Legal Document: VELVET ROBERSON, ET AL vs. BOSTON MARKET CORPORATION, ET AL

On January 25, 2023 a MOTION FOR SUMMARY JUDGMENT FILED DEFENDANTS' MOTION FOR SUMMARY JUDGMENT 10/30/2023 - HELD IN ABEYANCE - MO was filed involving a dispute between Donald R. Roberson, Velvet Roberson, and Boston Market #0090 C O Gallagher Bassett C O Ct Corporation System, for TORT-MISCELLANEOUS in the District Court of Cuyahoga County.

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Motion No. 5125817

NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113

Court of Common Pleas

October 20,2023 11:17

By: JILLIAN L. DINEHART 0086993

Confirmation Nbr. 2996076

VELVET ROBERSON, ET AL CV 23 974267

vs.
Judge: STEVEN E. GALL
BOSTON MARKET CORPORATION, ET AL

Pages Filed: 27

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IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO

VELVET ROBERSON, et al., ) CASE NO. CV-23-974267
)
Plaintiffs, ) JUDGE STEVEN E. GALL
)
v. ) DEFENDANTS’ MOTION FOR
) SUMMARY JUDGMENT
BOSTON MARKET )
CORPORATION, et al., )
)
Defendants. )
)

NOW COME Defendants, Boston Market Corporation and Boston Market #0090, by and

through counsel, and hereby present their Motion for Summary Judgment as Plaintiffs complain

of an injury caused by an open and obvious condition of which the Defendants had no notice. As

more detailed in the Memorandum in Support, attached and incorporated hereto, Defendants

respectfully request that this Court grant summary judgment on Plaintiffs’ Complaint and render

judgment in favor of the defense.

Respectfully submitted,

MARSHALL DENNEHEY

By: /s/ JiLam, L. DimEaR

JILLIAN L. DINEHART (0086993)
127 Public Square, Suite 3510
Cleveland, Ohio 44114
Phone: 216.912.3800/Fax: 216.912.3801
Email: jldinehart@mdwcg.com
Counselfor Defendants

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MEMORANDUM IN SUPPORT

I. PROCEDURAL HISTORY

On February 6, 2020, Plaintiff Velvet Roberson and Donald R. Roberson filed a personal

injury complaint against Defendants Boston Market Corporation and Boston Market #0090.

Plaintiffs asserted that Defendants were liable for Velvet Roberson’s alleged injuries, losses,

costs, and damages allegedly arising from a February 6, 2018 trip-and-fall incident in the foyer

of the Boston Market located at 4742 Ridge Road in Brooklyn, Ohio. (Roberson I, Compl. filed

February 6, 2020.) The original complaint also set forth a loss of consortium claim for Donald

R. Roberson, Velvet Roberson’s husband. (Id.)

On December 31, 2021, Defendants filed a joint Motion for Summary Judgment in

Roberson I. In relevant part, the Defendants’ Motion for Summary Judgment cited and relied

upon Plaintiff Velvet Roberson’s deposition testimony, taken on October 1, 2021. (Notice of

Filing Deposition dated 12/30/2021). Consistent therewith, on December 30, 2021, Defendants

caused Plaintiff’s deposition transcript to be filed in Roberson I. (Id.). On January 28, 2022,

Plaintiffs dismissed their original action without prejudice without responding to the pending

dispositive motion. (1/28/2022 Notice of Voluntary Dismissal Without Prejudice, filed in

Roberson I).

On January 25, 2023, Plaintiffs re-filed the action against these same Defendants.

(1/25/23 Re-Filed Complaint). On August 3, 2023, Defendants moved this Court to compel the

plaintiffs to respond to written discovery and provide medical record authorizations. (8/3/23

Motion to Compel.) The Motion to Compel also documented Plaintiffs’ failure to respond to

requests to re-depose Plaintiff to determine how her alleged injuries may have progressed. (Id.)

On September 5, 2023, said unopposed motion was granted and the Court ordered Plaintiffs to

provide the discovery responses and medical authorizations to Defendants within seven days of

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the Entry. (9/5/23 Journal Entry.) When Plaintiffs failed to timely comply with the Court’s

order, Defendants moved this Court to dismiss the action for failure to prosecute. (9/14/23

Motion to Dismiss.) Plaintiffs failed to respond to the Motion to Dismiss and the court set a

telephone conference. Plaintiffs failed to appear for the telephone conference with the Court on

October 10, 2023. (10/16/23 Journal Entry.) A hearing on Defendants’ Motion to Dismiss for

Failure to Prosecute is currently scheduled to take place on October 25, 2023, after Defendant’s

dispositive motion deadline. (Id.)

Pursuant to this Court’s July 31, 2023 order, Defendants herein timely file their Motion

for Summary Judgment, again citing to and relying upon Plaintiff Velvet Roberson’s deposition

testimony from the originally filed action as Plaintiffs have failed to respond to each of

Defendants’ requests for discovery in this re-filed matter. This Motion also refers to Plaintiff’s

discovery responses from the originally filed action which will be incorporated herein should this

Court grant Defendants Motion to Transfer Evidentiary Record filed under separate cover. Said

motion is incorporated herein by reference.

II. STATEMENT OF FACTS

On or about February 6, 2018, Mrs. Velvet Roberson entered the Boston Market on Ridge

Road in Brooklyn and ordered a take out meal with her husband. Compl. at 3. On her way out

of the restaurant, Mrs. Roberson alleges that she “tripped and fell forward over the floor covering.”

Compl. at ^5. Mrs. Roberson struck her head and chest against the window, landing on her right

knee. Id. She lost consciousness and was transported to the hospital by ambulance. Id. .

When given free license to make a record as to how the fall occurred, Mrs. Roberson

testified: “As we proceeded out of the door at Boston Market something happened and I flipped

over something, and I had the bags in my hand.” Deposition of Velvet Roberson (“Dep.”) at 13:4-

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6 (Oct. 7, 2021). When she was asked to describe the mats at the doorway, the obstacle alleged to

have caused the fall in the Complaint, Mrs. Roberson testified:

A: “Well, I’ll tell you I didn’t pay any attention until I was laying
on the floor, and I noticed that the mats were wrinkly and old, and I
saw how I tripped.

Q: Tell me how you tripped.

A: My foot went under something and I went forward.

Q: Do you know what your foot went under?

A: The mat.

Q: And how do you know this?

A: I was laying on the floor and I noticed it.

Q: So is it fair to say that you presume that you fell over the mat
or that your foot went under the mat because you were on the floor
and the mat was next to you?

(***)

A: I’m presuming that my foot went under the mat is the reason
why I had tripped.

Dep. at 24:3-22. Mrs. Roberson does not recall what she tripped over. For purposes of this Motion

only, Defendants will presume that the mat was rumpled. However, there is no evidence that the

mat was rumpled or improperly worn. In fact, Mrs. Roberson cannot even testify to the condition

of the mat before she fell. Her foot going under the mat, if that is what actually happened, could

have caused the rumples in the mat that Mrs. Roberson saw while she was on the floor.

Mrs. Roberson had been to this Boston Market several times, perhaps going once every six

weeks. Dep. at 18:20-19:4. On February 6, 2018 when Mrs. Roberson walked into the store, as

well as all the previous times she had been to the store, she did not have trouble walking over the

mat. Dep. At 26:1-7. Mrs. Roberson does not recall the mat being a hazard even though she recalls

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seeing that the mat was old and tattered on a previous visit. Dep. 26:1-21.' Mrs. Roberson testified

that the mat at the Boston Market was dark but that there was adequate lighting within the store to

see the mat. Dep. at 25:3-7. Mrs. Roberson does not recall any other customer coming through

the door and impeding her progress through the exit. Dep. at 20:14-23. She does not recall if her

husband was ahead of or behind her when going through the exit. Dep. at 20:24-21:1. Mrs.

Roberson does not recall any reason she could not appreciate any hazard on the floor should it

have existed prior to her fall.

Despite having waited in line for about ten minutes in the restaurant before she left and

fell, Mrs. Roberson did not recognize the rug as a hazard. Dep. at 15:19-24. As proven by her

above testimony, Mrs. Roberson only presumed that the rug caused her fall because of her

proximity to it afterwards. Dep. at 28:13-16. After the fall, Mrs. Roberson noticed that the entire

mat was rippled. Dep at 28:17-24. She also testified that the rubber portion of the mat was in such

a way that it could not lay flat on the floor and that the carpet portion was not rippled. Dep. at

29:6-11; 30:20-31:2. However, Mrs. Roberson did not testify that she attempted to fix the mat

after she fell, in fact she testified that she kept still until EMS arrived.

A: So I just, you know, was - I do not know why I didn’t go
through it even though I bounced off of it and I got knocked out.”

Q: What happened after that?

A: Sorry about that.

Q: That’s okay. What happened after that?

A: I was knocked out. And one of your managers came to my
aid. My husband was there. Several of the guests that were at your
establishment tried to help. So I was - I was asked not to move after
I woke up. And the young man was standing over me trying to see
-- trying to make sure I was coherent. And then he excused himself

1 Upon further questioning Mrs. Roberson changed her mind and testified that her memory of previously seeing a
tattered rug may have been at a different Boston Market location. Dep. at 28:1-5.

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and went in the back and made a phone call, that’s what he said,
‘I’m going to call the ambulance right now.’ And that’s what
happened.

Q: And how long did it take for the ambulance to come?

A: I don’t - do not remember how long it took. I just don’t
remember whether how quickly, you know, it arrived or how long it
took. I just remember laying on the floor and waiting for the
ambulance to get there. I wasn’t able to move.

Dep. 13:13-14:8.

Upon review of internal records, the mat that Plaintiff alleges she tripped over was owned

by Aramark Uniform Services, not by these Defendants. See Defendants’ Responses to ROG 6

and 7 with verification, attached hereto as Exhibit A. Regardless, there had been no falls reported

near the entrance of the store in the three years prior to Mrs. Roberson’s fall. See Response to

ROG 11 with verification, attached hereto as Exhibit A. There is no evidence that Boston Market

was aware that the mat presented a hazard, how long the alleged hazard existed, or that Boston

Market created the hazard.

III. LAW AND ARGUMENT

1. STANDARD OF REVIEW

Pursuant to Civ. R. 56(C), summary judgment is proper if: (1) no genuine issue as to any

material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of

law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion,

and viewing such evidence most strongly in favor of the party against whom the motion for

summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc.

(1977), 50 Ohio St. 2d 317, 327, 364 N.E.2d 267.

The party seeking summary judgment initially bears the burden of informing the trial court

of the basis for the motion and identifying portions of the record demonstrating an absence of

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genuine issues of material fact as to the essential elements of the nonmoving party’s claims.

Dresher v. Burt (1996), 75 Ohio St. 3d 280, 293-94, 1996-Ohio-107, 662 N.E. 2d 264. Material

facts are those facts that might affect the outcome of the suit under the governing law of the case.

Turner v. Turner, 67 Ohio St. 3d 337, 340, 1993-Ohio-176, 617 N.E.2d 1123 (citing Anderson v.

Liberty Lobby, Inc. (1986), 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202).

The movant must point to some evidence in the record of the type listed in Civ. R. 56(C)

in support of his motion. Dresher, 75 Ohio St. 3d at 293. Once this burden is satisfied, the

nonmoving party has the burden, as set forth in Civ. R. 56(E), to offer specific facts showing no

genuine issue for trial. To determine what constitutes a genuine issue, the court must decide

whether the evidence presents a sufficient disagreement to require submission to a jury, or whether

it is so one-sided that one party must prevail as a matter of law. Turner, 67 Ohio St. 3d at 340.

The Ohio Supreme Court in Norris v. Ohio Standard Oil Co. (1982), 70 Ohio St. 2d 1, 2, 433

N.E.2d 615, stated that “[s]ummary judgment is a procedural device to terminate litigation and to

avoid a formal trial where there is nothing to try.” See Viock v. Stowe-Woodward Co. (1983), 6th

Dist. No. E-83-13, 13 Ohio App. 3d 7, 467 N.E.2d 1378.

2. NEGLIGENCE STANDARD FOR TRIP-AND-FALL LITIGATION

In order to establish an actionable negligence claim, a plaintiff "must show the existence

of a duty, a breach of the duty, and an injury resulting proximately therefrom." Menifee v. Ohio

Welding Prods., Inc, 15 Ohio St.3d 75, 77, 15 Ohio B. 179, 472 N.E.2d 707 (1984). Under Ohio

law, "[a] shopkeeper owes business invitees a duty of ordinary care in maintaining the premises in

a reasonably safe condition so that its customers are not unnecessarily and unreasonably exposed

to danger." However, a shopkeeper "is not (***) an insurer of the customer's safety [and] is under

no duty to protect business invitees from dangers which are known to such invitee or are so obvious

and apparent to such invitee that he may reasonably be expected to discover them and protect

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himself against them.'" Cage v. Sutherland Bldg. Prods., 10th Dist. Franklin No. 14AP-227, 2014-

Ohio-3891, 10 (internal citations omitted).

A business owner's duty to protect its invitees from dangers is limited by what the business

owner knows or should have known of the danger. To establish that Boston Market failed to

exercise ordinary care in the present case, Plaintiffs must demonstrate the following:

(1) That the defendant created the hazard; or

(2) That the defendant had actual knowledge of the hazard and failed
to give adequate notice of its existence or to remove it promptly; or

(3) That the hazard existed for a sufficient length of time to justify
the inference that the failure to warn against it or remove it was
attributable to a lack of ordinary care.

Adkins v. ChiefSupermarket, 3d Dist. Paulding No. 11-06-07, 2007-Ohio-772, 14. As discussed

below, Plaintiffs have no evidence regarding any of these factors.

3. THERE IS NO DUTY TO WARN OF AN OPEN AND OBVIOUS
CONDITION

Defendants deny that the mat was a hazard, however Boston Market did not have the duty

to warn the Plaintiff if the mat had rumpled because it was an open and obvious condition that

Plaintiff could have easily seen. In Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-

2573, 788 N.E.2d 1088, 13 the Supreme Court of Ohio recognized that "the open-and-obvious

doctrine relates to the threshold issue of duty in a negligence action." If a condition is open and

obvious, "the premises owner is absolved from taking any further action to protect the plaintiff."

Matt v. Ravioli, Inc., 8th Dist. No. 100553, 2014-Ohio-1733, 10. Thus, "[w]hen the open-and-

obvious doctrine is applicable, it obviates the duty to warn and acts as a complete bar to recovery."

Id. Further, a dangerous condition "does not actually have to be observed by the claimant to be an

open and obvious condition under the law. * * * Rather, the determinative issue is whether the

condition is observable." Cage v. Sutherland Bldg. Prods., 10th Dist. Franklin No. 14AP-227,

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2014-Ohio-3891, 11, citing Kraft v. Johnny Biggs Mansfield, LLC, 5th Dist. No. 2012 CA 0068,

2012-Ohio-5502, 16. In circumstances where a hazard "is not hidden from view, or concealed,

and is discoverable by ordinary inspection, a trial court may properly sustain a motion for summary

judgment made against the claimant." Cage v. Sutherland Bldg. Prods., 10th Dist. Franklin No.

14AP-227, 2014-Ohio-3891, 14, citing Matt, 2-14-Ohio-1733 at 9. "Consequently, the

dangerous condition at issue does not actually have to be observed by the plaintiff in order for it

to be an 'open and obvious' condition under the law. Ohio courts have found that no duty existed

in cases where the plaintiff did not notice the condition until after he or she fell, but could have

seen the condition if he or she had looked." Alfonso v. Marc Glassman, Inc., 9th Dist. Summit No.

24604, 2009-Ohio-5149, 13 (internal citations omitted).

Courts across Ohio have routinely held that a carpet, mat or rug presents an open and

obvious danger. The Tenth District has held that a rug is an open and obvious condition and that

a property owner does not owe a duty to an invitee that trips over the rug. In Cage v. Sutherland

Bldg. Prods., 10th Dist. Franklin No. 14AP-227, 2014-Ohio-3891, 14, at fn. 1, the Tenth District

held that “[t]he placement of a mat/rug at the entrance of a store does not, in and of itself, create

an unreasonably dangerous condition.” See Brown v. Twins Group-PH, LLC, 2d Dist. No.

2004CA59, 2005-Ohio-4197, 16 (“Although it is common for a mat's corner to flip up, mats

placed on floor as a safety measure were not hazards. Even if they had been, they were open and

obvious").

In Wilson, the court found that where the plaintiff had no trouble seeing the rug at the store

entrance, the store was well lit, the store did not have a duty to protect the plaintiff from a condition

that was open and obvious and that she could have been reasonably expected to discover and

protect herself against. See also Smock v. Bob Evans Farms, Inc., 9th Dist. No. 02CA008075,

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2003-Ohio-832 (applying open and obvious doctrine where curled up floor mat was easily

discoverable, lobby was well lit, and nothing obstructed patron's view).

The First District also has a history of finding that a floor mat or rug is an open and obvious

condition for which a property owner does not a duty to warn. In Martin v. Christ Hosp., 1st Dist.

Hamilton No. C-060639, 2007-Ohio-2795, 1, the First District found that the trial court did not

err in granting summary judgment to a hospital in a negligence action where the rug that the

plaintiff had tripped over was open and obvious. That court held that the rug was open and obvious

because “the door leading into the entryway where the accident occurred was translucent; the rug

was right in front of the plaintiff after she opened the door (outward); the entryway was well lit;

nothing obstructed the plaintiff's view; the plaintiff had used the same entrance multiple times; and

the rug and the surrounding carpet were of contrasting colors.”

In Darah v. Coaching by Kurt, L.L.C., 6th Dist. Lucas No. L-16-1071, 2016-Ohio-7523,

17 the Sixth District determined that a gym owner, who knew that there were bumps in its rubber

flooring that were trip hazards was not liable to a plaintiff that tripped over these bumps despite

the plaintiffs testimony that the bumps were not visible. The Ninth District determined that even

though the bumps were not immediately visible, because the bumps were observable, the gym

owner was not liable to its member. Similar to this case, even though Mrs. Roberson did not look

at the mat before she exited the store, because she could have seen the hazard, Boston Market

should not be held liable for failing to protect her from the alleged risk. There are myriad cases

with similar holdings:

• In Lowe v. Local Union No. 14 U.A. W., 6th Dist. No. L-19-1042, 2020-Ohio-703,

145 N.E.3d 363, 26, the Sixth District held that a defendant was not liable when

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a plaintiff's foot slid under a mat, the same situation that Plaintiff herein has

alleged, because the mat was open and obvious.

• In Von Gunten v. Wal-Mart Stores, E., Inc., 5th Dist. Stark No. 2011CA00037,

2011-Ohio-4976, 16-17, the Fifth District held that when a plaintiff tripped on

the edge of a buckled entryway mat, even though distracted by a Sam’s Club

greeter, the mat was open and obvious and without attendant circumstances that

could have made defendant liable for the hazard.

• In Alfonso v. Marc Glassman, Inc, 9th Dist. Summit No. 24604, 2009-Ohio-

5149, the Ninth District found that a store-owner was not liable when a plaintiff

tripped over humps in the store’s carpet.

• In Montgomery v. Polansky, 11th Dist. Trumbull No. 2005-T-0024, 2006-Ohio-

1463, 24, the Eleventh District found that the plaintiff was highly familiar with

the defendant’s salon and was aware of the condition of the frayed mats.

However, because nothing obstructed plaintiff's view and because she testified

the mat was neither hidden nor concealed, the trial court did not err by granting

summary judgment in the salon owner’s favor.

In this case, Mrs. Roberson testified that the mat was visible, that there was adequate

lighting in the area, and that she does not recall any distractions short of carrying her own bag.

Pursuant to the above case law, the rumple in the rug, should it have existed, was an open and

obvious condition for which Defendants had no duty to warn Plaintiff.

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4. PLAINTIFFS HAVE NO EVIDENCE OF PROXIMATE CAUSE

In the event that this Court finds that the rug was not an open and obvious condition, then

it should analyze proximate cause. Mrs. Roberson can only speculate, after the fact, what caused

her fall. Speculation does not meet the burden of establishing proximate cause.

Where a plaintiff cannot identify what caused her to fall, the defendant is entitled to

summary judgment. Taggart v. Professional Maintenance, 10th Dist. Franklin No. 93AP-504,

1993 Ohio App. LEXIS 3915, at *7 (Aug. 12, 1993), fn. 1. "Speculation or conjecture on a

plaintiff's part as to the culpable party who caused her fall and what caused her fall is not sufficient,

as a matter of law, since the issue of proximate cause is not open to speculation[.]" Benton v.

Cracker Barrel Old Country Store, Inc., 10th Dist. Franklin No. 02AP-1211, 2003-Ohio-2890,

22, citing Guyton v. DeBartolo, Inc., 8th Dist. Cuyahoga No. 65268, 1993 Ohio App. Lexis 5261

(Nov. 4, 1993). See also Lyle v. PK Mgt., LLC, 3d Dist. Hancock No. 5-09-38, 2010-Ohio-2161,

25 [defendant argued, and court agreed, that plaintiff's rhetorical response to a question regarding

("how else would I fall?") would support the trial court's conclusion that plaintiff's evidence of

proximate cause was "guesswork" and insufficient to defeat defendant’s motion for summary

judgment.]

In this case, Mrs. Roberson can only provide guesswork about her fall. She testified as

follows:

Q: Do you know what your foot went under?

A: The mat.

Q: And how do you know this?

A: I was laying on the floor and I noticed it.

Q: So is it fair to say that you presume that you fell over the mat or that your foot went

under the mat because you were on the floor and the mat was next to you?

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***

A: I’m presuming that my foot went under the mat is the reason why I had tripped.

Dep. at 24:6-22. Mrs. Roberson cannot testify as to what exactly caused her fall. Mrs. Roberson

also could not testify as to the condition of the mat prior to her fall. She admits that she did not

look down at the mat when she came into the store or as she exited. Dep. at 24:3-4, 25:8-16.

In Edens v. Pla-Mor, 5th Dist. Stark Case No. 98-CA-00084, 1998 Ohio App. LEXIS 5239,

at *2 (Oct. 5, 1998), the court reviewed a similar situation and found that where the fall had

changed the condition of the rug, and where the plaintiff could not testify as to the condition of the

rug prior to the fall, plaintiff was unable to establish proximate cause. See also Wilson, supra at

*8-9 (finding that plaintiff could not identify why she fell other than that her feet got "tangled up"

in the rug, therefore, there was no evidence that the wrinkle in the rug was the proximate cause of

her fall.) Although Plaintiff Roberson has pled that the rug was rumpled prior to her fall and could

not sit flat, she did not actually see the rug before the fall and thus cannot provide evidence that

the rug was a hazard prior to her fall or if the rug became rumpled in her fall. Furthermore, she

cannot testify as to the permanence of the condition of the rug because she made no attempt to fix

the rug after her fall, and thus she cannot testify as to whether then rug could lay flat. Plaintiff has

admittedly presumed that the rug caused her fall. Dep. at 24:21-22. Without actual knowledge as

to the cause of the fall, Defendant is entitled to summary judgment.

5. PLAINTIFFS CANNOT PROVE NOTICE

If this Court fails to find that the rumpled rug, if it existed, was an open and obvious

condition, or that it is not identifiable as the proximate cause of Plaintiff’s fall, then this Court

must consider whether the Defendant had notice of the rumpled rug. It is Plaintiffs’ burden to

prove that the Defendants had actual or constructive notice of the dangerous condition. Johnson

v. Wagner Provision Co, 141 Ohio St. 584, 589, 49 N.E. 2d 925 (1943). There is no evidence in

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the record that the Defendant was aware that the rug was rumpled. Nor is there evidence in the

record about the amount of time in which the condition had persisted.

“When a plaintiff alleges negligence based upon the ‘existence of a defect or hazard, actual

or constructive notice of the defect is an essential element in perfecting the claim that the owner

or occupier of the premises failed to comply with the requirement of reasonable care.’” Sharp v.

Andersons, Inc., 10th Dist. Franklin No. 06AP-81, 2006-Ohio-4075, 11, citing Murphy v. K

Mart, 10th Dist. Franklin No. 97APE08-1129, 1198 Ohio App. Lexis 1119. "Where no evidence

shows how a substance came to be on the floor or how long it had been there, a plaintiff cannot

show that the store breached a duty of ordinary care." Sharp, at 13, citing Barker v. Wal-Mart

Stores, Inc., Franklin App. No. 01AP-658, 2001 Ohio 8854. Without evidence pertaining to notice

of the alleged defect, Defendants are entitled to summary judgment.

6. PLAINTIFFS MUST BE PRECLUDED FROM OFFERING EVIDENCE
THAT WAS NOT PRODUCED IN THE ORIGINALLY FILED ACTION.

Should Plaintiffs oppose the instant Motion for Summary Judgment, they must be

precluded from offering competing evidence that was not previously produced in the originally

filed action. Defendants have exceeded all reasonable efforts to obtain discoverable documents

and testimony from Plaintiffs since Plaintiffs re-filed their case. Written discovery requests went

unanswered. Requests for the Plaintiffs’ depositions were also unanswered. All of Defendants’

attempts to obtain discovery under the civil rules has been met with Plaintiffs’ complete lack of

response. Even when Defendants moved this Court to compel Plaintiffs’ responses to the written

discovery requests and requests for medical authorizations, Plaintiffs failed to oppose or

acknowledge the motion in any way. Furthermore, when the Court granted Defendants’ motion

and compelled the Plaintiffs to respond to the discovery and provide the authorizations to

Defendants within seven days of the journal entry, Plaintiffs ignored the Court’s order and failed

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to appear at a subsequent status conference. Even Defendants’ Motion to Dismiss for Failure to

Prosecute has gone unanswered by Plaintiffs. Given Plaintiffs’ complete abandonment of the

case and refusal to provide discovery, it would be simply unjust to now permit Plaintiffs to

oppose this motion using evidence they have been withholding since June of 2023. To allow

additional testimonial or other evidence to rebut this dispositive Motion would amount to an

impermissible trial by ambush. See Civ. R. 26.

IV. CONCLUSION

Mrs. Roberson cannot testify as to the cause of her fall. No one can. However, even if

she could pinpoint the mat as being the reason she fell, Mrs. Roberson cannot testify as to the

condition of the mat prior to her fall, how long that condition had existed, or whether or not

Boston Market had created the condition. This is especially true considering the fact that the mat

was not owned or serviced by Boston Market and was replaced on a weekly basis. Finally, even

if Plaintiffs can fulfill the notice requirements of this trip-and-fall claim, the claim is still

defeated by the open-and-obvious doctrine. As demonstrated in this Motion, it is well-settled

law in Ohio that a mat, in any condition, is an open-and-obvious hazard that a plaintiff must

appreciate on its own. Boston Market had no duty to warn Mrs. Roberson of an open and

obvious hazard if one had even existed. For all of these reasons, Defendants are entitled to

summary judgment.

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15
Respectfully submitted,

MARSHALL DENNEHEY

By:_ /s / Jillian L. D i/Nelva/rl
JILLIAN L. DINEHART (0086993)
127 Public Square, Suite 3510
Cleveland, Ohio 44114
Phone: (216) 912-3823
Fax: (216) 344-9006
Email: jldinehart@mdwcg.com
Counselfor Defendants

CERTIFICATE OF SERVICE

I hereby certify that on October 20, 2023, a copy of the foregoing was filed
electronically. Notice of this filing will be sent to all parties by operation of the Court’s
electronic filing system and by electronic mail as follows:

ROBERT SMITH, III (0025381)
Robert.Smith@RS3Law.com
Counselfor Plaintiffs

MARSHALL DENNEHEY

By:_ /s / JiLlian L. DtneJnarl

JILLIAN L. DINEHART (0086993)
Counselfor Defendants

Electronically Filed 10/20/2023 11:17 / MOTION / CV 23 974267 / Confirmation Nbr. 2996076 / CLJSZ
16
EXHIBIT A

Electronically Filed 10/20/2023 11:17 / MOTION / CV 23 974267 / Confirmation Nbr. 2996076 / CLJSZ
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
CIVIL DIVISION

)
VELVET ROBERSON, ET AL. ) CASE NO. CV-20-929073
)
Plaintiffs, ) JUDGE STEVEN E. GALL
vs. )
)
BOSTON MARKET CORPORATION, )
ET AL., )
)
Defendants. )
____________________________)________________________________
DEFENDANTS’ BOSTON MARKET CORPORATION AND BOSTON MARKET #0090
RESPONSES TO PLAINTIFF’S FIRST SET OF INTERROGATORIES, AND REQUESTS
FOR PRODUCTION OF DOCUMENTS

Interrogatory No. 1
With respect to the person answering these Interrogatories and in responding to these

Requests For Production Of Documents state his/her full name; business address and

telephone number; job title and classification; occupation; name of immediate supervisor;

length and date of employment with Defendant.

Answer: Marie-Louise Bahlinger, general counsel, with the assistance of counsel, Jillian Dinehart.

Ms. Bahlinger is located in Golden, Colorado and may be contacted through counsel. Ms. Bahlinger

does not have direct knowledge of the incident.

Interrogatory No. 2
What is your “capacity” and “competency” to answer these Interrogatories and to respond

to the corresponding Requests For Production OfDocuments?

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Answer: Objection. Plaintiff's request is not readily understood as capacity and competency are

legal concepts not related to factual responses to discovery. Without waiving said objection, Ms.

Bahlinger is general counsel for Boston Market.

Interrogatory No. 3
State the name and job/position title of the store manager(s), district manager, regional

manager, of the Defendant Boston Market Corporation, store located at 4742 Ridge Road, Brooklyn,

Ohio 44144-Store #0090 (“the premises”), on February 6, 2018.

Answer: Julie Hendricks. She is no longer an employee. Ms. Hendricks last known address is 6060

Stumph Rd., Apt 103 a, Parma, OH 44130

Interrogatory No. 4
State the name(s) the store manager(s) responsible for the, day to day, operation and/or

management of the Defendant Boston Market Corporation, store located at 4742 Ridge Road,

Brooklyn, Ohio 44144-Store #0090 (“the premises”), on February 6, 2018.

Answer: See response to Interrogatory No. 3.

Interrogatory No. 5
State the name of the store manager(s)/assistant store manager(s) who was/were on the

premises on February 6, 2018, when Plaintiff, Velvet Roberson was present on the premises.

Answer: See response to Interrogatory No. 3.

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Request For Production No. 1
Produce complete job/position descriptions for each person identified in your responses to

Interrogatory Nos. 3, 4 and 5, herein above.

Response: See attached job description for Hourly Shift Supervisor

Request For Production No. 2
Produce any and all documents, incident reports, records, safety reports, schematics and/or

communications created, written, prepared and/or reviewed by each person identified in your

responses to Interrogatory Nos. 3, 4 and 5, herein above, regarding Plaintiff Velvet Roberson’s

presence on the premises on February 6, 2018. (See Definitions And Instructions, Nos. 3 and 4,

herein above).

Response: Objection. Plaintiff’s request seeks information that could include work product in

anticipation of litigation. Without waiving said objection, none.

Request For Production No. 3
Specifically, for the foyer area, of the premises produce any and all maintenance schedules,

reports and records for the period January 28, 2018 through February 16, 2018.

Response: None. The entire public area of the store is cleaned daily and is spot checked throughout

the day.

Interrogatory No. 6
State whether during January and February 2018, Defendants contracted with a third- party

to provide floor coverings for the foyer area of the premises.

Answer: Yes.

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Interrogatory No. 7
If your Answer to Interrogatory No. 6, herein above, is affirmative identify the contractor, by

name, business address and telephone number.

Answer: Aramark Uniform Services

Interrogatory No. 8
If your Answer to Interrogatory No. 6, herein above, is affirmative state whether Defendants

initiated any insurance claim or claim for indemnification etc. against the contractor in relation to

Plaintiff Velvet Roberson’s presence on the premises on February 6, 2018.

Answer: Not as of date of response.

Request For Production No. 4
If your Answer to Interrogatory No. 8, herein above, is affirmative produce any and all

communications and/or documents related to the insurance claim or claim for indemnification

against the contractor in relation to Plaintiff Velvet Roberson’s presence on the premises on February

6, 2018.

Response: N/A

Interrogatory No. 9
State whether Defendant’s agents, employees and/or officials obtained either written or oral

statements/reports from Plaintiffs, Velvet Roberson or Donald R. Roberson regarding their presence

on the premises on February 6, 2018.

Answer: No.

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Request For Production No. 5
If your Answer to Interrogatory No. 9, herein above, is affirmative produce complete copies

of their written statements or summaries of their oral statements.

Response: N/A

Request For Production No. 6
Produce any and all electronic and/or digital images of the foyer of the premises on February

6, 2018, after Plaintiff, Velvet Roberson fell up until the time that the Brooklyn Fire Department

transported her to University Hospitals of Cleveland Parma Emergency Department.

Response: None.

Interrogatory No. 10
Identify any insurance agreement(s)/policy(ies) pursuant to which Defendants have coverage

to satisfy part or any part of any judgment which may be entered in this action, or to indemnify or

reimburse the Defendants for payments made to satisfy the judgment, including in your answer, the

amount and limits of any such liability insurance coverage.

Answer: See attached dec page.

Request For Production No. 7
Produce certified copies of each insurance agreement/policy identified in your Answer to

Interrogatory No. 10, herein above.

Response: See attached dec page. A certified copy of the policy can be supplemented.

Interrogatory No. 11
Identify by the customer’s/person’s name and date of incident(s) of any previous or

subsequent incidents to February 6, 2018, that occurred on the premises, of which you are aware

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which occurred in substantially the same manner and/or circumstances as the incident complained

of by Plaintiff in her Complaint.

Answer: Objection. Plaintiff's request is not reasonably related to the discovery of admissible

evidence and is overbroad and vague as to time and location. Defendants further object to providing

the customer’s name as none are witnesses to the incident. Without waiving said objection there

were no falls near the front door in the three years before the incident.

Request For Production No. 8
Please produce copies of any and all documents relevant to your Answer to Interrogatory

No. 11, herein above. (See Definitions And Instructions, paragraph nos. 3, and 4, herein above).

Response: N/A

Interrogatory No. 12

State the name, present address and telephone number of each and every person you will

call or expect to call as a witness at the trial of this matter and summarize what you expect the

testimony of each such witness to be.

Answer: Objection. Witnesses will be identified in accordance with this Court’s order and the local

and state rules.

Interrogatory No.13

Identify by name, present business address and telephone number each person you have

consulted as an expert witness with respect to this case.

Answer: Objection. Plaintiff seeks information protected by work product privilege.

Interrogatory No.14

Identify by name, present business address and telephone number each person you will call

or that you expect to call as an expert witness at any hearing and/or trial of this case.

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Answer: Objection. Witnesses will be identified in accordance with this Court’s order and the

local and state rules.

Interrogatory No.15

With respect to each expert witness identified in your Answers to Interrogatory Nos.

13 and 14, herein above, describe the subject matter and opinion(s) upon which each such expert

witness is expected to testify.

Answer: Objection. Witnesses will be identified in accordance with this Court’s order and the local

and state rules.

Request For Production No. 9

Produce a current curriculum vitae for each person identified in your Answers to

Interrogatory Nos. 13 and 14, herein above.

Response: Objection. Witnesses will be identified in accordance with this Court’s order and the

local and state rules.

Request For Production No. 10

Produce copies of any reports and/or opinions rendered by each person identified in your

Answers to Interrogatory Nos. 13 and 14, herein above.

Response: Objection. Witnesses will be identified in accordance with this Court’s order and the

local and state rules.

Request For Production No. 11

Produce a copy (ies) of any and all written statement(s) or the summaries of any

oral statement(s) of Defendants’ agents, employees and/or representatives regarding the

subject matter of this lawsuit.

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Response: Objection. Plaintiff's request seeks material that could be protected by work-product

privilege. Without waiving said objection, none.

Request For Production No. 12

Please produce all statements, including but not limited to witness statements,

reports, photographs, digital or electronic images or recordings recorded, created, obtained and/or

secured made by any Defendant agent, employee, official and/or representative regarding the

subject matter of this lawsuit.

Response: Objection. Plaintiff's request seeks material that could be protected by work-produc

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