Peterson v. Amigo Mobility Internatl., Inc.

Ohio Court of Appeals

Peterson v. Amigo Mobility Internatl., Inc.

2013 Ohio 3933

CourtOhio Court of Appeals

DecidedSeptember 13, 2013

Docket25604

StatusPublished

This text of 2013 Ohio 3933 (Peterson v. Amigo Mobility Internatl., Inc.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Peterson v. Amigo Mobility Internatl., Inc., 2013 Ohio 3933 (Ohio Ct. App. 2013).

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Opinion

[Cite as Peterson v. Amigo Mobility Internatl., Inc., 2013-Ohio-3933.]

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

DELLA MAE PETERSON : Appellate Case No. 25604 : Plaintiff-Appellant : Trial Court Case No. 2012-CV-1891 : v. : (Civil Appeal from : Common Pleas Court AMIGO MOBILITY INTERNATIONAL, : INC. : : Defendant-Appellee :

...........

OPINION

Rendered on the 13th day of September, 2013.

SEAN BRINKMAN, Atty. Reg. #0088253, and AARON G. DURDEN, Atty. Reg. #0039862, Durden Law, L.P.A., L.L.C., 10 West Monument Avenue, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellant

JOSEPH F. NICHOLAS, Atty Reg. #0038053, and ELAINE TSO, Atty Reg. #0081474, Mazanec, Raskin & Ryder Co., L.P.A., 100 Franklin’s Row, 34305 Solon Road, Cleveland, Ohio 44139 Attorneys for Defendant-Appellee [Cite as Peterson v. Amigo Mobility Internatl., Inc., 2013-Ohio-3933.] ...........

CELEBREZZE, JR., J. (By Assignment):

{¶1} Plaintiff-appellant, Della Mae Peterson (“plaintiff”), appeals from a summary

judgment rendered in favor of defendant-appellee, Amigo Mobility International, Inc.

(“Amigo Mobility”).

I. Factual and Procedural History

{¶2} On December 5, 2011, plaintiff went to a Wal-Mart located on Hoke Road in

Montgomery County, Ohio, to obtain money orders and pay her bills. Plaintiff went to

Wal-Mart on a monthly basis for the same purpose over the previous years. Each time she

went to Wal-Mart, she used a motorized shopping cart because of problems with her knees

and loss of balance. When plaintiff entered the Wal-Mart on the day of the incident, she

discovered that there was only one motorized shopping cart available for use.

{¶3} After sitting on the motorized shopping cart, plaintiff moved through the store

to the customer service desk. After obtaining a money order, she completed a U-turn and

moved the motorized shopping cart against the wall. According to plaintiff, she then turned

off the motorized shopping cart and attempted to exit the cart. However, before she was

able to exit the cart, her shoe caught underneath the cart and, although the power was turned

off, she alleges the cart rolled forward and backward over her ankle. Plaintiff submits that

the shopping cart continued to move, with the power off, until the shopping cart tilted onto

her. As a result, she claims that she suffered bodily injury, including injury to her knees,

back, ribs, and buttocks. The motorized shopping cart at issue was not set aside after

plaintiff’s fall. Further, plaintiff could not identify the brand of motorized cart she used on

the day in question. 3

{¶4} On March 13, 2012, plaintiff commenced this matter by filing a lawsuit against

defendants Wal-Mart Stores, Wal-Mart Supercenter Store No. 5409 (the “Hoke Road

Wal-Mart”) (collectively “Wal-Mart”), Community Insurance Company, the United States

Department of Health and Human Services, and defendant-appellee, Amigo Mobility. 1

Plaintiff’s five-count complaint, as amended, asserted as its third claim product liability

against Amigo Mobility. Plaintiff claims she sustained injuries caused by a defect in a

motorized shopping cart that she alleges was manufactured by Amigo Mobility. The

product defect alleged in her complaint was that the “cart moved by itself and moved after

the power was turned off.”

{¶5} On December 7, 2012, Amigo Mobility filed a motion for summary judgment

arguing that plaintiff failed to establish that (1) Amigo Mobility manufactured the motorized

shopping cart used by plaintiff on December 5, 2011; (2) there was, in fact, a defect in the

product manufactured and sold by Amigo Mobility; (3) such defect existed at the time the

product left the hands of Amigo Mobility; and (4) the defect was the direct and proximate

cause of plaintiff’s injuries. Amigo Mobility further argued that “regardless of who

manufactured the motorized shopping cart involved in the incident at the Hoke Road

Wal-Mart, plaintiff voluntarily assumed the risk of using a cart that she admitted was

missing a wheel before she got on it.”

{¶6} On December 28, 2012, plaintiff filed a memorandum in opposition to Amigo

Mobility’s motion for summary judgment. On January 8, 2013, the trial court granted

Amigo Mobility’s motion for summary judgment, finding there was “no dispute of the fact

1 Defendant Wal-Mart settled with plaintiff and was dismissed from the case. 4

that the motorized shopping cart plaintiff used on December 5, 2011, was not manufactured

by [Amigo Mobility] based on the evidence presented.”

{¶7} Plaintiff now brings this timely appeal, raising one assignment of error for

review.

II. Law and Analysis

A. Summary Judgment

{¶8} In her sole assignment of error, plaintiff argues that the trial court erred in

granting summary judgment in favor of Amigo Mobility.

{¶9} We review a grant of summary judgment de novo, which means that “we apply

the standards used by the trial court.” Brinkman v. Doughty, 140 Ohio App.3d 494, 497,

748 N.E.2d 116 (2d Dist.2000). Summary judgment is appropriate when a trial court

correctly finds “(1) that there is no genuine issue as to any material fact; (2) that the moving

party is entitled to judgment as a matter of law; and (3) 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, who is entitled to have the evidence construed most strongly in

his favor.” Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46

(1978).

{¶10} Under the statutory cause of action for products liability provided by R.C.

2307.73, manufacturers are liable for compensatory damages based on product liability

claims only where a claimant establishes all the following elements by a preponderance of

the evidence:

(1) * * * the manufacturer’s product in question was defective in

manufacture or construction as described in section 2307.74 of the Revised 5

Code, was defective in design or formulation as described in section 2307.75

of the Revised Code, was defective due to inadequate warning or instruction

as described in section 2307.76 of the Revised Code, or was defective

because it did not conform to a representation made by its manufacturer as

described in section 2307.77 of the Revised Code;

(2) A defective aspect of the manufacturer’s product in question as

described in division (A)(1) of this section was a proximate cause of harm for

which the claimant seeks to recover compensatory damages;

(3) The manufacturer designed, formulated, produced, constructed,

created, assembled, or rebuilt the actual product that was the cause of harm

for which the claimant seeks to recover compensatory damages

{¶11} Subsection (B) of R.C. 2307.73 further states that

[i]f a claimant is unable because the manufacturer’s product in question was

destroyed to establish by direct evidence that the manufacturer’s product in

question was defective or if a claimant otherwise is unable to establish by

direct evidence that the manufacturer’s product in question was defective,

then, consistent with the Rules of Evidence, it shall be sufficient for the

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