2004 Ohio 4646 | Ohio Ct. App. | 2004
{¶ 2} On February 27, 2000, appellant entered the premises at 4255 S. Hamilton Road, Groveport, Ohio, which is owned by appellees for the purpose of returning a rental car to Enterprise Rent-A-Car (hereinafter "Enterprise") who is located inside appellees' building. Upon entering, she saw on the right a four or five foot opening where the windows for Enterprises' customers were located and the mechanics' work area on the left. She also saw a line of people going from the Enterprise windows, to the front entrance and around past a flight of stairs. The stairs were straight ahead from the front entrance door, approximately eight feet away.
{¶ 3} As a result, appellant turned to the left to head toward the end of the line. When she did, she fell over a curb located to the left of the entrance door. The curb was approximately four inches high and painted yellow on the vertical face with a yellow stripe extending over the top edge. Appellant suffered injuries as a result of her fall.
{¶ 4} On February 2, 2002, appellant filed a complaint against appellees and Enterprise.1 Appellees filed a motion for summary judgment on May 12, 2003, which the trial court granted on October 10, 2003. The trial court concluded appellees did not owe appellant a duty to warn of the alleged danger. The trial court filed its judgment entry on October 17, 2003.
{¶ 5} Appellant timely appeals and asserts the following assignment of error:
The trial court erred in granting the Appellee's motion for summary judgment against Appellant, as there remains a genuine issue of material fact.
{¶ 6} Appellate review of summary judgment motions is de novo. Helton v. Scioto Cty. Bd. of Commrs. (1997),
{¶ 7} Further, when a motion for summary judgment has been supported by proper evidence, the nonmoving party may not rest on the mere allegations of the pleading, but must set forth specific facts, by affidavit or otherwise, demonstrating that there is a genuine triable issue. Jackson v. Alert Fire Safety Equip.,Inc. (1991),
{¶ 8} In her sole assignment of error, appellant argues the trial court's granting of summary judgment was improper as a genuine issue of fact exists as to whether the cause of her fall, the curb, was open and obvious. Appellant maintains only a small portion of the curb would have been visible to anyone who had been inclined to look down and to the left before taking a step into what appeared to the normal person to be an area on the same level as the entrance. Further, appellant argues the curb was in close proximity to the entrance door. As such, appellant asserts a person would only have to move slightly to the left to come into contact with the edge of the curb as he or she entered the building. Additionally, appellant maintains there was no railing and no warning sign. Further, appellant argues she was not the first person to fall over the curb, instead, people frequently fell at the same location.
{¶ 9} In response, appellees maintain the curb was an open and obvious hazard and, as such, they did not owe her a duty of care. First, appellees contend there was no foreign substance on the floor in the area on which appellant fell. Second, appellees argue appellant fell on her way from the door to the end of the line and her path was clear. Appellees assert if appellant looked down, she would have noticed both the curb and the yellow stripe which was painted on it. Accordingly, appellees maintain appellant is unable to show a set of facts which would demonstrate that the yellow stripe was unreasonably dangerous.
{¶ 10} To prevail upon her claim of negligence, appellant is required to prove by a preponderance of the evidence appellees owed her a duty of care, they breached that duty, and the breach proximately caused her injuries. Strother v. Hutchinson (1981),
{¶ 11} The parties agree appellant was a business invitee of appellees. "[B]usiness invitees are those persons who come upon the premises of another, by invitation, express or implied, for some purpose which is beneficial to the owner." Baldauf v. KentState Univ. (1988),
{¶ 12} An owner or occupier of property owes no duty to warn invitees of open and obvious dangers on the property. Simmers,
supra, at 644, citing Sidle v. Humphrey (1968),
{¶ 13} In the current case, appellant testified she would have seen the yellow stripe on the curb, and the curb, had she looked down. Accordingly, the hazardous nature of the curb was readily apparent. It was neither hidden nor concealed from view and discoverable upon ordinary inspection. As such, appellant was responsible for taking appropriate measures to protect herself.
{¶ 14} This conclusion is not altered by a consideration of attendant circumstances. While "there is no precise definition of `attendant circumstances' * * * they generally include `any distraction that would come to the attention of a pedestrian in the same circumstances and reduced the degree of care an ordinary person would exercise at the time." McGuire v. Sears, Roebuck and Co. (1996),
{¶ 15} In this matter, appellant argues attendant circumstances must be considered, however, she fails to specify what specific attendant circumstances were present when she fell. Moreover, an examination of the facts reveals the line of customers from Enterprise's windows around to the stairs as the only potential attendant circumstance. We conclude the line, in and of itself, was insufficient to divert appellant's attention, significantly enhance the danger of the curb, and contribute to the fall. Accordingly, there are no attendant circumstances sufficient in this matter to avoid the application of the open-and-obvious doctrine. As such, appellant fails to prove appellee owed her a duty of care.
{¶ 16} Accordingly, appellant's sole assignment of error is overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
Bowman and Sadler, JJ., concur.
