[Cite as Fitzpatrick v. R & L Carriers, Inc., 2013-Ohio-3368.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                                 JUDGES:
SHAWNA M. FITZPATRICK                                  :         Hon. W. Scott Gwin, P.J.
                                                       :         Hon. Sheila G. Farmer, J.
                         Plaintiff-Appellant           :         Hon. John W. Wise, J.
                                                       :
-vs-                                                   :
                                                       :         Case No. 12-COA-046
R&L CARRIERS, INC.                                     :
                                                       :
                      Defendant-Appellee               :         OPINION




CHARACTER OF PROCEEDING:                                   Civil appeal from the Ashland County Court
                                                           of Common Pleas, Case No. 11-CIV-415

JUDGMENT:                                                  Reversed and Remanded



DATE OF JUDGMENT ENTRY:                                    July 31, 2013

APPEARANCES:

For Plaintiff-Appellant                                    For Defendant-Appellee

MARK ADAMS                                                 JOSEPH PAPPALARDO
1110 Beecher Crossing N., Ste. D                           JAMIE PRICE
Columbus, OH 43230-4564                                    JEFFREY STUPP
                                                           Sixth Floor, Bulkley Building
                                                           1501 Euclid Avenue
                                                           Cleveland, OH 44115
[Cite as Fitzpatrick v. R & L Carriers, Inc., 2013-Ohio-3368.]


Gwin, P.J.

        {¶1}     Appellant appeals the November 21, 2012 judgment entry of the Ashland

County Common Pleas Court granting summary judgment to appellee.

                                           Facts & Procedural History

        {¶2}     On September 12, 2007, appellant Shawna Fitzpatrick was working at

Pentair Water facility in Ashland, Ohio. Appellant would load and unload trucks using

mechanical forklifts or tow motors to move pallets with pumps on them. The warehouse

contained a dock plate to connect the trailers that would come into the warehouse to the

dock. The plate attached to each trailer itself is called a deck plate and each deck plate

is fastened directly to the floor of the trailer. Appellant was operating a stand-up tow

motor to move and unload products into a trailer of appellee, R&L Carriers, Inc. It was

Pentair’s policy that employees are not to use this type of tow motor when loading

product onto a trailer, but appellant utilized this particular tow motor on September 12,

2007 because none of the tow motors acceptable for loading the product were

available.

        {¶3}     On September 12, 2007, when appellant entered appellee’s trailer to load

a pump, she moved the tow motor into the trailer and deposited the pump near the front

of the trailer. When she backed the stand-up tow motor out of the trailer, appellant

states that as the tow motor traveled over the deck plate in appellee’s trailer, a part of it

caught on the edge of the deck plate which caused the tow motor to suddenly stop,

throwing appellant to the ground and causing injuries to her left shoulder, hip, elbow,

and back.        There were no employees of appellee at the scene of the accident.

Appellant did not inspect the trailer before she entered the trailer and appellant’s
Ashland County, Case No. 12-COA-046                                                          3


mother, also a Pentair employee, entered and exited the same trailer several times

without incident and did not notice any problem with the trailer.

       {¶4}   Appellant’s supervisor, Robert Flowers (“Flowers”) investigated the

accident. Flowers did not see the accident, but inspected the trailer immediately after

the accident occurred and, when he inspected the trailer, the tow motor had not yet

been moved. Flowers noticed part of the tow motor had caught on the deck plate of the

trailer and the deck plate was bent. Flowers also noticed that several screws that would

normally hold the deck plate to the floor of the trailer were missing. He did not observe

the screws lying loose anywhere on the floor of the trailer. Flowers confirmed that

appellant was using the stand-up tow motor because the other forklifts were in use.

Flowers completed an accident investigation report and determined that the following

unsafe conditions were responsible for the accident: loading with reach truck, short on

sit-down lift trucks, and screws missing from steel plate.

       {¶5}   Kevin Kelley, an employee of appellee who repaired and replaced deck

plates, stated a deck plate that was missing screws would be loose and could create a

flap. Kelley fixed the trailer at issue after the incident and when he replaced the deck

plate, he requested fourteen (14) new screws, although he stated he sometimes uses

old screws to repair deck plates. Kelley confirmed it is appellee’s policy that anytime a

repair that requires a trailer to be brought into the shop, the interior trailer should also be

inspected. The repair record for the trailer at issue in this case demonstrates that it was

in the repair shop on September 10, 2007 for repairs and/or replacement of the tires,

mud flaps, and brakes.
Ashland County, Case No. 12-COA-046                                                        4


       {¶6}   On November 28, 2011, appellant filed a complaint against appellee,

alleging appellee: negligently provided appellant’s employer with a defective trailer;

appellee negligently failed to inspect, maintain, and repair its trailer and provide it in a

safe state of repair; appellee negligently failed to maintain its trailer in a condition safe

for individuals, including appellant, who would have to travel into and out of the trailer on

the equipment in order to load the trailer; and appellee negligently failed to use

reasonable care with respect to the trailer it provided to appellant’s employer. Appellee

filed a motion for summary judgment on September 10, 2012. On November 21, 2012,

the trial court granted appellee’s motion for summary judgment, finding appellant failed

to establish the deck plate was actually defective before or at the time of the accident

and that appellant failed in showing that negligence on the part of appellee proximately

caused the tow motor to abruptly stop, resulting in her being thrown to the floor of the

loading dock. Appellant assigns the following errors on appeal:

       {¶7}   “I. IN THIS PERSONAL INJURY CASE, THE TRIAL COURT ERRED

WHEN IT GRANTED SUMMARY JUDGMENT BECAUSE THE TRIAL COURT FAILED

TO CONSTRUE THE FACTS, AND INFERENCES THEREFROM, IN FAVOR OF

PLAINTIFF-APPELLANT, THE NON-MOVING PARTY, AND WHERE THERE WERE

DISPUTED FACTS REGARDING THE LIABILITY OF DEFENDANT-APPELLEE WITH

RESPECT TO THE DEFECTIVE DECK PLATE THAT CAUSED PLAINTIFF-

APPELLANT’S ACCIDENT AND INJURIES.

       {¶8}   “II. IN THIS PERSONAL INJURY CASE, THE TRIAL COURT ERRED

WHEN IT GRANTED SUMMARY JUDGMENT TO DEFENDANT-APPELLEE WHERE

THE TRIAL COURT FAILED TO APPLY THE CORRECT STANDARD OF REVIEW TO
Ashland County, Case No. 12-COA-046                                                     5


THE FACTS, AND INFERENCES THEREFROM, RELATING TO THE LIABILITY OF

DEFENDANT-APPELLEE WITH RESPECT TO THE ACCIDENT BUT CHOSE

INSTEAD TO IMPROPERLY WEIGH THE EVIDENCE REGARDING PLAINTIFF-

APPELLANT’S CLAIM OF NEGLIGENCE AGAINST DEFENDANT-APPELLEE.”

                                      Summary Judgment

      {¶9}   Civ. R. 56 states in pertinent part:

             “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 of material fact and that

      the moving party is entitled to judgment as a matter of law. No evidence

      or stipulation may be considered except as stated in this rule. A summary

      judgment shall not be rendered unless it appears from the evidence or

      stipulation, and only from the evidence or stipulation, that reasonable

      minds can come to but one conclusion and that conclusion is adverse to

      the party against whom the motion for summary judgment is made, that

      party being entitled to have the evidence or stipulation construed mostly

      strongly in the party’s favor.      A summary judgment, interlocutory in

      character, may be rendered on the issue of liability alone although there is

      a genuine issue as to the amount of damages.”

      {¶10} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the
Ashland County, Case No. 12-COA-046                                                   6

undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311

(1981). The court may not resolve any ambiguities in the evidence presented. Inland

Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474

N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the

applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301,

733 N.E.2d 1186 (6th Dist. 1999).

        {¶11} When reviewing a trial court’s decision to grant summary judgment, an

appellate court applies the same standard used by the trial court.      Smiddy v. The

Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review

the matter de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d

1243.

        {¶12} The party moving for summary judgment bears the initial burden of

informing the trial court of the basis of the motion and identifying the portions of the

record which demonstrate the absence of a genuine issue of fact on a material element

of the non-moving party’s claim. Drescher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264

(1996). Once the moving party meets its initial burden, the burden shifts to the non-

moving party to set forth specific facts demonstrating a genuine issue of material fact

does exist. Id. The non-moving party may not rest upon the allegations and denials in

the pleadings, but instead must submit some evidentiary materials showing a genuine

dispute over material facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791

(12th Dist. 1991).
Ashland County, Case No. 12-COA-046                                                     7


                                             I. & II.

      {¶13} Appellant, in her two assignments of error, argues the trial court erred in

granting summary judgment in favor of appellee. We agree.

      {¶14} In order to establish actionable negligence, a plaintiff must prove (1) the

defendant owed him a duty of care; (2) the defendant breached that duty of care; and

(3) as a direct and proximate result of the defendant’s breach, the plaintiff suffered

injury. Menifee v. Ohio Welding Products, Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707

(1984).

                                     Cause of the Accident

      {¶15} Appellee argues the trial court properly granted summary judgment

because appellant failed to establish the deck plate was actually defective and because

the deck plate was not the proximate cause of appellant’s injury. Appellant argues there

are genuine issues of material fact regarding whether the deck plate was defective and

the proximate cause of her injury. We agree with appellant.

      {¶16} A plaintiff in a premises liability action must be able to identify or explain

the reason for the accident. Hildebrandt v. Kroger Co., 5th Dist. No. 01-CA-114, 2002-

Ohio-2544 at ¶ 7, citing Cleveland Athletic Assn. v. Bending, 129 Ohio St. 152, 194 N.E.

6 (1934). Speculation or conjecture by the plaintiff as to the culpable party who caused

the accident and what caused the accident is not sufficient, as a matter of law, since the

issue of proximate cause is not open to speculation. Scott v. Kings Island Co., 12 Dist.

No. CA-98-04-044, 1999 WL 7458, 6-7 (Feb. 6, 1999); Denton v. Cracker Barrel Old

Country Store Inc., 10th Dist. No. 02-AP-1211, 2003-Ohio-2890, ¶ 22.
Ashland County, Case No. 12-COA-046                                                        8


       {¶17} A 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 v. Chief

Supermarket, 3d Dist. No. 11-06-07, 2007-Ohio-772 at ¶ 9. If an injury is the natural

and probable consequence of the alleged negligent act, then that act is the proximate

cause of the injury. Sutowski v. Eli Lilly & Co., 82 Ohio St.3d 347, 351 (1998). To find

that an injury was the natural and probable cause of an alleged negligent act, it must

appear that the injury complained of could have been foreseen or reasonably

anticipated from the act.     Strother v. Hutchinson, 67 Ohio St.2d 282, 287 (1981).

Further, “there may be more than one proximate cause of an injury.” Taylor v. Webster,

12 Ohio St.2d 53, 57 (1967).

       {¶18} Appellee is correct in stating that appellant did not see the allegedly

defective deck plate prior to her accident and that appellant’s mother traversed the deck

plate multiple times without issue. However, immediately after the accident and before

the tow motor was moved, Flowers inspected the accident scene including the inside of

the trailer, saw the tow motor caught on the deck plate, observed the bent deck plate,

and saw there were screws missing from the deck plate that were not found in the

interior of the trailer. In his affidavit, Flowers stated “as a result of my inspection I

concluded that [appellant’s] stand up tow motor, also known as a reach truck, struck the

deck plate, which resulted in her injuries.” In his investigation report, Flowers listed both

loading with the reach truck and screws missing from the steel plate as conditions

responsible for the accident. Accordingly, appellant has put forth at least some evidence

that the deck plate was defective and caused her tow motor to abruptly stop. Kelley, an
Ashland County, Case No. 12-COA-046                                                       9


employee of appellee, stated in his deposition that a deck plate missing screws could

come loose and create a flap. Further, that he observes damaged deck plates on a

weekly basis and has seen damaged and loose deck plates missing screws due to

heavy equipment being run over the deck plate.

       {¶19} Construing the allegations most favorably toward the non-moving party,

we find that material facts are genuinely disputed and reasonable minds could draw

different conclusions from the undisputed facts. Appellant put forth sufficient evidence

to overcome summary judgment and permit the trier of fact to determine whether the

deck plate was actually defective and whether it proximately caused the accident.

                                           Knowledge

       {¶20} Appellee argues summary judgment was appropriate because appellant

failed to put forth any evidence that appellee had actual knowledge of the hazard or that

such danger existed for a sufficient length of time to reasonably justify the inference that

the failure to remove it was lack of ordinary care. We disagree.

       {¶21} An invitee is defined as a person who rightfully enters and remains on the

premises of another at the express or implied invitation of the owner and for a purpose

beneficial to the owners. Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio

St.3d 312, 315, 1996-Ohio-137, 662 N.E.2d 287. A premises owner owes invitees a

duty of ordinary care to maintain the premises in a reasonably safe condition so that the

invitee is not unnecessarily and unreasonably exposed to danger. Paschal v. Rite Aid

Pharmacy, Inc., 18 Ohio St.3d 203, 480 N.E.ed 474 (1985). The mere occurrence of an

injury to an invitee does not give rise to the presumption or an inference of negligence.

Parras v. Standard Oil Co., 160 Ohio St. 315, 116 N.E.2d 300 (1953), paragraph one of
Ashland County, Case No. 12-COA-046                                                     10


syllabus. However, an owner is liable “to an invitee for injuries caused by a latent defect

when the owner knows, or in the exercise of ordinary care should have known, about

the hazard for a time sufficient to correct the defect.” Tarkany v. Bd. of Trustees of Ohio

State Univ., 10th Dist. No. 90AP-1398, 1991 WL 101593 (June 4, 1991).

      {¶22} Further, an “owner must conduct inspections of the premises to discover

possible dangerous conditions of which he is unaware.” Beck v. Camden Place at

Tuttle Crossing, 10th Dist. No. 02AP-1370, 2004 WL 1277044 at ¶ 21 (June 10, 2004).

An owner must also “conduct inspections of the premises to discover possible

dangerous conditions of which he is unaware.”          Id.   An owner is “charged with

constructive knowledge of defects which would have been revealed by a reasonable

inspection of the premises.”      Id.   Whether something is reasonable under the

circumstances is ordinarily a question for the trier of fact.” Tarkany, 10th Dist. No.

90AP-1398.

      {¶23} In this case, the evidence demonstrates that the trailer at issue was in the

repair shop on September 10, 2007 for repairs and/or replacement of the tires, mud

flaps, and brakes. Thus, appellee had the trailer in its possession for repair two (2)

days prior to the accident. Kelley stated the interior of the trailer should have been

inspected at the time of the repair by appellee because if there is something wrong with

the trailer and it is brought into the repair shop, the repairman would overlook the whole

trailer. However, the service records from the repair date do not indicate that such

interior inspection took place. Further, Flowers stated when he reviewed the scene

immediately after the accident, prior to the tow motor being moved, he did not see the

screws missing from the deck plate anywhere inside the trailer. Kelley testified that if a
Ashland County, Case No. 12-COA-046                                                      11


screw comes out of its hole in the deck plate, the plate could come loose and create a

flap.

        {¶24} Construing the evidence most favorably towards appellant, we find a

reasonable trier of fact could conclude there was a latent defect that appellee should

have known about and/or reasonable minds could conclude a reasonable inspection by

appellee would have revealed the defect and appellee could be charged with

constructive knowledge of the missing screws in the deck plate.

                                       Trivial Imperfection

        {¶25} Appellee argues summary judgment was appropriate because the

Supreme Court has held that an owner of private premises is not liable for injuries

sustained as a result of a person tripping and falling on a minor or trivial imperfection

and, in this case, the alleged defect is trivial, as Kelley testified the deck plate is

approximately 1/8” thick. Appellee cites to Kimbell v. City of Cincinnati, 160 Ohio St.

370 (1953), in which the Supreme Court held that a height variation in pavement levels

of one-half to three-fourths of an inch is a slight defect as a matter of law that precludes

a finding of negligence. Id. The Supreme Court held that owners are not liable for

injuries due to minor or trivial imperfections that were not unreasonably dangerous and

are commonly encountered and to be expected. Id.

        {¶26} Unlike the cases cited by appellee in support of its argument, the case at

issue is not a trip and fall case in which appellant tripped and fell over a trivial

imperfection in a sidewalk or pavement that is commonly encountered and to be

expected.    Rather, in this case, appellee provided commercial trailers to business

customers. Appellant was driving a heavy tow motor over the trailer and there is no
Ashland County, Case No. 12-COA-046                                                  12


indication from the record that it is commonly expected that there are screws missing

from deck plates. While Kelley stated a deck plate is approximately 1/8” inch thick, he

also testified a deck plate that was missing screws would be loose and could create a

flap. Flowers testified that, after the accident, the deck plate was bent up and there

were screws missing from the deck plate. Accordingly, we do not find the alleged defect

trivial as a matter of law pursuant to the Kimball line of cases.

       {¶27} Based on the foregoing, we find that genuine issues of material facts exist

and thus the trial court erred in granting summary judgment to appellee. Appellant’s

Assignments of Error I and II are sustained. The November 21, 2012 judgment entry of

the Ashland County Common Pleas Court is reversed and the matter is remanded to

trial court for further proceedings in accordance with the law and this opinion.

By Gwin, P.J.,

Farmer, J., and

Wise, J., concur

                                               _________________________________
                                               HON. W. SCOTT GWIN


                                               _________________________________
                                               HON. SHEILA G. FARMER


                                               _________________________________
                                               HON. JOHN W. WISE




WSG:clw 0717
[Cite as Fitzpatrick v. R & L Carriers, Inc., 2013-Ohio-3368.]


               IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


SHAWNA M. FITZPATRICK                                   :
                                                        :
                            Plaintiff-Appellant         :
                                                        :
                                                        :
-vs-                                                    :        JUDGMENT ENTRY
                                                        :
R&L CARRIERS, INC.                                      :
                                                        :
                                                        :
                         Defendant-Appellee             :        CASE NO. 12-COA-046




       For the reasons stated in our accompanying Memorandum-Opinion, the November

21, 2012 judgment entry of the Ashland County Common Pleas Court is reversed and

the matter is remanded to trial court for further proceedings in accordance with the law

and this opinion. Costs to appellee.




                                                            _________________________________
                                                            HON. W. SCOTT GWIN


                                                            _________________________________
                                                            HON. SHEILA G. FARMER


                                                            _________________________________
                                                            HON. JOHN W. WISE
