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Booker v. Revco DS8/19/1996
Per Curiam.
Plaintiff-appellant, Ramona V. Booker, appeals the summary judgment in favor of defendant-appellee, Revco DS, Inc., and she assigns the following error for our review:
"I. The trial court erred in granting defendant-appellee's motion for summary judgment because plaintiff provided appropriate evidence to withstand summary judgment and demonstrated that there exists an issue of fact in this case as to whether defendant-appellee breached its duty of care to Ms. Booker.
"II. The trial court decision granting defendant-appellee's motion to exclude plaintiff-appellant's expert's testimony at trial was arbitrary and capricious and therefore, should be reversed."
Having reviewed the record of the proceedings and the legal arguments presented by the parties, we reverse the judgment of the trial court and remand this cause for trial. The apposite facts follow.
On October 1, 1992 at approximately 4:30 p.m., Booker entered Revco drugstore to get a prescription refilled. The store was located at 4051 Lee Road, in a strip mall near the corner of Harvard and Lee roads in the city of Cleveland.
At the time, Booker was seventy-four years of age, had previously had heart and knee surgery, and used a cane for walking. The entrance to the Revco included two sets of doors, each set included one door for ingress and one for egress, and the two sets of doors were separated by a small vestibule. She described the two doors leading into the store as "heavy." Next to the interior set of doors on the inside of the store there were electronic antitheft devices with short coils between the antitheft devices and the doors. Normally, when Booker went to the drugstore, her daughter would accompany her, or someone else would help her open the doors.
On this particular day, she tried to get through the doors herself. She used both hands and let her cane drag while she pushed through the first door. She put her cane down as she pushed through the second door, which she described as "much heavier" and harder to open because it closed faster. As she opened the second door, she put her cane down to go through and "the cane got caught in the part where the coil was, instead of in front of it." Consequently, she fell and injured her chest and her knee.
Booker filed a complaint against Revco DS, Inc. and Sensormatic Distributors, Inc. alleging that Revco negligently created and maintained a dangerous condition on its premises and both defendants negligently installed and placed the antitheft device.
On May 24, 1995, the trial court conducted a case management conference and issued an order with the following schedule: "Plaintiff expert report due July 3, 1995, Defendant expert report due September 1, 1995, Discovery cut-off September 18, 1995, Final Pretrial set September 21, 1995, and Trial set October 5, 1995.11
On July 18, 1995, Booker's counsel filed a motion for enlargement of time until September 1, 1995 to file plaintiffs expert report. Plaintiffs expert report was sent to counsel for Revco and Sensormatic on August 7, 1995. The motion for enlargement of time was denied.
Revco moved to exclude the trial testimony of plaintiff's expert, Edward Swick, and separately moved for summary judgment. Booker filed a brief in opposition to summary judgment and included Swick's affidavit. Swick was a licensed architect. He averred that the swing of the doors at Revco was not in compliance with the Ohio Building Code or the Americans with Disabilities Act Accessibility Guidelines as required by the Ohio Building Code. Ultimately, he averred that the "conditions [of the doo
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