2015 Ohio 4054
Ohio Ct. App.2015Background
- Victoria Dunn tripped on the third of three plywood boards placed on wet, newly seeded ground while walking from Heineman’s Winery gift shop to its outdoor wine garden; she had seen the boards and noticed they were unsecured.
- The boards had been laid down before Dunn arrived; it had rained earlier and the ground was muddy; Dunn traversed the first two boards, then fell stepping onto the third.
- Dunn did not report the incident at the winery and later filed suit alleging negligence; the winery denied negligence and moved for summary judgment.
- The trial court granted summary judgment for the winery, applying the open-and-obvious doctrine and finding no attendant circumstances or active negligence that would negate the doctrine.
- Dunn appealed, raising four assignments of error challenging the application of the open-and-obvious doctrine, arguing the plywood was a moving/dynamic hazard, asserted active negligence, claimed the rising board was not obvious, and pointed to attendant circumstances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether open-and-obvious doctrine applies to the plywood because it was not a static condition | Dunn: the plywood "suddenly rose" and was a dynamic hazard, so open-and-obvious doesn't apply | Winery: boards were placed before her arrival and remained unchanged — a static condition | Court: boards were static; open-and-obvious doctrine applies |
| Whether the winery's conduct constituted "active negligence" removing the doctrine's bar | Dunn: placing unsecured plywood across the entrance was active negligence | Winery: placement occurred before Dunn arrived; no contemporaneous negligent act caused the injury | Court: no evidence of active negligence; claim is characterized as a static-condition premises defect |
| Whether the plywood’s condition was open and obvious to an ordinary person | Dunn: reasonable juror could find the sudden rising made it not open and obvious | Winery: boards were visible, unsecured, and free from obstruction; Dunn noticed them | Court: as a matter of law the hazard was open and obvious; no genuine issue of material fact |
| Whether attendant circumstances (crowd, narrow path, tall man ahead, tote bag, seeded grass) negate the doctrine | Dunn: these conditions diverted attention/heightened risk so attendant circumstances preclude summary judgment | Winery: Dunn testified she saw the boards and did not say attention was diverted by those conditions | Court: attendant circumstances did not distract Dunn or materially alter notice of the hazard; doctrine still applies |
Key Cases Cited
- Sidle v. Humphrey, 13 Ohio St.2d 45 (Ohio 1968) (establishes open-and-obvious doctrine for premises liability)
- Simmons v. Am. Pac. Enters., L.L.C., 164 Ohio App.3d 763 (Ohio Ct. App.) (distinguishes static conditions from active negligence; owner’s contemporaneous acts can create factual issues)
- Harless v. Willis Day Warehousing Co., Inc., 54 Ohio St.2d 64 (Ohio 1978) (summary judgment standard in Ohio)
- Frano v. Red Robin Int’l., Inc., 181 Ohio App.3d 13 (Ohio Ct. App.) (attendant circumstances can create a factual issue on obviousness)
- Stockhauser v. Archdiocese of Cincinnati, 97 Ohio App.3d 29 (Ohio Ct. App.) (attendant circumstances must collectively distract a pedestrian and enhance the defect’s danger)