Icy Lot and a Last-Minute Affidavit
In Franklin County Common Pleas, Maria sues a grocery chain after slipping on ice in its parking lot at 9:30 a.m. on January 12. The store moves for summary judgment under Ohio Civ.R. 56 and attaches an affidavit from its manager: he inspected the lot at 7:00 a.m., spread salt, saw no ice, and received no complaints; the temperature was 18°F. Maria responds with her own affidavit: she saw a sheet of ice near the cart return, and a cashier told her, “We ran out of salt yesterday.” She attaches two photos of the lot, but no affidavit authenticates them and they contain no metadata. The store argues the cashier’s statement is hearsay and the photos are unauthenticated. Maria argues summary judgment is improper because the store’s manager is credibility-challenged and a jury should decide. The court must decide what evidence it may consider and whether a genuine issue of material fact exists.
1. What burden does the grocery chain bear under Ohio Civ.R. 56, and what materials may the court consider?
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Under Ohio Civ.R. 56(C), summary judgment is proper only if (1) no genuine issue of material fact remains, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can reach only one conclusion, with evidence construed in the nonmoving party’s favor. The moving party bears the initial burden to identify portions of the record-pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts, or stipulations-that show the absence of a genuine issue. If that burden is met, the nonmoving party must set forth specific facts showing a genuine issue for trial. Under Civ.R. 56(E), affidavits must be based on personal knowledge, set forth admissible facts, and show the affiant’s competency. The store’s manager affidavit is competent as to his 7:00 a.m. inspection, but it does not establish conditions at 9:30 a.m.
2. How should the court treat the cashier’s statement and the two photographs?
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The cashier’s statement is offered for its truth-that the store had run out of salt-so it is hearsay unless an exception applies. Ohio Evid.R. 801(D)(2)(d) treats a statement by the party’s agent or employee as nonhearsay if it concerns a matter within the scope of the agency or employment and was made during the relationship. A cashier’s statement about salt supplies may qualify, but Maria must lay a foundation that the speaker was an employee and that the statement concerned her duties; without it, the statement should not be considered. The photographs are not self-authenticating. Under Evid.R. 901, someone with knowledge must authenticate them, and at summary judgment they must be presented in a Civ.R. 56(C) form, typically through an affidavit. Unauthenticated photos containing no metadata are not proper evidence and should be excluded from the summary-judgment record.
3. Should the court grant summary judgment? Explain.
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Summary judgment should be denied. The store’s affidavit shows an inspection and salting at 7:00 a.m., but Maria’s affidavit states she saw a sheet of ice at 9:30 a.m. near the cart return. That is a specific, personal observation, not a bare legal conclusion, and it creates a genuine issue on the existence of a hazardous condition and constructive notice. The cashier’s statement, if properly founded, reinforces the issue by suggesting the store knew salt was unavailable. The court does not weigh credibility or decide whether Maria or the manager is more believable; those are jury questions. Even without the photographs, the competing affidavits are enough to defeat summary judgment. The store may still argue comparative negligence or open-and-obvious danger at trial, but it has not shown entitlement to judgment as a matter of law.