2021 Ohio 2882
Ohio Ct. App.2021Background
- On Jan. 25, 2017, Todd Fabian was visiting Ronald Newell at a Youngstown residence owned by Timothy May and fell while descending a wooden ramp, striking a metal post and suffering serious injury.
- The ramp led from a carport to a raised deck; the lower portion was covered, the upper portion exposed; the entrance also could be reached by three steps.
- Newell lived at the property, knew the ramp could be slippery when wet and had slipped on it before; he intended to warn Fabian but testified he observed dew on the ramp only after the fall.
- Fabian said the ramp appeared dry before his descent and attributed the fall to the ramp’s design and construction (steep slope, no handrail, pressure-treated lumber); architect Richard Zimmerman submitted an affidavit asserting code violations and that moisture on pressure-treated lumber may be difficult to detect.
- The trial court granted summary judgment for May and Newell, finding the ramp and its slipperiness were open and obvious; the Fabians appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Newell owed a duty to warn Fabian of the ramp hazard | Newell had superior knowledge that the ramp became slippery when wet and intended to warn Fabian | No duty: hazard was open-and-obvious; knowledge of moisture imputed to invitee | No duty to warn; summary judgment for defendants affirmed |
| Whether morning dew rendered the hazard latent (not observable) and precluded open-and-obvious defense | Dew/condensation on pressure-treated lumber can be difficult or impossible to discern (expert), creating a genuine issue of fact | Dew is a natural form of moisture; water is inherently slippery and the condition was observable or imputed to Fabian | Dew did not defeat open-and-obvious; expert affidavit insufficient to create genuine issue; summary judgment affirmed |
Key Cases Cited
- Sidle v. Humphrey, 13 Ohio St.2d 45 (1968) (establishes the open-and-obvious doctrine for occupier liability)
- Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642 (1992) (open-and-obvious hazard serves as its own warning)
- Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79 (2003) (when applicable, open-and-obvious doctrine can be a complete bar to negligence claims)
- Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120 (2009) (administrative/code violations do not automatically negate open-and-obvious defense)
- Englehardt v. Philipps, 136 Ohio St. 73 (1939) (natural outdoor moisture like rain or dew generally does not create occupier liability)
- LaCourse v. Fleitz, 28 Ohio St.3d 209 (1986) (superior knowledge of a particular danger can create liability where the invitee cannot reasonably appreciate the risk)