2014 Ohio 5092
Ohio Ct. App.2014Background
- Plaintiff Sandra Shipman tripped on raised/uneven concrete in the parking lot of a Papa John’s in Sidney, Ohio, while returning to her car after picking up a pizza; she suffered serious injuries (shattered hip, broken femur, torn knee tissue, fractured ankle).
- Property owner S&D Limited leased the premises to tenant PJ Ohio LLC (Papa John’s); lease assigned parking-lot maintenance responsibility to Papa John’s per owner’s testimony.
- Depositions: multiple witnesses (store employee, insurance adjuster, prior injured pedestrian) described the cracks/raised concrete as obvious; the insurance adjuster measured a deviation of about 1.5 inches; one prior incident from 2006 involved a trip over raised concrete.
- Shipman testified it was dusk/dimly lit, she was looking toward her car carrying pizza and keys (not looking down), and that she could clearly see the raised concrete after falling.
- Defendants moved for summary judgment arguing the hazard was open-and-obvious (defeating duty) and deviations were minor (<2 inches); S&D alternatively sought contribution from Papa John’s under the lease.
- Trial court granted summary judgment for both defendants, finding the pavement defect open and obvious and that dusk/dim lighting did not constitute an "attendant circumstance" to overcome the doctrine; S&D’s cross-claim was rendered moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the pavement defect was "open and obvious" | Shipman: defect was hard to see (same color concrete), dim lighting obscured the defect | Defendants: cracks and raised concrete were readily observable; Shipman could have seen them if she looked | Court: Defect was open and obvious; Shipman noticed it after falling and witnesses called it "obvious" |
| Whether "dusk"/dim lighting were attendant circumstances defeating open-and-obvious rule | Shipman: dusk/dim lighting increased danger and made defect hard to see | Defendants: darkness/dim lighting are common conditions and do not create unusual attendant circumstances | Court: Dusk/dim lighting are not attendant circumstances; darkness is a naturally occurring condition and does not excuse failure to observe hazard |
| Whether owner's duty to illuminate parking lot existed | Shipman: inadequate lighting implied a duty or heightened risk | Defendants: no duty to provide or maintain lighting in parking areas | Court: No duty to provide lighting; failure to illuminate is not an attendant circumstance |
| Whether any genuine issue of material fact precluded summary judgment | Shipman: testimony about larger deviations and dim light raised factual disputes | Defendants: testimony uniformly described defects as observable; no evidence rebutting open-and-obvious condition | Court: No genuine issue of material fact; summary judgment affirmed |
Key Cases Cited
- Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203 (Ohio 1985) (business invitee duty of ordinary care)
- Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642 (Ohio 1992) (open-and-obvious doctrine rationale)
- Mitseff v. Wheeler, 38 Ohio St.3d 112 (Ohio 1988) (summary-judgment procedural burdens)
- Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (moving party’s burden to show absence of genuine issue)
- Jeswald v. Hutt, 15 Ohio St.2d 224 (Ohio 1968) (darkness as a warning of danger)