Swiger v. Kohl's Department Store, Inc.
947 N.E.2d 232
Ohio Ct. App.2010Background
- Swiger sued Kohl’s for injuries from a fall outside Kohl’s in Kettering, Ohio.
- She testified she stepped down at the curb, caught her right foot on a divot, and fell with purse and shopping bag.
- The fall occurred as she exited the store and looked at parking lot traffic.
- She later required ACL surgery due to the injury.
- The trial court granted summary judgment, finding no duty to protect from an open and obvious danger, noting a crumbling curb was visible to shoppers.
- On appeal, Swiger challenged the affidavit/testimony inconsistencies and the open-and-obviousness analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the postdeposition affidavit properly disregarded as conflicting evidence? | Swiger’s affidavit clarified the scene and magnitude. | The affidavit conflicted with deposition and created no genuine issue. | Partially sustained; some statements were inconsistently used to defeat summary judgment. |
| Is the curb divot an open and obvious danger as a matter of law? | The defect was not open and obvious; attendant circumstances could exist. | Open and obvious rule bars recovery. | Open and obvious analysis defeated; jury could find not open/obvious. |
| Did attendant circumstances preclude open-and-obvious doctrine? | Attendant circumstances could make the danger not obvious. | Open-and-obvious defense applies regardless of attendant circumstances. | Jury could consider attendant circumstances; holds for remand. |
Key Cases Cited
- Sidle v. Humphrey, 13 Ohio St.2d 45 (Ohio 1968) (open-and-obvious rule applies to premises liability)
- Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203 (Ohio 1985) (no duty to warn about open and obvious dangers)
- Cash v. Cincinnati, 66 Ohio St.2d 319 (Ohio 1981) (defect size/met risk in crosswalk case for open-and-obvious analysis)
- Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642 (Ohio 1992) (open-and-obvious standard in sidewalks/ premises cases)
- Grossnickle v. Germantown, 3 Ohio St.2d 96 (Ohio 1965) (reasonable care for pedestrian; not required to scan downward constantly)