2019 Ohio 3938
Ohio Ct. App.2019Background
- Plaintiff Margaret Milatz attended Oktoberfest in downtown Cincinnati and fell, injuring herself while stepping over a bright-yellow safety utility box used to cover power cables.
- The next day she photographed a safety box that appeared improperly assembled (top popped open and cables spilling out) and sued the City of Cincinnati, the Cincinnati USA Regional Chamber of Commerce, and Loud and Clear, Inc. (the contractor that assembled the boxes).
- At trial, defendants moved for summary judgment; the court found the box was an open-and-obvious hazard and granted summary judgment for the city and the Chamber; it also granted summary judgment for Loud and Clear.
- Milatz conceded she had seen the box immediately before stepping over it, but she later claimed the faulty assembly was an attendant circumstance that distracted her attention.
- Milatz admitted she did not remember feeling her foot catch or any specific event that caused her to fall; the record lacked evidence tying the box’s alleged improper assembly to her injury.
- Milatz also challenged the trial court’s decision to allow Loud and Clear to file an answer out of time (she had sought default); the court allowed the late filing on grounds of excusable neglect.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the safety box was open and obvious or whether attendant circumstances created a fact question | Milatz: faulty assembly of this box was an attendant circumstance (others were properly assembled), which distracted her and defeated open-and-obvious | Defendants: the box was large, high‑visibility, textured, and Milatz saw it immediately before stepping over it; no distraction existed | Court: no attendant circumstance shown; hazard was open and obvious and summary judgment proper |
| Whether plaintiff established causation linking alleged improper assembly to her fall | Milatz: the disassembled box caused her to trip | Defendants: plaintiff offered only speculation and no evidence she tripped because of the box’s assembly | Court: speculation insufficient; no evidence of actual causation; summary judgment proper |
| Whether the open-and-obvious doctrine shields an independent contractor from liability | Milatz: Loud and Clear should be liable for negligent assembly | Loud and Clear: while open-and-obvious doctrine does not absolve contractors, the condition’s obviousness bears on breach and foreseeability | Court: doctrine does not bar contractor as a matter of law, but absence of breach/causation supports summary judgment for Loud and Clear |
| Whether the trial court abused its discretion in allowing Loud and Clear to file an answer late | Milatz: court should have entered default judgment for failure to timely answer | Loud and Clear: missed deadline due to miscalculation/clerical error; motion for leave filed promptly; excusable neglect | Court: no abuse of discretion—clerical miscalculation was excusable neglect and leave to answer was proper |
Key Cases Cited
- Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79 (Ohio 2003) (open-and-obvious doctrine can negate duty to warn)
- Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642 (Ohio 1992) (open-and-obvious doctrine does not automatically absolve independent contractors)
- McLaughlin v. Andy’s Coin Laundries, LLC, 112 N.E.3d 57 (1st Dist. 2018) (attendant circumstances defined as distractions that divert attention)
- GTE Automatic Elec., Inc. v. ARC Indus., Inc., 47 Ohio St.2d 146 (Ohio 1976) (default relief analysis; flagrant disregard of judicial system may justify denial)
- Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18 (Ohio 1996) (denial of default where party did not show complete disregard for judicial system)
- Evans v. Chapman, 28 Ohio St.3d 132 (Ohio 1986) (clerical errors may constitute excusable neglect)
- Shepherd v. Cincinnati, 168 Ohio App.3d 444 (1st Dist. 2006) (attendant circumstances must, in combination, divert pedestrian’s attention)
- Rosenbrook v. Lucas County Bd. of Commrs., 33 N.E.3d 562 (Ohio 2015) (speculation insufficient to establish causation in trip-and-fall cases)