Description
all the instructions in the file please pay attention to the case number and the chapter which are chapter 4 case number 6
RUBRIC FOR ASSIGNED CASE PRESENTATIONS AND PAPERS
SPRING 2021
1.
Each student will be assigned a case from the end-of-chapter cases in the text book. You
are required to submit a paper on the case and OPTIONALLY to engage in an email, telephone
or on-line discussion with the professor about the case.
2.
The cases in the textbook are what lawyers call squibs. The squibs are short summaries of
the case and not the full court opinion about the case. You will be able to do an internet search
under the name of the case and find the full court opinion, which will have much more information than the squib in the textbook.
3.
Using the information in the full case opinion, you will be required to do the following
a.
(up to 50 points) Submit a paper of 750 to 1,000 words on the case. The paper
must treat the following areas:
– what is the general subject matter of the case, such as torts, offer and acceptance, etc.
– what is the procedural posture of the case (what court are we in, how did the case get
there, and what stage of the proceedings are we at, such as appeal, trial, motion, discovery, etc.
– what are the facts of the case?
– what is the law that applies in this situation?
– what is the issue? That is a statement of how the law applies to the facts of the case
– discussion – make an argument that supports a particular outcome in the case. NOTE –
you do not have to agree with the court’s opinion. Feel free to come to a different conclusion
than the court did, if you think the law and facts support you.
– state your conclusion.
4.
Email your paper to me as an attachment no later than the due date.
b.
OPTIONAL EXTRA CREDIT (up to 25 points) Be prepared to engage in an inclass or telephone discussion with the professor about this case (IN CLASS PREFERRED). You
should be very familiar with the law and facts and should NOT be referring to the textbook, the
case or your notes during this discussion. The discussion will include alternate factual and legal
situations that will require some on-your-feet thinking.
If you want to do the optional extra credit, notify me when you email me your paper and I will
assign a date.
EXAMPLE
CHAPTER 6 CASE – from page 197 – here is how the case appears in the textbook 8. Myers was injured when she slipped and fell on an ice patch on the
front walkway of the Canton Centre Mall. The mall is owned and operated by Forest City Enterprises. Forest City had employees who were
responsible for clearing the ice off of the mall walkways every morning.
On this particular morning, they had cleared the ice from the walkway a
short time before Myers took her tumble. Nevertheless, an ice patch had
formed, and Myers did fall, sustaining injuries. Couper, one of the employees charged with the ice-removal task, theorized that water may
have been splashed up onto the sidewalk by passing cars where it froze
sometime after their initial cleaning of the day. According to Cooper,
“the vehicles could have splashed this back up on there . . . we’re constantly moving around the building at all times, so anything can be going on in this half of the building while you’re over here doing this half
coming around.†Was Forest City negligent in failing to keep the sidewalk clear of ice at all times that winter? What test would be used to
judge Forest City’s conduct? Explain. Myers v. Forest City Enterprises, Inc.
635 NE 2d 1268 (OH).
Do a Google or other search engine search on the case to find the full court opinion.
Here is the full court opinion – you can see that the opinion discusses several issues that are not even
mentioned in the squib. DO NOT INCLUDE THE OPINION IN YOUR PAPER
MYERS, Appellant, v. FOREST CITY ENTERPRISES, INC., Appellee.
Court of Appeals of Ohio, Stark County.
Decided April 29, 1993. 92 Ohio App.3d 351 (1993)
Timothy B. Saylor, for appellant.
Weston Hurd Fallon Paisley & Howley, James L. McCrystal, Jr., William H. Baughman, Jr.
and John G. Farnan, for appellee.
SMART, Presiding Judge.
This is an appeal from a summary judgment of the
Court of Common Pleas of Stark County, Ohio, entered in favor of defendant-appellee Forest City Enterprises, Inc. (“appellee”) and against plaintiffappellant Anna Mae Myers (“appellant”) on her complaint for personal injuries that she allegedly sustained in a fall at the entrance to Canton Centre Mall
which is owned and operated by appellee.
Appellant alleged that she fell on December 26, 1990.
There had been no snowfall for several days, no pre-
cipitation of any kind that day, and the parking lot
was only slightly damp. Appellant offered photographs of the sidewalk on which she had fallen, showing that there was an accumulation of ice on the
sidewalk.
Appellee admitted that it had exclusive control over
the premises and that it had undertaken to clean
snow and ice from the premises on a daily basis
throughout the winter.
Appellant assigns two errors to the trial court:
Assignment of Error No. I
“The trial court erred in granting summary judgment
when material issue of fact existed concerning: a)
whether appellee, after affirmatively undertaking to
remove snow and ice, did so negligently and aggravated an existing hazard, and b) whether the ice accumulation was a natural or unnatural accumulation.”
Assignment of Error No. II
“The trial court erred in overruling appellant’s motion
for reconsideration when appellee’s own actions
caused the delay which made necessary testimony
unavailable until after the discovery deadline.”
I
Civ.R. 56(C) states in pertinent part:
“Summary judgment shall be rendered forthwith if
the pleading, depositions, answers to interrogatories,
written admissions, affidavits, transcripts of evidence
in the pending case, and written stipulations of fact, if
any, timely filed in the action, show that there is no
genuine issue as to any 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 such evidence or stipulation and only therefrom, 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, such party
being entitled to have the evidence or stipulation
construed most strongly in his favor.”
In its recent case of Wing v. Anchor Media, Ltd. of
Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, the
Supreme Court of Ohio held at paragraph three of the
syllabus:
“A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which
that party bears the burden of production at trial.
(Celotex v. Catrett [1986], 477 U.S. 317 [106 S.Ct.
2548, 91 L.Ed.2d 265], approved and followed.)”
Appellant’s Loc.App.R. 4(D) statement asserts that the
granting of summary judgment was inappropriate because there were material facts in dispute, namely,
whether appellee, after affirmatively undertaking to
remove snow and ice, did so negligently and thereby
aggravated an existing hazard, and whether the ice
accumulation was a natural or unnatural accumulation.
Although a land owner or occupier has no duty to its
business invitees to remove natural accumulation of
snow and ice from exterior walkways, if it undertakes
to do so, it may not create a dangerous or unnatural
accumulation of snow or ice, or be actively negligent
in permitting one to exist on its property, Lopatkovich
v. Tiffin (1986), 28 Ohio St.3d 204, 28 OBR 290, 503
N.E.2d 154. Here, there was evidence in the record
that appellee employed a crew to examine and clean
the sidewalks every morning.
Appellant urges that if appellee undertook to clean
the sidewalks, and no new precipitation fell, then certainly the ice on which she fell must have been an
unnatural or man-made condition. In cases involving
an unnatural accumulation of ice and snow, a plaintiff
must show that the defendant created or aggravated
the hazard, that the defendant knew or should have
known of the hazard, and that the hazardous condition was substantially more dangerous than it would
have been in the natural state, Porter v. Miller (1983),
13 Ohio App.3d 93, 13 OBR 110, 468 N.E.2d 134.
Melting snow that refreezes into ice is natural, not an
unnatural accumulation of ice, see Kinkey v. Jewish
Hosp. Assoc. of Cincinnati (1968), 16 Ohio App.2d 93,
45 O.O.2d 267, 242 N.E.2d 352. Appellant deposed
several of appellee’s employees, whose testimony
demonstrated that appellee did undertake to clear
the sidewalks every morning. One of those employees, Robin Cooper, deposed that the photograph,
taken approximately one hour after appellant fell, did
not depict the condition of the sidewalk as it existed
after he had cleared it that morning. He hypothesized
that perhaps passing automobiles had thrown water
up on the sidewalk, where it had frozen. Cooper stated, “the vehicles could have splashed this back up on
there, and mass area that we’ve got we’re constantly
moving around the building at all times, so anything
can be going on in this half of the building while
you’re over here doing this half coming around.”
While we agree with the appellant that the record
does demonstrate an issue of fact regarding the
source of the accumulation of ice, and whether it was
natural or unnatural, nevertheless appellant has
failed to present any evidence that appellee was negligent, or that it had notice of this hazard. In fact, the
evidence shows the contrary, namely, that appellee
could not constantly police the area and that the ice
could have built up even though appellee was not
negligent in its attempt to maintain the property.
We have reviewed the record, and find that appellant
did not meet her burden of production of evidence
pursuant to Wing v. Anchor Media, supra. Accordingly, we must conclude that the trial court did not err in
granting summary judgment in favor of appellee.
The first assignment of error is overruled.
II
In appellant’s first set of interrogatories, dated February 18, 1992, she asked for the names of those persons responsible for the maintenance of the premises. Appellee provided the name of the snow-plowing
service which plowed the parking lots. It did not disclose the names of the persons who worked on the
sidewalks in common areas of the mall. On May 5,
1992, appellant submitted her second set of interrogatories, to which defendant responded on July 6,
1992. In response to the interrogatory asking for the
names of the individuals who were responsible for
clearing the sidewalks, appellee responded that it was
“its maintenance personnel.” The actual names of the
employees were not furnished until much later. Appellant deposed the employees on August 11 and August 31, 1992, and the transcribed depositions were
not available to meet the discovery deadline of August 17, 1992. Appellant urges that appellee delayed
discovery in order to prejudice her ability to prosecute her case.
Once appellant had secured the depositions and the
additional evidence, she moved for a reconsideration
of the summary judgment. The trial court overruled
that motion for reconsideration.
First of all, we have reviewed the depositions of the
employees, and find that they do not present sufficient evidence for appellant to survive the motion for
summary judgment. See Part I, supra.
Further, the Ohio Rules of Civil Procedure do not prescribe motions for reconsideration after final judgment in a trial court, see Pitts v. Dept. of Transp.
(1981), 67 Ohio St.2d 378, 21 O.O.3d 238, 423 N.E.2d
1105; State ex rel. Pajestka v. Faulhaber (1977), 50
Ohio St.2d 41, 4 O.O.3d 113, 362 N.E.2d 263. A motion for relief from judgment pursuant to Civ.R. 60(B)
would have vested the trial court with jurisdiction,
but the motion for reconsideration did not.
The second assignment of error is overruled.
For the foregoing reasons, the judgment of the Court
of Common Pleas of Stark County is affirmed.
Judgment affirmed.
READER, J., concurs.
HOFFMAN, J., concurs in part and dissents in part.
WILLIAM B. HOFFMAN, Judge, concurring in part and
dissenting in part.
I concur in the majority’s disposition of appellant’s
second assignment of error. However, I respectfully
dissent from the majority’s decision on the first assignment of error.
As expressly found by the majority, the record evidence relative to the motion for summary judgment,
when considered using the required standard, creates
a disputed issue of fact regarding the source of the
accumulation of ice and whether that accumulation
was natural or unnatural. Furthermore, I believe
there exists a disputed fact as to whether appellee
knew or should have known of this hazard and, if so
known, whether appellee was negligent in not remedying the hazard or warning appellant of its existence.
Though appellant may have an uphill battle demonstrating the same based on the preliminary evidence
before us at summary judgment stage, it nevertheless
was sufficient to withstand appellee’s motion for
summary judgment.
I would reverse the trial court and remand the matter
for further proceedings according to law.
FootNotes
* Reporter’s Note: An appeal to the Supreme Court of Ohio was dismissed as having
been improvidently allowed in (1994), 69 Ohio St.3d 1213, 633 N.E.2d 1136.
Sample paper discussing this case.
You MUST follow this format in your paper.
Case: Myers v. Forest City Enterprises
Chapter 6, Case no. 8, textbook page 197
Paper submitted by Suzie Student March 1, 2021
GENERAL SUBJECT MATTER OF THIS CASE: negligent torts
PROCEDURAL POSTURE: This is an appeal from a trial court decision on a motion for summary judgment. The trial court had found in favor of the defendant, Forest City and the appeal
was filed by the plaintiff, Anna Mae Myers.
A motion for summary judgment takes place before a trial is held, to determine if, assuming
everything the Plaintiff says is true, Plaintiff still has a right to recover. The court can consider
the pleadings filed by the parties, and the discovery (interrogatories and depositions) done by
the parties. In this case, it appears from the opinion that the parties had engaged in some discovery, although the extent of discovery cannot be determined from the opinion. However,
there were some photographs of the scene which were apparently considered by the court.
FACTS:
Plaintiff/appellant sustained injuries in a fall at the entrance to Canton Centre
Mall which is owned and operated by appellee. Appellant fell on December 26, 1990. There had
been no snowfall for several days, no precipitation of any kind that day, and the parking lot was
only slightly damp. Appellant offered photographs of the sidewalk on which she had fallen,
showing that there was an accumulation of ice on the sidewalk. Defendant/Appellee admitted
that it had exclusive control over the premises and that it had undertaken to clean snow and ice
from the premises on a daily basis throughout the winter.
ISSUES:
There are two issues. First, was Forest City negligent in maintaining the sidewalks around its shopping center? Second, was there enough evidence on the record to make a
determination about negligence of Forest City?
LAW:
Negligence is a failure to act as a reasonable person would act in a situation
where one person has a legal duty to another person. In Ohio, a land owner has no duty to its
business invitees to remove natural accumulation of snow and ice from exterior walkways,
however, if it undertakes to do so, the duty to do so in a reasonable manner arises, and it may
not create a dangerous or unnatural accumulation of snow or ice, or be actively negligent in
permitting one to exist on its property. In cases involving an unnatural accumulation of ice and
snow, at trial, the plaintiff must show that the defendant failed to carry out the duty to the patrons when it cleared the snow, and did not create or aggravate the hazard, that the defendant
knew or should have known of the hazard, and that the hazardous condition was substantially
more dangerous than it would have been in the natural state. Under Ohio law, melting snow
that refreezes into ice is natural, and not an unnatural accumulation of ice.
DISCUSSION:
If Forest City undertook to clean the sidewalks, and no new precipitation
fell, then certainly the ice on which plaintiff fell must have been an unnatural or man-made
condition. Appellant deposed several of appellee’s employees, whose testimony demonstrated
that appellee did undertake to clear the sidewalks every morning. One of those employees, Rob-
in Cooper, gave an opion that perhaps passing automobiles had thrown water up on the sidewalk, where it had frozen. However, it appears from the record that no witness actually observed this happening.
Accordingly, the record does demonstrate an issue of fact regarding the source of the
accumulation of ice, and whether it was natural or unnatural. Plaintiff failed to present any evidence that appellee had notice of this hazard. The record shows the contrary, namely, that appellee could not constantly police the area and that the ice could have built up even though appellee was not negligent in its attempt to maintain the property.
DECISION: I think that the court reached the wrong decision. Only a trier of fact or a jury
can determine if the nature of the ice accumulation was natural or man-made, which appears to
be the key part of the negligence test in Ohio. Since summary judgment comes before a trial, it
was incorrect to dispose of the case before trial.
Purchase answer to see full
attachment
