2020 Ohio 3142
Ohio Ct. App.2020Background
- Plaintiff Charlene Kemme tripped on a raised threshold while entering The Show on 42 from a rear wooden deck on May 17, 2017; a black rug partially covered the right door where she entered.
- Seltzer Holdings' owner measured the rise at no greater than two inches; Kemme's expert measured it at 2.5 inches—disputed facts relevant to the Cash two-inch rule.
- Seltzer moved for summary judgment arguing the hazard was open and obvious; the trial court granted summary judgment for Seltzer on that basis.
- Kemme also alleged intentional spoliation: restaurant video footage was viewed by staff and later overwritten; she claimed loss of evidence about who placed the rug and how long it had been there.
- The appellate majority affirmed summary judgment, holding the threshold condition was open and obvious and that Kemme could not show prejudice from spoliation; Judge Ringland concurred in part and dissented in part, arguing the mat could have concealed the hazard and created a genuine factual dispute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the threshold rise was trivial/insubstantial (Cash two-inch rule) | Kemme: expert measured 2.5 inches, creating a factual dispute whether the defect is insubstantial | Seltzer: owner measured ≤2 inches; if ≤2 inches defect is insubstantial as a matter of law | Court did not decide on Cash threshold because it resolved case on open-and-obvious doctrine |
| Applicability of the open-and-obvious doctrine | Kemme: rug concealed the rise; a reasonable invitee exercising ordinary care would not necessarily discover the hazard | Seltzer: rise was observable from left door and as a normal exterior threshold; the rug did not obscure the hazard enough to avoid being open and obvious | Majority held the condition was open and obvious and barred recovery; concurrence/dissent would remand on this issue due to genuine dispute about concealment by the mat |
| Spoliation of evidence (intentional destruction) | Kemme: defendants viewed the surveillance and the footage was later overwritten, hindering proof who placed the rug/how long it was there | Seltzer: video system routinely re-records; no proof of willful destruction or that loss disrupted Kemme's case | Court held elements 1–2 met but plaintiff failed to prove willful destruction, disruption, or damages proximately caused by spoliation; claim failed |
Key Cases Cited
- Cash v. Cincinnati, 66 Ohio St.2d 319 (Ohio 1981) (two-inch-or-less height difference is insubstantial as a matter of law absent elevating circumstances)
- Armstrong v. Best Buy Co., 99 Ohio St.3d 79 (Ohio 2003) (open-and-obvious hazards relieve a landowner of duty and bar negligence claims)
- Smith v. Howard Johnson Co., Inc., 67 Ohio St.3d 28 (Ohio 1993) (elements of the tort of intentional spoliation of evidence)
- Elliott-Thomas v. Smith, 154 Ohio St.3d 11 (Ohio 2018) (restating spoliation elements)
- Brinkman v. Ross, 68 Ohio St.3d 82 (Ohio 1993) (rationale that an open and obvious hazard itself serves as a warning)
- Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203 (Ohio 1985) (business invitee duty to maintain premises in reasonably safe condition)