[Cite as Moore v. Behringer Harvard 600 Superior L.P., 2011-Ohio-6652.]



                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 96926



                                   SHARON MOORE
                                                         PLAINTIFF-APPELLANT

                                                   vs.


           BEHRINGER HARVARD 600 SUPERIOR LP,
                        ET AL.

                                                         DEFENDANTS-APPELLEES



                                          JUDGMENT:
                                           AFFIRMED


                                    Civil Appeal from the
                              Cuyahoga County Common Pleas Court
                                   Case No. CV-737858

        BEFORE:          Boyle, P.J., S. Gallagher, J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED:                          December 22, 2011
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ATTORNEYS FOR APPELLANT

Michael J. O’Shea
Ronald A. Annotico
O’Shea & Associates Co., LPA
Beachcliff Market Square
19300 Detroit Road, Suite 202
Rocky River, Ohio 44116

ATTORNEY FOR APPELLEES

Robert P. Lynch
Park Center Plaza II
Suite 450
6150 Oak Tree Boulevard
Independence, Ohio 44131




MARY J. BOYLE, P.J.:

       {¶ 1} Plaintiff-appellant, Sharon Moore, appeals the trial court’s decision

granting summary judgment on her negligence claim in favor of defendant-appellee,

Behringer Harvard 600 Superior LP (“Behringer Harvard”).           She raises a single

assignment of error:

       {¶ 2} “The trial court erred in granting appellee’s motion for summary judgment

as there exists issues of material fact.”

       {¶ 3} We affirm.

                                    Procedural History and Facts
                                           3

      {¶ 4} On August 14, 2007, Moore fell upon entering an elevator in the parking

garage located at the Fifth Third Center, owned and operated by Behringer Harvard.

Moore alleges that her foot got caught on the edge of the elevator floor upon entering

because the elevator floor was not level with the entrance floor.     As a result of the

misleveling, Moore fell and injured her arm.

      {¶ 5} Moore subsequently filed suit against Behringer Harvard and Otis Elevator

Company (“Otis”), asserting negligence claims against both defendants. Otis is the

exclusive maintenance provider for the elevators pursuant to a service agreement with

Behringer Harvard. Otis was subsequently dismissed with prejudice from the case on

November 23, 2010.

      {¶ 6} Behringer Harvard moved for summary judgment, arguing that it was

entitled to judgment as a matter of law because it did not have any notice of the elevator

misleveling. In support of its motion, Behringer Harvard attached, among other things,

the affidavit of Richard Myers, regional field engineer for Otis. According to Myers’s

affidavit, he is an expert in elevator maintenance and service and had reviewed Otis’

maintenance records concerning the elevator at issue (“Elevator No. G2”).       Based on

his review, Myers stated that, in the 12 months preceding the accident on August 14,

2007, trained and qualified Otis mechanics performed regularly scheduled maintenance

examinations of Elevator No. G2 pursuant to the maintenance agreement and that none

of the examinations during this time frame revealed any maintenance problems with the
                                              4

elevator’s leveling devices.   Myers further averred that “Otis did not receive notice of

any maintenance problems with these components, nor were there any service calls or

requests related to them during this time.”

       {¶ 7} Moore opposed the motion, arguing that Behringer Harvard’s general

knowledge of “multiple mechanical problems with these elevators despite regular

maintenance and service is sufficient to put [Behringer Harvard] on notice that the

elevators present a danger to its passengers and some sort of warning was required.”   In

support of its brief in opposition, Moore cited to the deposition testimony and affidavit

of Diana Lis, general manager of the Fifth Third Center for Behringer Harvard, for the

proposition that the elevators had experienced some mechanical problems in the past.

Moore further relied on her husband’s deposition testimony, who testified that, prior to

Moore’s fall, “[t]here were times when the [garage] elevators would be down, one of

‘em or both of them.”

       {¶ 8} The trial court granted Behringer Harvard’s motion for summary judgment,

finding that Moore “failed to provide any direct evidence that the garage elevators, under

the control of defendant Behringer Harvard, presented a dangerous condition (‘elevator

leveling’) that defendant knew existed or should have known existed.”

       {¶ 9} From this order, Moore appeals.

                                       Standard of Review
                                            5

       {¶ 10} We review an appeal from summary judgment under a de novo standard.

Baiko v. Mays (2000), 140 Ohio App.3d 1, 10, 746 N.E.2d 618. Accordingly, we afford

no deference to the trial court’s decision and independently review the record to

determine whether summary judgment is appropriate.           N.E. Ohio Apt.    Assn. v.

Cuyahoga Cty. Bd. of Commrs. (1997), 121 Ohio App.3d 188, 192, 699 N.E.2d 534.

       {¶ 11} Civ.R. 56(C) provides that before summary judgment may be granted, a

court must determine 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 the evidence most strongly in favor of the nonmoving party, that conclusion is

adverse to the nonmoving party.” State ex rel. Duganitz v. Ohio Adult Parole Auth., 77

Ohio St.3d 190, 191, 1996-Ohio-326, 672 N.E.2d 654.

       {¶ 12} The moving party carries an initial burden of setting forth specific facts

that demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio

St.3d 280, 292-293, 1996-Ohio-107, 662 N.E.2d 264. If the movant fails to meet this

burden, summary judgment is not appropriate, but if the movant does meet this burden,

summary judgment will be appropriate only if the nonmovant fails to establish the

existence of a genuine issue of material fact. Id. at 293.

                                          Duty to Warn
                                           6

       {¶ 13} In her single assignment of error, Moore argues that a genuine issue of fact

exists regarding whether Behringer Harvard should have warned her of the dangerous

condition associated with the elevator.   She contends that Behringer Harvard’s general

knowledge of problems associated with all of the elevators was sufficient to put them on

notice and require them to warn passengers.     We find Moore’s argument unpersuasive.

       {¶ 14} In this case, it is undisputed that Behringer Harvard, as a common carrier,

owed Moore the highest degree of care to provide a reasonably safe passage consistent

with the practical operation of its business.    “A passenger elevator is classified as a

common carrier so that the duty owed to the passengers is to exercise the highest degree

of care of which the situation is reasonably susceptible.” Norman v. Thomas Emery’s

Sons, Inc. (1966), 7 Ohio App.2d 41, 43, 218 N.E.2d 344. A common carrier’s duty of

the highest degree of care includes warning passengers about dangerous conditions that

the carrier knows or should know exist.          Conver. v. EKH Co., 10th Dist. No.

02AP-1307, 2003-Ohio-5033, ¶33.

       {¶ 15} Here, Behringer Harvard moved for summary judgment and presented

reliable, credible evidence that it did not have any knowledge of any mis-leveling

problems in the 12 months preceding Moore’s fall.            It further presented expert

testimony verifying that Behringer Harvard regularly maintained the elevators and that

there were never any signs of a misleveling malfunction with Elevator No. G2.      Moore

failed to rebut this evidence.
                                            7

       {¶ 16} We find this court’s analysis in Hodges v. Gates Mills Towers Apt. Co.

(Sept. 28, 2000), 8th Dist. No. 77278, to be analogous to the instant case. In Hodges,

the plaintiff alleged that the elevator misleveled, causing her to fall and sustain injuries.

She subsequently filed suit against the owner and operator of the elevator, who then

moved for summary judgment on the grounds that it had no actual or constructive notice

of any misleveling problems associated with the elevator.          The trial court granted

defendant’s motion for summary judgment and this court affirmed, noting that plaintiff

failed to rebut defendant’s evidence and demonstrate that defendant “had actual or

constructive notice of the mis-leveling problem.”    Id.

       {¶ 17} This is the exact scenario in this case.     Moore has simply failed to rebut

Behringer Harvard’s evidence that it had neither actual nor constructive notice of a

misleveling problem.

       {¶ 18} Moore argues, however, that knowledge of any known malfunction with

the elevator in the past, such as a light out on a panel, a door not closing properly, or an

elevator stopping at a different floor, is sufficient to create a genuine issue of material

fact to preclude summary judgment.        We disagree.      Moore’s argument ignores the

basic fact that none of those alleged malfunctions occurred in this case giving rise to her

claim. And the mere fact that these malfunctions occurred in the past is insufficient to

establish that Behringer Harvard should have known of a possible misleveling problem

with Elevator No. G2. Indeed, Moore failed to present any evidence to support this
                                              8

claim.     Instead, Moore’s argument essentially seeks to impose strict liability on

Behringer Harvard because she was injured while using the elevator.         This proposition,

however, is not supported under the law.

         {¶ 19} Accordingly, the sole assignment of error is overruled.

         Judgment affirmed.

         It is ordered that appellees recover from appellant costs herein taxed.

         The court finds there were reasonable grounds for this appeal.

         It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

         A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
EILEEN A. GALLAGHER, J., CONCUR
