can. T. 38.

       {¶26} Appellant’s argument falls short of creating a genuine issue of material

fact, and he has not established a duty owed to him by appellee or any breach thereof.

                                       CONCLUSION

       {¶27} Appellant’s sole assignment of error is overruled and the judgment of the

Stark County Court of Common Pleas is affirmed.

By: Delaney, J.

Gwin, P.J. and

Farmer, J. concur.
