{¶ 2} Appellant's claim arises out of a slip-and-fall incident at the Holiday Inn located at 175 Hutchinson Avenue in Columbus, Ohio. Shortly before 8:00 a.m., on the morning of May 18, 2001, appellant arrived at the Holiday Inn, where he spent one and a half hours manning a vendor booth for his employer, New England Financial Services, at the Ohio Podiatric Medical Association convention. The New England Financial Services booth sat on a raised platform in a large open atrium area, which also contained restaurants and the hotel front desk. Appellant described the weather on May 18, 2001, as humid, drizzly, and raining.
{¶ 3} At 9:30 a.m., at the end of his scheduled shift, appellant attempted to leave the Holiday Inn. Appellant testified that, "because it was wet, rainy, my thought processes were let me exit further down in the building to go out closer to my vehicle instead of exiting through the front and having to walk outside." (Caravella 2005 Depo. at 17.) Thus, rather than exit through the front door where he had entered, appellant went in search of an alternate exit. Appellant walked down a carpeted corridor and through a glass door into a ceramic-tiled breezeway that led to an exterior glass door. As he walked through the breezeway toward the exterior door, appellant slipped on wet tile and fell, sustaining injuries. There was no protective mat or warning near the side exit where appellant fell.
{¶ 4} On April 3, 2002, appellant filed his complaint in the Franklin County Court of Common Pleas, alleging negligence against appellees, as owners and/or operators of the hotel premises. Appellant dismissed and re-filed his complaint on March 16, 2004. Appellees filed an answer to appellant's re-filed complaint on April 6, 2004, in which they asserted, among other defenses, that they breached no duty to appellant and that the condition about which appellant complains was open and obvious.
{¶ 5} On January 18, 2005, appellees filed a motion for summary judgment, supported by appellant's answers to interrogatories, an affidavit from Holiday Inn employee Janet Lee, transcripts of appellant's two depositions, and a deposition transcript of Debbie Bratka, an employee of the Ohio Podiatric Medical Association. Appellant filed a memorandum in opposition to appellees' motion for summary judgment on February 4, 2005, and attached excerpts from deposition transcripts of Brian Peiffer and Dr. Adrian King, and a Report of Accident, purportedly completed by Janet Lee. On February 14, 2005, appellees filed a reply memorandum in support of their motion for summary judgment.
{¶ 6} On April 19, 2005, the trial court issued a decision granting appellees' motion for summary judgment, finding that the accumulated moisture upon which appellant slipped and fell constituted an open and obvious hazard, which eliminated any duty for appellees to warn appellant of the wet floor. The trial court entered final judgment in appellees' favor on May 5, 2005, and this appeal ensued.
{¶ 7} In his single assignment of error, appellant asserts:
THE TRIAL COURT ERRED, AS A MATTER OF LAW, IN GRANTING DEFENDANTS-APPELLEES' MOTION FOR SUMMARY JUDGMENT WHERE EVIDENCE EXISTS WHICH RAISES GENUINE ISSUES OF MATERIAL FACT NOT ONLY TO WHETHER THE CONDITION UPON WHICH PLAINTIFF-APPELLANT FELL WAS OPEN AND OBVIOUS, BUT ALSO AS TO WHETHER DEFENDANTS-APPELLEES HAD PROVIDED SUFFICIENT NOTICE TO APPELLANT OF THE EXISTENCE OF THE HAZARD.
Appellant appeals the trial court's entry of summary judgment and argues that genuine issues of material fact remain as to whether appellees breached their duty of ordinary care by failing to warn him of the accumulated moisture and as to whether the wet tile floor was an open and obvious hazard.
{¶ 8} Appellate review of summary judgment is de novo. Koosv. Cent. Ohio Cellular, Inc. (1994),
{¶ 9} Pursuant to Civ.R. 56(C), summary judgment shall be rendered if "the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Accordingly, summary judgment is appropriate only where: (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the non-moving party, reasonable minds can come to but one conclusion, that conclusion being adverse to the non-moving party. Harless v. Willis Day Warehousing Co. (1978),
{¶ 10} "[A] party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims." Dresher v. Burt
(1996),
{¶ 11} Before addressing the propriety of summary judgment, we must determine what evidence was properly before the trial court pursuant to Civ.R. 56(C). Appellees objected to the evidence attached to appellant's memorandum contra. Appellant attached excerpts of Brian Peiffer and Dr. King's depositions to his memorandum contra, but, because he did not file such depositions, that evidence was not properly before the court. SeeStreets v. Chesrown Ent., Inc., Franklin App. No. 03AP-577,
{¶ 12} To establish a cause of action for negligence, a plaintiff must show the existence of a duty, breach of that duty, and an injury proximately caused by the breach. Texler v. D.O.Summers Cleaners Shirt Laundry Co. (1998),
{¶ 13} An owner or occupier of a premises owes business invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition so that invitees are not unnecessarily and unreasonably exposed to danger. Paschal v. Rite AidPharmacy, Inc. (1985),
{¶ 14} Open and obvious hazards are those hazards that are neither hidden nor concealed from view and are discoverable by ordinary inspection. Parsons v. Lawson Co. (1989),
{¶ 15} Here, appellant argues that the trial court improperly granted summary judgment because genuine issues of material fact remained as to whether the water upon which he slipped and fell was an open and obvious hazard. Ohio appellate districts differ as to whether the existence and obviousness of a hazard is a determination for the court or for the jury. See Nageotte v.Cafaro Co.,
{¶ 16} This court has reached arguably differing conclusions about whether the open and obvious nature of a condition is a question of law for the court or a question of fact for the jury. Recently, we stated that, although it requires a review of the facts of the particular case, the determination of the existence and obviousness of a danger is a question of law. Terakedis v.The Lin Family Ltd. Partnership, Franklin App. No. 04AP-1172,
* * * Had the water in this case been only a few steps inside the door of the building, we would agree with the trial court that the water, as a matter of law, was an open and obvious hazard; reasonable minds could not differ about whether someone entering the building should be charged with the knowledge that the floor might be wet.
Id. at ¶ 18.
{¶ 17} Here, whether or not the existence and obviousness of a hazard should be submitted to the jury when reasonable minds could differ, we find that the trial court properly granted summary judgment in favor of appellees. Viewing the evidence before the trial court on summary judgment in the light most favorable to appellant, reasonable minds could only conclude that the water on which appellant fell was so obvious and apparent that an invitee might be reasonably expected to discover it and protect himself from it. In his responses to interrogatories submitted by appellees, appellant described the manner in which his slip and fall occurred. Appellant described the area in which he fell as "noticeably wet" and stated that, "[a]s my right foot came into contact with the standing water it slipped forward, propelling me backward." (Emphasis added.) Thus, appellant admitted there was "standing water" in the breezeway and that the accumulated moisture was noticeable. Based on appellant's interrogatory responses, reasonable minds could only conclude that the hazard complained of was open and obvious.
{¶ 18} In his subsequent deposition testimony, taken two and a half months after appellant responded to appellees' interrogatories, appellant contradicted his interrogatory responses when he testified that the water on the tile floor "was not open and obvious" and that "[t]here were no puddles of water." (Caravella 2005 Depo. at 29.) Appellant's testimony that there were no puddles of water on the tile floor is a direct contradiction of his prior statement that there was standing water on the tile floor. In his deposition, appellant offers no explanation for his contradictory statements. It is well-settled that a party may not contradict his or her prior sworn testimony in an attempt to create a genuine issue of material fact to avoid summary judgment. See Watkins v. Universal Chem. Coatings,Inc. (Nov. 19, 1992), Franklin App. No. 92AP-893, citing Reidv. Sears, Roebuck and Co. (C.A.6, 1986),
{¶ 19} This court has not limited the principle precluding a party from creating an issue of fact with its own contradictory statements to affidavits, which contradict prior deposition testimony. In Jones v. Hoisington (Feb. 2, 1988), Franklin App. No. 87AP-570, we held that "where an affidavit raises an affirmative defense which is totally inconsistent with a civil defendant's answer, such affidavit must be rejected by the trial court as competent evidence." We reasoned that, "[w]here * * * the affidavit squarely conflicts with the affiant's prior unambiguous statement or admission, it seems unjust to consider such evidence absent explanation for the discrepancy." See, also,Beneficial Mtge. Co. of Ohio v. Leach, Franklin App. No. 01AP-737,
{¶ 20} In addition to the fact that appellant admitted the existence of standing water and that the tile floor was noticeably wet, appellant was aware that it was wet and rainy outside, and he presents no evidence that attendant circumstances prevented him from viewing the water on the tile floor. As the Supreme Court of Ohio has noted, "[e]verybody knows that the hallways between the outside doors of such buildings and the elevators or business counters inside the building during a continued rainstorm are tracked all over by the wet feet of people coming from the wet sidewalks, and are thereby rendered more slippery than they otherwise would be." S.S. Kresge Co. v.Fader (1927),
{¶ 21} Appellant argues that the trial court's conclusion that the water upon which he fell was open and obvious was inappropriate because he had little or no time to see and appreciate the water on the floor prior to his fall. The Second Appellate District has considered the relevance of a plaintiff's prior opportunity to observe the allegedly hazardous condition in a slip-and-fall action. In Kidder, the Second District found that reasonable minds could disagree about whether a wet floor was open and obvious where the plaintiff encountered water and slipped immediately after turning a corner at the end of a grocery aisle and, thus, had little advance opportunity to observe the hazard. Similarly, in Henry, the Second District recognized that the existence of a hazard "in a location where customers could be expected to turn or change direction, thereby limiting their opportunity to see the [hazard] and avoid it" is relevant to whether the hazard was open and obvious. Henry at ¶ 14. Unlike the scenarios in Kidder and Henry, however, the evidence here demonstrates that the door from the interior hallway into the breezeway was glass and that, once he passed through the interior glass door, appellant proceeded to midway through the breezeway before he slipped. The record contains no evidence that the water on the breezeway floor was concealed from appellant's view in any way or that other circumstances limited his opportunity to observe the water on the tile floor and avoid it prior to his fall.
{¶ 22} Appellant also argues that reasonable minds may disagree as to whether the wet tile floor was open and obvious because water is transparent, making its appearance difficult to detect. In the context of determining whether water on the floor of a grocery store was open and obvious, this court has recognized that, being transparent, water may not be easily detected by unsuspecting shoppers. Nienhaus v. The Kroger Co. (June 14, 2001), Franklin App. No. 00AP-1083. However, the mere fact that water is transparent does not require the conclusion that genuine issues of material fact necessarily exist as to the obviousness of the hazard presented by the water. In Francill v.The Andersons, Inc. (Feb. 15, 2001), Franklin App. No. 00AP-835, the plaintiff slipped and fell on water between the front doors and the cash registers of The Andersons General Store. The plaintiff claimed that the water was clear and that she did not see it on the floor. Nevertheless, the plaintiff admitted that, had she looked down, she probably could have seen the water. This court held that the plaintiff's admission demonstrated that the water was open, obvious, and discoverable by ordinary inspection. Similarly, here, appellant's admission that the tile floor was noticeably wet with standing water belies his contention that the water was not observable due to its transparency and demonstrates that the water upon which he fell was open, obvious, and discoverable by ordinary inspection.
{¶ 23} Viewing the evidence in the light most favorable to appellant, reasonable minds could only conclude that the wet tile floor upon which appellant slipped and fell was open and obvious. Because the open and obvious nature of the hazard obviated appellees' duty to warn appellant of the wet floor, it acts as a complete bar to appellant's negligence action. Therefore, the trial court properly granted appellees' motion for summary judgment.
{¶ 24} Although appellant also argues that appellees failed to provide sufficient notice of the wet tile floor, the issue is moot because appellees owed appellant no duty to warn him of an open and obvious hazard. However, even if appellees owed appellant a duty of ordinary care with respect to the wet tile floor, summary judgment would nevertheless have been warranted. This court has held:
* * * In a slip and fall case, to establish that the owner or occupier failed to exercise ordinary care, the invitee must establish that: (1) the owner of the premises or his agent was responsible for the hazard of which the invitee has complained; (2) at least one of such persons had actual knowledge of the hazard and neglected to give adequate notice of its existence or to remove it promptly; or (3) the hazard existed for a sufficient length of time to justify the inference that the failure to warn against it or remove it was attributable to a lack of ordinary care. * * *
Price v. United Dairy Farmers, Inc., Franklin App. No. 04AP-83,
{¶ 25} Given the absence of evidence that appellees were responsible for creating the wet floor condition or had actual knowledge thereof, appellant argues that appellees had constructive knowledge of the hazardous condition based on the presence of wet floor signs at the main entrance to the Holiday Inn. Appellant contends that, because appellees had knowledge of a wet floor condition at the front door, they should have known that floors were likely wet at other entrances as well. Appellant relies on the evidentiary materials attached to his memorandum in opposition to summary judgment in support of his assertion that appellees had constructive knowledge of the wet tile floor, but we have held that such evidence was not properly before the trial court and will not be considered on appeal. However, even if the record contained evidence from which a genuine issue of material fact could be gleaned as to appellees' constructive knowledge of the wet tile floor, the record contains no evidence that the wet floor existed for a sufficient amount of time to justify the inference that appellees' failure to remove it or warn of it was attributable to want of ordinary care.
* * * If * * * a plaintiff cannot establish that the owner or its agents created the hazard or possessed actual knowledge of the hazard, evidence showing the length of time during which the hazard existed is necessary to support an inference that the owner had constructive knowledge of the hazard such that the failure to remove or warn of the hazard was a breach of ordinary care. * * *
Id. at ¶ 7, citing Presley v. Norwood (1973),
{¶ 26} For the foregoing reasons, we overrule appellant's assignment of error and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
Klatt and Sadler, JJ., concur.
Notes
"Because I disagree with the majority's conclusion that determining whether a hazard is open and obvious is a question for the jury rather than the court, I respectfully dissent. Although the application of the open and obvious doctrine requires consideration of the facts, when those facts are undisputed, the applicability of the doctrine is a question of law. * * * This is because the open and obvious doctrine, when applicable, eliminates the landowner's duty to a business invitee."