[Cite as Kacsmarik v. Lakefront Lines Arena, 2011-Ohio-2553.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95981
MICHELE KACSMARIK, ET AL.
PLAINTIFFS-APPELLANTS
vs.
LAKEFRONT LINES ARENA, ET AL. DEFENDANTS-APPELLEES
JUDGMENT: AFFIRMED 2
Civil Appeal from the Cuyahoga County Common Pleas Court Case No. CV-651268
BEFORE: E. Gallagher, J., Celebrezze, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: May 26, 2011
ATTORNEYS FOR APPELLANTS
David R. Grant Stephen S. Vanek Friedman, Domiano & Smith Co., L.P.A. 55 Public Square Suite 1055 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEES
For Lakefront Lines Arena
Rafael P. McLaughlin Martin T. Galvin Reminger Co., L.P.A. 1400 Midland Building 101 Prospect Avenue, West Cleveland, Ohio 44115-1093
For Manhattan Construction Co., Inc.
Josh L. Schoenberger Richard A. Williams Williams & Petro, L.L.C. 338 S. High Street, 2nd Floor Columbus, Ohio 43215-4546 3
For MCG Architects
Laura A. Hauser Robert S. Lewis Thompson Hine L.L.P. 3900 Key Center 127 Public Square Cleveland, Ohio 44114
EILEEN A. GALLAGHER, J.:
{¶ 1} Plaintiffs-appellants Michele Kacsmarik (hereinafter
“appellant”) and Greg Kacsmarik, Sr., appeal the trial court’s decisions
granting summary judgment in favor of defendants-appellees Manhattan
Construction Company, Inc. (hereinafter “Manhattan”), Lakefront Lines
Arena and T.M.J. Investments L.L.C. (hereinafter “T.M.J.”), and MCG
Architects. Appellants argue that the trial court erred in granting the
appellees’ motions because genuine issues of material fact precluded
summary judgment. For the reasons that follow, we affirm.
{¶ 2} This case arises out of an incident that occurred on April 21,
2007 at Lakefront Lines Arena, 5310 Hauserman Road in Parma, Ohio,
which is owned by appellee T.M.J. On that date, appellant Michele
Kacsmarik’s 11-year-old son, Greg Kacsmarik, was practicing with his ice
hockey team at the Lakefront Lines Arena’s hockey rink. Appellant arrived 4
shortly before the practice ended and sat on a bench, approximately nine feet
and diagonally left from the exit door located in the ice rink’s dasher boards.
{¶ 3} As the hockey practice was ending, individual players were
leaving the ice, one at a time. The first player to exit the rink struggled to
open the door from inside the rink. Appellant rose off the bench, walked six
to eight steps to the rink door, and opened it for the player. With the rink
door remaining open, appellant did not sit back down on the bench but
rather stood with her back to the wall to the right of the bench. Appellant
was not standing directly in front of the open rink door but rather slightly
diagonally to the left of the door and approximately three feet away from it.
Appellant positioned herself such that she was closer to the door than the
bench itself.
{¶ 4} Appellant testified at deposition that while standing near the
open door, she was “not really paying attention” to the activity on the ice.
While she was waiting for her son to exit the rink, approximately six
players came off the ice through the open rink door. One player, D.B., lost
his footing as he exited the ice and began to somersault as his foot touched
the floor outside the rink door. He eventually slid into appellant with his
ice skate blade cutting into her right ankle. As a result of the incident,
appellant suffered injuries to her ankle requiring multiple surgeries and 5
physical rehabilitation.
{¶ 5} Appellant brought suit in the Cuyahoga County Common Pleas
Court on February 19, 2008, against a number of defendants, including the
three appellees. Appellees Manhattan and MCG Architects were named as
defendants alleging negligent construction and architectural work,
respectively, in the conversion of the arena to an ice rink facility in 1997.
Appellee T.M.J. is the owner of the arena and was named as a defendant
based upon a theory of premises liability. The trial court granted separate
summary judgment motions in favor of Manhattan, T.M.J., and MCG.
Appellants’ three assignments of error assert that the trial court erred in
granting summary judgment in favor of each of the appellees.
{¶ 6} Our review of a trial court’s grant of summary judgment is de
novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d
241. Pursuant to Civ.R. 56(C), summary judgment is appropriate when (1)
there is no genuine issue of material fact, (2) the moving party is entitled to
judgment as a matter of law, and (3) reasonable minds can come to but one
conclusion and that conclusion is adverse to the nonmoving party, said party
being entitled to have the evidence construed most strongly in his favor.
Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196,
paragraph three of the syllabus; Zivich v. Mentor Soccer Club (1998), 82 6
Ohio St.3d 367, 696 N.E.2d 201. The party moving for summary judgment
bears the burden of showing that there is no genuine issue of material fact
and that it is entitled to judgment as a matter of law. Dresher v. Burt
(1996), 75 Ohio St.3d 280, 662 N.E.2d 264.
{¶ 7} Appellants’ first assignment of error asserts that the trial court
erred in granting summary judgment in favor of appellee Manhattan.
Count four of appellants’ amended complaint alleges that Manhattan was
negligent in their construction work at Lakefront Lines Arena in 1997.
Manhattan was the general contractor for the renovation of the arena into an
ice rink and was responsible for assuring that the subcontractors followed
the renovation plans. Specifically, appellant argues that Manhattan
deviated from the architectural plans and built the bench that she sat on
prior to her injury. The construction plans did not call for any spectator
seating to be built.
{¶ 8} The trial court, in its journal entry granting summary judgment
in favor of Manhattan, concluded that Manhattan did not construct the
subject bench, stating, “[a]lthough the evidence does not establish when,
how, or by whom the spectator bleachers were installed, it is undisputed that
the spectator bleachers were not installed by this defendant at that time, or
at any subsequent time.” 7
{¶ 9} Contrary to the trial court’s conclusion, the record clearly reveals
how the subject benches came into being. David Erne, the owner of
Manhattan Construction, testified that the subject bench was built by
volunteers and tradesmen using Manhattan’s materials and supervised by
Manhattan. Erne himself supervised the construction of the benches to
assure that it was done correctly. (Deposition of David Erne, p. 69-70.)
{¶ 10} However, the fact that the trial court incorrectly concluded that
the origin of the subject bench could not be ascertained does not end our
inquiry. To overcome a summary judgment motion in a negligence action, a
plaintiff must prove that the defendant breached a duty owed to the plaintiff
and that this breach was the proximate cause of the plaintiff’s injuries.
Texler v. D.O. Summers Cleaners & Shirt Laundry Co. (1998), 81 Ohio St.3d
677, 693 N.E.2d 271. In the present case, even assuming that Manhattan’s
actions in supervising the installation of the subject bench, contrary to the
architect’s plans, demonstrated a duty owed to appellant and a breach of that
duty, summary judgment remained proper on wholly separate grounds. The
evidence here irrefutably demonstrates that the bench was not the proximate
cause of appellant’s injuries.
{¶ 11} “Proximate causation” has been described as “some reasonable
connection between the act or omission of the defendant and the damage the 8
plaintiff has suffered.” Marsh v. Heartland Behavioral Health Ctr., Franklin
App. No 09AP-630, 2010-Ohio-1380, ¶40, quoting Prosser, Law of Torts (5
Ed.1984) 263, Section 41. “[T]he proximate cause of an event is that which
in a natural and continuous sequence, unbroken by any new, independent
cause, produces that event and without which that event would not have
occurred.” Sabolik v. HGG Chestnut Lake Ltd. Partnership, 180 Ohio
App.3d 576, 583, 2009-Ohio-130, 906 N.E.2d 488, quoting Aiken v. Indus.
Comm. (1944), 143 Ohio St. 113, 53 N.E.2d 1018. In other words, proximate
cause is “that without which the accident would not have happened, and
from which the injury or a like injury might have been anticipated.” Id.,
citing Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 539 N.E.2d 614, quoting
Corrigan v. E.W. Bohren Transport Co. (1968), 408 F.2d 301, 22 Ohio Misc.
201.
{¶ 12} Generally, the issue of proximate cause is a question of fact and
is not resolvable by means of summary judgment. Lecso v. Heaton,
Cuyahoga App. No. 94121, 2010-Ohio-3880, citing Creech v. Brock & Assoc.
Constr., 183 Ohio App.3d 711, 2009-Ohio-3930, 918 N.E.2d 541, ¶14.
However, summary judgment may be granted on the issue of proximate
cause where the facts are clear and undisputed and the relation to cause and
effect is so apparent that only one conclusion may be fairly drawn.” Id., 9
citing Schutt v. Rudolph-Libbe, Inc. (Mar. 31, 1995), Wood App. No.
WD-94-064.
{¶ 13} The undisputed facts in this case reveal that the bench was
wholly unrelated to appellant’s injury. Appellant was not sitting on the
bench when she was injured. The evidence is that appellant left the bench,
opened the ice rink door and instead of returning to the bench, stood
approximately three feet back and diagonally exposed to the open rink door
while as many as six players exited. Appellant testified at her deposition
that, had she not been standing where she was, she would not have been
injured. Photos of the scene reveal that the location of the bench, unlike the
area where plaintiff was standing when struck, is not in a direct line of sight
of a player exiting the ice rink. Appellant does not argue, nor does it appear
from the photos to be physically possible, that had she been utilizing the
bench complained of at the time of the incident, that she would have been
injured. The sole conclusion that can be drawn from the evidence is that the
bench played no role in appellant’s injury. Appellant’s first assignment of
error is overruled.
{¶ 14} In their second assignment of error, appellants argue that the
trial court improperly granted summary judgment in favor of appellee T.M.J.
on appellants’s premises liability claim. T.M.J.’s motion for summary 10
judgment asserted various defenses, including that appellant’s injury
resulted from an open and obvious condition on the property. The trial court
granted T.M.J.’s motion for summary judgment without issuing a formal
opinion.
{¶ 15} A business owner owes a business invitee, such as appellant, a
duty of ordinary care in maintaining the premises in a reasonably safe
condition so that invitees are not subject to unreasonable dangers. Frano v.
Red Robin Internatl., Inc., 181 Ohio App.3d 13, 2009-Ohio-685, 907 N.E.2d
796; Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203, 480
N.E.2d 474. Although a business is not an insurer of its invitee’s safety, it
must warn them of latent or concealed dangers if it knows or has reason to
know of the hidden dangers. Frano, Jackson v. Kings Island (1979), 58
Ohio St.2d 357, 390 N.E.2d 810.
{¶ 16} “The existence of a duty is fundamental to establishing
actionable negligence, without which there is no legal liability.” Adleman v.
Timman (1997), 117 Ohio App.3d 544, 690 N.E.2d 1332. A business has no
duty to protect an invitee from dangers that are known to such invitee or are
so obvious and apparent to such invitee that he may reasonably be expected
to discover them and protect himself against them. Sidle v. Humphrey
(1968), 13 Ohio St.2d 45, 233 N.E.2d 589. “The rationale behind the [open 11
and obvious] doctrine is that the open and obvious nature of the hazard itself
serves as a warning.” Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d
642, 595 N.E.2d 902. The open and obvious doctrine concerns the first
element of negligence, whether a duty exists. Sidle. Therefore, the open
and obvious doctrine obviates any duty to warn of an obvious hazard and
bars negligence claims for injuries related to the hazard. Henry v. Dollar
Gen. Store, Greene App. No. 2002-CA-47, 2003-Ohio-206; Hobart v. Newton
Falls, Trumbull App. No. 2002-T-0122, 2003-Ohio-5004. Where a hazard is
open and obvious, a business owner owes no duty to an invitee, and it is
unnecessary to consider the issues of breach and causation. Frano, Ward v.
Wal-Mart Stores Inc., Lake App. No. 2000-L-171, 2001-Ohio-4041.
{¶ 17} The Supreme Court of Ohio reaffirmed the viability of the open
and obvious doctrine in Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79,
2003-Ohio-2573, 788 N.E.2d 1088. In Armstrong, the court held that the
emphasis in analyzing open and obvious danger cases relates to the
threshold issue of duty. The rule properly considers the nature of the
dangerous condition itself, as opposed to the nature of the plaintiff’s conduct
in encountering it. Id. “The fact that a plaintiff was unreasonable in
choosing to encounter the danger is not what relieves the property owner of
liability. Rather, it is the fact that the condition itself is so obvious that it 12
absolves the property owner from taking any further action to protect the
plaintiff.” Id. at 82. Moreover, the open and obvious danger does not
actually have to be observed by the plaintiff in order for it to be an open and
obvious condition under the law. Konet v. Mark Glassman, Inc., Lake App.
No. 2004-L-151, 2005-Ohio-5280. The determinative issue is whether the
condition was observable. Id.
{¶ 18} We find the open and obvious doctrine to be applicable to the
present circumstances. When an ice rink’s door is closed, outside spectators
at ground level are physically separated from hockey players, hockey sticks,
ice skate blades, and hockey pucks. Ground level spectators such as
appellant are protected by the rink’s dasher boards, plexiglass, and netting.
The players are encased inside the ice rink such that the present collision
cannot occur. However, when the ice rink’s door is open, the above
protections drop away. A person standing in the vicinity of an open ice rink
door is exposed to the activity on the ice, including, as in this case, players
and their skate blades as they negotiate the rink’s exit. Appellant testified
at deposition that she had previously attended hundreds of hockey practices
and games. She was aware that people do fall when they exit the ice.
Appellant had previously seen players lose their footing as they have exited
ice rinks. We find that the danger inherent in standing in the immediate 13
proximity of an open ice rink door while young hockey players are
negotiating the exit at variable speeds is so obvious that it absolves the
property owner from taking any further action to protect the plaintiff.
Appellant’s second assignment of error is overruled.
{¶ 19} Appellant’s third and final assignment of error asserts that the
trial court erred in granting summary judgment in favor of appellee MCG
Architects. Count four of appellant’s amended complaint alleges that MCG
Architects negligently performed its design responsibilities in the renovation
of Lakefront Lines Arena into an ice rink facility. In regards to the
renovation of the facility, MCG Architects contracted in 1997 to provide the
design and construction documents for modifications to existing locker
rooms, restrooms, shower facilities, maintenance room, offices, weight room,
storage room, and mechanical room. Relevant to the present case, MCG
Architects contracted to provide plans for the new ice pit. Notably, MCG
Architects’ renovation duties did not call for the design of any spectator
seating. MCG Architects’ contract also specifically provided that,
“Construction Phase Services are not included as part of this proposal * * *
MCG will not be able to certify to the actual execution of the construction
relative to its compliance to the Construction Documents or to the quality
and completeness.” Plaintiff’s brief in opposition to motion for summary 14
judgment, Exhibit 2.
{¶ 20} Appellants allege that MCG Architects was negligent in the
performance of its architectural duties by failing to include spectator seating
in the ice rink’s plans and, more specifically, failing to create a design that
physically separated fully geared hockey players entering and exiting the
rink from coming into contact with spectators.
{¶ 21} “It is well-established that a plaintiff must demonstrate the
following elements in an action for professional negligence: (1) the existence
of a legal duty; (2) a breach of that duty; (3) proximate causation; and (4)
injury or damages. If the party moving for summary judgment in a
negligence action can point to evidence illustrating that the nonmoving party
will be unable to prove any one of these elements, then the movant is
entitled to judgment as a matter of law.” Second Natl. Bank of Warren v.
Demshar (1997), 124 Ohio App.3d 645, 707 N.E.2d 30.
{¶ 22} “Generally, one who contracted in a specialized professional
capacity to provide the design for a particular structure may be held to
respond in damages for the foreseeable consequences of a failure to exercise
reasonable care in the preparation of the design.” Cincinnati Riverfront
Coliseum, Inc. v. McNulty Co. (1986), 28 Ohio St.3d 333, 337, 504 N.E.2d
415. Whether an architect exercises reasonable care in the preparation of 15
designs depends upon the standard of care that licensed architects must
follow. Expert testimony is required to establish the standard of care,
unless the lack of skill or care of the professional is so apparent as to be
within the comprehension of a layperson and requires only common
knowledge and experience to understand it. Simon v. Drake Constr. Co.
(1993), 87 Ohio App.3d 23, 621 N.E.2d 837.
{¶ 23} In the present instance, in response to MCG Architects’ motion
for summary judgment, appellant offered the affidavit and report of Alan R.
Caskey in criticism of the architectural work done during the renovation.
Mr. Caskey avers in his affidavit that he is a “park and recreation expert”
with “extensive education, training, and experience in planning, designing
and publishing in this field, including the design, construction and operation
of ice skating facilities.”
{¶ 24} A review of Mr. Caskey’s affidavit and preliminary report reveal
that he is critical of MCG Architects’ design work on the arena in that it,
“could have separated the spectators from the hockey player’s movement
to/from the locker room to the ice rink.” However, Mr. Caskey also averred
that this separation could have been accomplished by “ice rink management
policies.” Mr. Caskey is also critical of MCG Architects for not redesigning
safe spectator seating into the plans despite such seating being removed by 16
MCG’s client. Mr. Caskey asserted at deposition that a functional analysis
should have been done, if not by MCG Architects then by a consultant such
as himself to uncover potentially hazardous conditions at the ice rink.
However, Mr. Caskey concedes that this functional analysis is not
necessarily done by the architect; rather, Mr. Caskey himself often performs
this type of analysis.
{¶ 25} At no point in Mr. Caskey’s affidavit or his preliminary report
does he assert that he is familiar with the standard of care that licensed
architects must follow in the present situation. Mr. Caskey is not a licensed
architect and specifically stated at deposition, that, “I’m not trying to testify
as an architect. I’m trying to testify as the individual who works as part of
the team with the architect to determine what the functional plan of the
facility is.” Caskey Deposition, p. 127-128. Although Mr. Caskey is critical
of MCG Architects for failing to consult with a functional analyst such as
himself, he does not and apparently, is not qualified to testify that a
licensed architect fails to exercise reasonable care in the preparation of an
ice rink design when he fails to undertake such consultations.
{¶ 26} At oral argument appellants acknowledged that Mr. Caskey
could not testify as to the relevant standard of care for an architect in this
instance. Instead, appellants argued that the deposition testimony of a 17
former MCG architect, John Burk, established the standard of care. In the
relevant portion of the testimony cited by appellants, John Burk stated, “as
long as you don’t put the bench right at the — ice or right at the door to the
ice, I would say that benches around [the] facility would be reasonably safe
— I would not put an entrance — to the ice or exit to the ice right off of
seating.” This statement, however, is irrelevant to appellant’s theory of
liability against MCG; that MCG’s failure to create a design that physically
separated fully geared hockey players entering and exiting the rink from
coming into contact with spectators was a breach of an architect’s standard
of care. Appellants do not allege, and the facts clearly reveal, that MCG had
nothing to do with the creation of the bench near the ice rink door.
{¶ 27} Under these circumstances, we hold that the trial court did not
err in granting summary judgment in favor of MCG Architects as appellants
failed to establish a duty owed by MCG Architects or a breach of that duty.
Appellant’s third assignment of error is overruled.
{¶ 28} The judgment of the trial court is affirmed.
It is ordered that appellees recover from appellants 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. 18
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and SEAN C. GALLAGHER, J., CONCUR