COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67872 UMBERTO BRANDIMARTE : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION MRS. ROYAL D. PACKARD, ET AL. : : Defendant-appellees : : DATE OF ANNOUNCEMENT : MAY 18, 1995 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-247820 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellees: WILLIAM L. BLAKE, ESQ. JOSEPH R. WANTZ, ESQ. 900 Rockefeller Bldg. 2121 Superior Avenue, N.E. 614 Superior Avenue, N.E. Cleveland, OH 44113 Cleveland, OH 44113 KEVIN F. PAYNE, ESQ. PAYNE & PAYNE 1535 Leader Bldg. Cleveland, OH 44114-1401 - 2 - PATTON, C.J. Plaintiff Umberto Brandimarte alleged he caught his foot against a pole lamp located in a darkened boiler room owned by defendant Royal Court Condominium Association. His subsequent fall caused him to injure his back. He brought this action against the association, the company that managed affairs for the association, the company that performed cleaning services for the association and the owner of the lamp. The trial court granted the unopposed motions for summary judgment filed by each defendant. Plaintiff appeals and assigns two errors challenging the summary judgments. Plaintiff first argues the trial court abused its discretion by refusing to grant his motion for additional time in which to produce affidavits pursuant to Civ.R. 56(F). He maintains circumstances prevented him from divulging to his counsel important information that would assist in opposing the motions for summary judgment. The record fails to show that plaintiff requested any 1 continuance pursuant to Civ.R. 56(F). It appears plaintiff filed 1 Civ.R. 56(F) provides: (F) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion for summary judgment that he cannot for sufficient reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application or judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just. - 3 - two motions for extensions of time in which to respond to the motions for summary judgment; however, only one of those motions appears in the record. That motion requested additional time in which to respond because counsel "has had to complete extensive other legal work" related to this action. The motion did not cite to Civ.R. 56(F) nor could anything contained in the motion be construed as falling within Civ.R. 56(F). A second motion for a continuance was filed, but it is not in 2 the record. App.R. 9 places the responsibility for filing the record with the appellant and, in the absence of documents demonstrating the error complained of, we must presume regularity in the proceedings. See Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197; Columbus v. Hodges (1987), 37 Ohio App.3d 68. In any event, plaintiff did not seek a second extension of time until eleven days after the court's deadline for filing a brief in opposition to the motions for summary judgment. Under the circumstances, we cannot conclude the trial court abused its discretion by failing to grant the late motion for a continuance. 2 Following the summary judgments, and despite the fact there had been no trial, plaintiff filed a motion for a new trial pursuant to Civ.R. 59, maintaining he had newly discovered evidence. This "new evidence," as set forth in his affidavit, consisted of certain material facts that he failed to mention at his deposition and had only recently recalled. The trial court found the new trial motion a nullity on authority of L.A. & D. v. Bd of Commrs. (1981), 67 Ohio St.2d 384, 387, which states, "[s]ince a summary judgment proceeding is not a trial, a motion for a new trial does not properly lie." - 4 - Plaintiff did not oppose defendants' motions for summary judgment. Civ. R. 56(E) provides in relevant part: *** When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Accordingly, 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. See Wing v. Anchor Media Ltd. of Texas (1991), 59 Ohio St.3d 108, paragraph three of the syllabus. Nevertheless, when the movant's evidentiary materials do not establish the absence of a genuine issue of material fact, summary judgment must be denied even if no opposing evidentiary matter is presented. Glick v. Dolin (1992), 80 Ohio App.3d 592, 595. In any negligence action, the plaintiff must demonstrate the existence of a duty, a breach of that duty and an injury resulting proximately therefrom. Mussivand v. David (1989), 45 Ohio St.3d 314, 318; Jeffers v. Olexo (1989), 43 Ohio St.3d 140. The existence of a duty in a negligence action is a question of law for the court to determine. Mussivand, supra. At the time of his fall, plaintiff owned a unit at the defendant condominium. There is some question as to his legal status in this action, for a person's status on land determines the - 5 - nature and extent of the legal duty the defendants owed to him. In similar cases, we have assumed that a plaintiff-owner in a condominium complex is a business invitee. See, e.g., Tarescavage v. Meridian Condominium, Inc. (May 12, 1994), Cuyahoga App. No. 65446, unreported at 5. For purposes of this appeal (as well as in the court below), defendants Royal Court Condominium Association, Continental Management and Evelyn Packard concede plaintiff's status as an invitee on common areas of the premises. Defendants owe a business invitee a duty to exercise ordinary care in maintaining a premises in a safe condition so that users are not unnecessarily and unreasonably exposed to unsafe conditions. See Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203. Defendants are not, however, insurers of plaintiff's safety. They have no duty to protect plaintiff from dangers which are known or are so obvious and apparent that plaintiff could reasonably be expected to discover them and protect himself against them. Sidle v. Humphrey (1968), 13 Ohio St.2d 45, paragraph one of the syllabus. The materials submitted in support of the motion for summary judgment show plaintiff parked his automobile in the parking garage of the condominium. Rather than use the doorway leading to the front entrance of the building, plaintiff chose to take a short- cut through the boiler room. The boiler room connected the garage to the main building and led directly to the hallway where plaintiff's unit was located. In addition to the boilers, the room - 6 - also contained some items placed in storage, including the pole lamp plaintiff caught his foot against. He admitted seeing the lamp there on previous occasions. Because plaintiff often used the boiler room as a shortcut, he knew that unless someone inadvertently left a light on, the boiler room would be so dark he could not see. He also knew the only light switch to the boiler room was on the wall opposite the entrance from the garage. Despite this knowledge, he proceeded in the dark. On the evening he fell, plaintiff testified the boiler room was so dark he had to put his hands in front of his face in order to protect himself from bumping into anything. He took several steps, caught his foot against something and fell. He rose to his feet, found the light switch and discovered he caught his foot against the cord of the pole lamp. As we stated earlier, the law imposes no duty on persons to warn of dangers that are open and obvious. "Darkness" is always a warning of danger, and for one's own protection it may not be disregarded. Jeswald v. Hutt (1968), 15 Ohio St.2d 224, paragraph three of the syllabus. In the present case, plaintiff chose to take a short-cut through the darkened boiler room. He admitted he would have seen the lamp had the lights been on. Under the circumstances, it appears plaintiff failed to proceed with due deference to the dangers attendant to moving in the dark. As a matter of law, defendants did not breach any duty to warn plaintiff - 7 - of dangers that were not readily appreciable to him. The trial court did not err by granting summary judgment. The assigned errors are overruled. Judgment affirmed. - 8 - It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, J. JAMES M. PORTER, J., CONCUR CHIEF JUSTICE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .