2022 Ohio 4354
Ohio Ct. App.2022Background
- On Sept. 6, 2018, Tina Butler parked in Bethesda North Hospital visitor lot and stepped in front of her car to cross a grassy berm; she tripped in a 2–3 inch depression in the asphalt she initially thought was an oil spot and suffered an avulsion ankle fracture.
- Butler and her cousin photographed the spot that night; additional daytime photos were later taken.
- Butler sued TriHealth for negligence, alleging the hospital failed to warn of the pavement defect.
- TriHealth moved for summary judgment, arguing the pavement depression was an open and obvious hazard and attaching Butler’s deposition excerpts and 20 color photographs produced by plaintiff’s counsel.
- The trial court granted summary judgment, finding darkness and the visible hole were open and obvious; it relied on Butler’s affidavit admission that she saw what she thought was an oil mark.
- On appeal, Butler contested both the trial court’s ruling and the authentication/admissibility of the photographs; the appellate court affirmed summary judgment and held the photos were properly authenticated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility/authentication of photographs used in summary-judgment motion | Butler challenged admissibility, arguing photos were not properly authenticated under Evid.R. 901 | TriHealth argued photos were produced by plaintiff’s counsel and tied to Butler’s deposition testimony; defense counsel’s affidavit authenticated them | Photographs were properly authenticated by defense counsel’s affidavit and Butler’s deposition linking her photos to the images; trial court did not abuse discretion in considering them |
| Whether TriHealth owed a duty to warn because the pavement defect was open and obvious (and whether attendant circumstances created a factual issue) | Butler argued darkness, the defect’s location directly in front of her car, and its color concealed it and amounted to attendant circumstances preventing discovery of the hazard | TriHealth argued the depression was observable in the photos, darkness is an ordinary condition that increases one’s duty of care (not an attendant circumstance), and plaintiff’s positioning was not the owner’s doing | The court held the depression was an open and obvious condition; darkness and the defect’s ordinary characteristics were not attendant circumstances sufficient to defeat the open-and-obvious doctrine, so TriHealth owed no duty and summary judgment was proper |
Key Cases Cited
- Armstrong v. Best Buy Co., Inc., 788 N.E.2d 1088 (Ohio 2003) (open-and-obvious hazards obviate duty to warn)
- Grafton v. Ohio Edison Co., 671 N.E.2d 241 (Ohio 1996) (summary judgment reviewed de novo)
- Lang v. Holly Hill Motel, Inc., 909 N.E.2d 120 (Ohio 2009) (elements of negligence)
- Jeswald v. Hutt, 239 N.E.2d 37 (Ohio 1968) (darkness is an obvious warning and may increase required care)
- McLaughlin v. Andy’s Coin Laundries, LLC, 112 N.E.3d 57 (Ohio 2018) (attendant circumstances can create fact issues but must be more than ordinary distractions)
- Snay v. Burr, 189 N.E.3d 758 (Ohio 2021) (no duty exists, no negligence liability)