2014 Ohio 4542
Ohio Ct. App.2014Background
- Gibson, a familiar customer, fell stepping into a pothole outside Dairy Mart in a parking lot after exiting her car.
- The pothole was approximately one to two inches deep and caused Gibson to injure her wrist, leading to surgeries and medical expenses.
- Gibson had previously visited the store about ten times; on the day of the incident she parked in an area with no nearby obstructions obscuring the ground view.
- Defendants moved for summary judgment, arguing the pothole was an open and obvious hazard and no duty existed.
- The trial court granted summary judgment, holding that a plaintiff’s activity at the moment of the fall could not be an attendant circumstance to defeat open-and-obvious status.
- The Court of Appeals reversed, holding that attendant circumstances may include the plaintiff’s individual activity and that a fact question remained.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the pothole was open and obvious as a matter of law | Gibson's view of the pothole was obstructed by her car door, creating an attendant circumstance. | Open and obvious condition; no attendant circumstances; owner has no duty to warn. | Question of fact; not decided as a matter of law |
| Whether attendant circumstances may include the invitee's activity (car door obstruction) to defeat open-and-obvious status | Invitee’s activity can create attendant circumstances that obscure a hazard. | Attendant circumstances are limited and generally not based on the invitee’s actions. | Gibson wins; material fact exists regarding open-and-obvious status |
Key Cases Cited
- Sidle v. Humphrey, 13 Ohio St.2d 45 (1968) (defined open-and-obvious doctrine; attendant circumstances concept)
- Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79 (2003) (duty focus; Restatement not controlling; open-and-obvious analysis)
- Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642 (1992) (open-and-obvious doctrine; attendant circumstances concept)
- Jacobsen v. Coon Restoration & Sealants, Inc., 2011-Ohio-3563 (5th Dist. Stark) (attendant circumstances can arise from foreseeable distractions)
- Collier v. Libations Lounge, LLC, 2012-Ohio-2390 (8th Dist. Cuyahoga) (attendant circumstances considered in open-and-obvious analysis)
- McConnell v. Margello, 2007-Ohio-4860 (10th Dist. Franklin) (attendant circumstances doctrine; foreseeability considerations)