2004 Ohio 6508 | Ohio Ct. App. | 2004
{¶ 2} First, Crim argues the trial court properly granted summary judgment to it since Briskey was a licensee on its property rather than an invitee. But Briskey was a guest of Crim's tenant and a landlord owes the same duties to a tenant's guest as the landlord owes to the tenant. In this case, Briskey was not in a common area when he was injured since the injury occurred when he walked down the front steps of a singlefamily residence. Thus, he, like the tenant, was an invitee and Crim owed him the same duty of ordinary care that it owed to the tenant.
{¶ 3} Second, Briskey argues the trial court erred when it granted summary judgment to Crim by finding the dangerous condition that caused his injury was an open and obvious condition. The trial court's analysis focused on Briskey's knowledge of the surrounding conditions. But the open and obvious doctrine focuses on the nature of the dangerous condition itself, not the nature of the plaintiff's conduct in encountering it. In this case, there is no evidence that the wet paint on the steps was open and obvious. Thus, the trial court erred when it granted summary judgment to Crim on this issue. The judgment of the trial court is reversed and this matter is remanded for further proceedings.
{¶ 5} Because of this injury, Briskey filed a complaint against Crim. He alleged that Crim's employees acted negligently by failing to warn him that the steps were freshly painted. Crim answered and, after discovery, moved for summary judgment for two reasons: 1) it did not violate its duty of care to Briskey since he was a licensee and 2) it had no duty to warn Briskey of the dangerous condition since it was an open and obvious condition. Briskey responded to this motion and Crim replied to Briskey's response.
{¶ 6} The trial court granted Crim's motion for summary judgment. The trial court disagreed with Crim's argument that Briskey was a licensee. But it agreed that the danger was an open and obvious danger. Thus, it concluded that Crim's employees did not have a duty to warn Briskey of the danger. It is from this judgment that Briskey timely appeals.
{¶ 8} "The trial court erred in granting Defendant's motion for summary judgment because genuine issues of material fact existed, and Defendant was not entitled to judgment as a matter of law."
{¶ 9} When reviewing a trial court's decision to grant summary judgment, an appellate court applies the same standard used by the trial court. Parenti v. Goodyear Tire Rubber Co.
(1990),
{¶ 10} In a motion for summary judgment, "the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." Dresherv. Burt (1996),
{¶ 12} In Ohio, courts use the common-law classifications of invitee, licensee, and trespasser in cases of premises liability to define the scope of the legal duty that the landowner owes the entrant. Gladon v. Greater Cleveland Regional Transit Auth.,
{¶ 13} The Ohio Supreme Court has held that "[a] landlord owes the same duties to persons lawfully upon the leased premises as the landlord owes to the tenant." Shump v. FirstContinental-Robinwood Assoc.,
{¶ 14} Citing Westbrook v. Elden Properties (Apr. 5, 2000), 9th Dist. No. 98CA007257, Crim argues that there is an exception to this general rule if the guest is in a common area. But although Westbrook and the cases it cites say that a guest who is in a common area is a licensee rather than an invitee, the evidence in this case clearly demonstrates that the injury did not occur in a common area. The home in question was a single-family, two bedroom home. The front steps from that home are not a "common area" because they are not common to any other rental property. A parking lot in an apartment complex may be a common area, see Sanders v. Bellevue Manor Apartments (Jan. 3, 1996), 9th Dist. No. 95CA006067, but the front steps to a single-family home clearly are not. Thus, the trial court properly concluded that Briskey was an invitee onto Crim's property.
{¶ 16} In Armstrong, the Ohio Supreme Court recently reaffirmed the validity of the open and obvious doctrine in Ohio. When applying this rule, courts "must focus on the fact that the doctrine relates to the threshold issue of duty. By focusing on the duty prong of negligence, the rule properly considers the nature of the dangerous condition itself, as opposed to the nature of the plaintiff's conduct in encountering it. The fact that a plaintiff was unreasonable in choosing to encounter the danger is not what relieves the property owner of liability. Rather, it is the fact that the condition itself is so obvious that it absolves the property owner from taking any further action to protect the plaintiff." Armstrong at ¶ 13.
{¶ 17} As the Sixth District has pointed out, "[t]he typical open and obvious cases concern known conditions that could have been avoided by individuals if they had taken proper precautionary measures, such as paying attention to where they were walking." Demock v. D.C. Entertainment Catering, Inc., 6th Dist. No. WD-03-087, 2004-Ohio-2778, ¶ 10; Cole v. McCarthyManagement, LLC, 6th Dist. No. L-03-1020, 2003-Ohio-5181, ¶ 11. "It is only where the plaintiff is able to demonstrate that the owner of premises * * * had superior knowledge of the particular danger, that liability attaches." Cunningham v. Thacker Serv.,Inc., 10th Dist. No. 03AP-455, 2003-Ohio-6065, ¶ 13.
{¶ 18} In this case, we cannot conclude that the danger in this case was open and obvious because of a lack of evidence. Crim attached three depositions, those of Briskey and two of the painters, and pictures of the steps to its motion for summary judgment. The pictures do not help determine whether the wet condition of the paint was open and obvious at the time of the accident. The pictures submitted were taken days after the accident, when the paint on the steps was no longer wet. These are not pictures of a permanent feature, like a guardrail, which caused an accident. The wet nature of paint is, by definition, a transient feature. After the paint dries, it is no longer dangerous. Significantly, neither Briskey nor the two painters testified whether anyone could have noticed that the paint was wet when standing at the top of the steps. Thus, we have no evidence on the central question raised in Crim's motion for summary judgment — whether wet paint on the steps was open and obvious.
{¶ 19} The only way we could conclude that there was an open and obvious danger in this case is if we took into account facts not in the record (how likely it is that someone will notice wet paint) and construe those facts against Briskey, the novmovant (it is obvious that someone will notice wet paint). This is something we will not do when reviewing a decision granting summary judgment. We cannot conclude that there was an open and obvious danger merely because the paint on the steps was wet when Briskey walked on them. There is no evidence in the record that that fact was open and obvious.
{¶ 20} We note that Briskey's knowledge of the entire situation may impact a comparative negligence analysis. But that issue deals with causation, not with the existence of a duty. Given the lack of evidence establishing that the wet paint on the steps posed an open and obvious danger, the trial court erred when it granted summary judgment to Crim on this issue.
{¶ 21} The trial court correctly concluded that Briskey was an invitee rather than a licensee. However, the trial court erred when it found that the wet paint posed an open and obvious danger. Accordingly, Briskey's sole assignment of error is meritorious. The judgment of the trial court is reversed and this cause is remanded for further proceedings.
Waite, P.J., concurs.
Donofrio, J., concurs.