Johnson v. Smith

Summary

The Ninth District Court of Appeals of Ohio reviewed a summary judgment ruling in a sidewalk-injury negligence and negligence per se action. The court held that genuine issues of material fact existed regarding causation and that the injured plaintiff's statement to a neighbor was admissible as an excited utterance. It affirmed the ruling in part, reversed it in part, and remanded for further analysis of the negligence per se claim; a dissent would have affirmed based on the absence of a duty.

Holdings

1. Summary judgment could not be sustained on the ground that the Johnsons failed to establish causation because the record contained evidence from which a reasonable factfinder could conclude that the uneven sidewalk caused Johnson's fall. The matter had to be remanded for the trial court to fully analyze the negligence per se claim.
2. At a minimum, Johnson's statement to the neighbor that he tripped on the uneven sidewalk was admissible as an excited utterance because he remained under the stress of excitement caused by the fall and his serious injuries.
3. The neighbor's observations of Johnson's location and the uneven sidewalk were not hearsay and supplied circumstantial evidence from which a factfinder could infer that Johnson tripped on the uneven sidewalk.
4. The first assignment of error was overruled because, even assuming the trial court abused its discretion by failing to consider the expert materials, the Johnsons did not demonstrate prejudice; the expert materials did not address the ordinance underlying the negligence per se claim, and the Johnsons did not seek a remand for trial on the ordinary negligence claim.

Questions Presented

1. Whether summary judgment was proper on the Johnsons' negligence per se claim based on an alleged violation of Macedonia Codified Ordinance 521.06(a), particularly where evidence created a genuine issue of material fact regarding causation.
2. Whether the trial court improperly excluded or failed to consider the neighbor's affidavit statement identifying the uneven sidewalk as the cause of Johnson's fall.
3. Whether the trial court abused its discretion or otherwise prejudiced the Johnsons by failing to consider their expert affidavit and report.

Disposition

reversed_and_remanded