WILLA HOWARD, ET AL., PLAINTIFFS-APPELLANTS, v. MEAT CITY, INC., ET AL., DEFENDANTS-APPELLEES.
CASE NO. 1-16-32
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
December 5, 2016
2016-Ohio-7989
PRESTON, J.
Appeal from Allen County Common Pleas Court Trial Court No. CV20150459. Judgment Affirmed.
Michael D. Portnoy for Appellants
Stephen F. Korhn for Appellees, Meat City, Inc. and Paul G. Hahn, Jr., Living Trust
Steven A. Keslar for Appellee, Fritchie Asphalt & Paving Company
{1} Plaintiffs-appellants, Willa (“Willa“) and Mose Howard (collectively, the “Howards“), appeal the June 3, 2016 judgment entry of the Allen County Court of Common Pleas granting summary judgment in favor of defendants-appellees, Meat City, Inc. (“Meat City“), Paul G. Hahn, Jr. Living Trust (“Trust“), and Fritchie Asphalt & Paving Company (“Fritchie“). For the reasons that follow, we affirm.
{2} This case stems from injuries Willa sustained when she stepped in a hole in the asphalt and fell in the parking lot of Meat City, a grocery and convenience store in Lima, Ohio. The Howards filed a complaint on July 31, 2015 against Meat City and Fritchie for negligence and loss of consortium.1 (Doc. No. 1). Fritchie filed its answer on August 18, 2015. (Doc. No. 4). Meat City filed its answer and a cross-claim against Fritchie on August 26, 2015. (Doc. No. 6). Fritchie filed its answer to Meat City‘s cross-claim on September 10, 2015. (Doc. No. 11). Fritchie filed a motion for summary judgment as to the Howards’ claims and Meat City‘s cross-claim. (Doc. No. 24).
{3} On February 29, 2016, the Howards filed an amended complaint,2 adding the Trust as a party and alleging that the Trust “is the private non business
{4} On March 15, 2016, Meat City filed a motion for summary judgment on the Howards’ claims. (Doc. No. 37). On March 25, 2016, the Trust filed a motion for summary judgment on the Howards’ claims. (Doc. No. 41). On May 3, 2016, the Howards filed a memorandum in opposition to Meat City‘s and Fritchie‘s motions for summary judgment. (Doc. No. 49). On May 9 and 12, 2016, Meat City and Fritchie, respectively, filed reply memorandums in support of their motions for summary judgment. (Doc. Nos. 54, 56).
{5} On June 3, 2016, the trial court filed the judgment entry that is the subject of this appeal, granting summary judgment in favor of the defendants and against the Howards. (Doc. No. 59). In its judgment entry, the trial court concluded that “there is no genuine issue of material fact that the pothole was open and obvious and there were no attendant circumstances.” (Id. at 8). The trial court dismissed the Howards’ amended complaint and Meat City‘s cross-claim against Fritchie. (Id. at 9).
{6} On July 1, 2016, the Howards filed their notice of appeal. (Doc. No. 61). They raise two assignments of error, which we will address together.
Summary judgment was in error because there are genuine issues of material fact regarding the defendants’ breaching their duties owed to appellant.
Assignment of Error No. II
Defendants are not entitled to judgment as a matter of law regarding the attendant circumstances doctrine and the open and obvious doctrine.
{7} In their first assignment of error, the Howards argue that a genuine issue of material fact exists concerning whether the hole in the parking lot was open and obvious and that the trial court “failed to address the duty of care owed to Mrs. Howard by Fritchie pursuant to the contract between Fritchie and Meat City for parking lot repairs.” (Appellant‘s Brief at 5). In their second assignment of error, the Howards argue that the trial court misapplied the attendant-circumstances doctrine in concluding that no attendant circumstance created a genuine issue of material fact as to whether the hole was open and obvious.
{8} We review a decision to grant summary judgment de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 390 (2000). ”De novo review is independent and without deference to the trial court‘s determination.” ISHA, Inc. v. Risser, 3d Dist. Allen No. 1-12-47, 2013-Ohio-2149, ¶ 25, citing Costner Consulting Co. v. U.S. Bancorp, 195 Ohio App.3d 477, 2011-Ohio-3822, ¶ 10 (10th Dist.). Summary judgment is proper where there is no genuine issue of material fact, the moving party
{9} “‘[I]n order to establish actionable negligence, one seeking recovery must show the existence of a duty, the breach of the duty, and injury resulting proximately therefrom.‘” Carnes v. Siferd, 3d Dist. Allen No. 1-10-88, 2011-Ohio-4467, ¶ 14, quoting Strother v. Hutchinson, 67 Ohio St.2d 282, 285 (1981). “At common law, the legal duty owed by a landowner to one who enters upon his land was contingent upon the status of the entrant: trespasser, licensee, or invitee.” Id., citing Shump v. First Continental-Robinwood Assoc., 71 Ohio St.3d 414, 417 (1994). The parties do not dispute the trial court‘s classification of Willa as a business invitee of Meat City.3
{10} “A shopkeeper ordinarily owes its business invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition and has the duty to warn its invitees of latent or hidden dangers.” Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, ¶ 5, citing Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203 (1985) and Jackson v. Kings Island, 58 Ohio St.2d 357 (1979).
{11} “In general, ‘[o]pen-and-obvious dangers are those not hidden, concealed from view, or undiscoverable upon ordinary inspection[.]‘” Shipman v. Papa John‘s, 3d Dist. Shelby No. 17-14-17, 2014-Ohio-5092, ¶ 22, quoting Thompson v. Ohio State Univ. Physicians, Inc., 10th Dist. Franklin No. 10AP-612, 2011-Ohio-2270, ¶ 12. “However, an individual ‘does not need to observe the dangerous condition for it to be an “open-and-obvious” condition under the law; rather, the determinative issue is whether the condition is observable.‘” Id., quoting Thompson at ¶ 12. “Thus, ‘[e]ven in cases where the plaintiff did not actually notice the condition until after he or she fell, [courts have] found no duty where the plaintiff could have seen the condition if he or she had looked.‘” Id., quoting Thompson at ¶ 12.
{12} “In most situations, whether a danger is open and obvious presents a question of law.” Carnes, 2011-Ohio-4467, at ¶ 16, citing Lang v. Holly Hill Motel,
{13} “Attendant circumstances may exist which distract an individual from exercising the degree of care an ordinary person would have exercised to avoid the danger.” Id. at ¶ 17, citing Aycock v. Sandy Valley Church of God, 5th Dist. Tuscarawas No. 2006 AP 09 0054, 2008-Ohio-105, ¶ 26, citing McGuire v. Sears, Roebuck & Co., 118 Ohio App.3d 494, 499 (1st Dist.1996). “An attendant circumstance is usually an active event as opposed to a static condition.” Id. This court recognized that an “attendant circumstance” is defined as:
“a factor that contributes to the fall and is beyond the control of the injured party. * * * The phrase refers to all facts relating to the event, such as time, place, surroundings or background and the conditions normally existing that would unreasonably increase the normal risk of a harmful result of the event. * * * However, ‘[b]oth circumstances
contributing to and those reducing the risk of the defect must be considered.‘”
Williams v. Lowe‘s of Bellefontaine, 3d Dist. Logan No. 8-06-25, 2007-Ohio-2045, ¶ 18, quoting Benton v. Cracker Barrel Old Country Store, Inc., 10th Dist. Franklin No. 02AP1211, 2003-Ohio-2890, ¶ 17, quoting Sack v. Skyline Chili, Inc., 12th Dist. Warren No. CA2002-09-101, 2003-Ohio-2226, ¶ 20.
{14} “To serve as an exception to the open and obvious doctrine, an attendant circumstance must be ‘so abnormal that it unreasonably increased the normal risk of a harmful result or reduced the degree of care an ordinary person would exercise.‘” Shipman, 2014-Ohio-5092, at ¶ 29, quoting Mayle v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 09AP-541, 2010-Ohio-2774, ¶ 20. “‘[A]ttendant circumstances are facts that significantly enhance the danger of the hazard.‘” Id., quoting Haller v. Meijer, Inc., 10th Dist. Franklin No. 11AP-290, 2012-Ohio-670, ¶ 10. “Furthermore, the attendant circumstance must be an ‘“unusual circumstance of the property owner‘s making.“‘” Id., quoting Haller at ¶ 10, quoting McConnell v. Margello, 10th Dist. Franklin No. 06AP-1235, 2007-Ohio-4860, ¶ 17. “‘Attendant circumstances do not, though, include regularly encountered, ordinary, or common circumstances.‘” Id., quoting Colville v. Meijer Stores Ltd. Partnership, 2d Dist. Miami No. 2011-CA-011, 2012-Ohio-2413, ¶ 30.
{16} On the day Willa fell in the Meat City parking lot—May 26, 2015—the weather conditions were clear and sunny. (Id. at 14-16). She could see the parking lot in front of her as she pulled up to the parking space in the southern portion of the east parking lot—about three spaces north from the sidewalk running
{17} As she was about to open the driver door of her vehicle, but before she opened it, she tripped in a “hole” in the parking lot that “was partially under the car and then partially outside of not under the car.” (Id. at 43-44, 46-47, 51, 118). Willa‘s right “foot got caught in the hole,” and she fell. (Id. at 48-49). There was nothing unusual or out of the ordinary going on in the parking lot when she fell, nor were there any “artificial type of distractions” drawing her attention away from her vehicle. (Id. at 42, 59). She did not see the hole when she exited her vehicle to go into the store or when she walked back to her vehicle. (Id. at 44). The hole “apparently was under [her] door when [she] got out” of her vehicle, and “[t]hat‘s
{18} When asked if she could describe the hole, Willa testified in her deposition, “I wasn‘t looking to see what the hole looked like that I fell in; but, you know, I saw the hole.” (Id. at 49-50). Willa testified that the hole was about six inches wide and “[not] that deep either“—“[m]aybe 3 inches,” although she was not sure. (Id. at 50-56). During her deposition, Willa drew the size of the hole on a piece of paper, marked as Defendant‘s Exhibit B, and the drawing reveals that the hole was slightly less long that it was wide. (Id. at 50-56, Defendant‘s Ex. B). Counsel for Meat City and the Trust asked Willa whether she could have seen the hole had she been looking:
| [Counsel]: | Is it fair to say that if you had been looking in the direction of where the hole was that you could have seen that part of the hole that wasn‘t under the car? |
| [Willa]: | Well, yeah, I imagine if I had have been looking; but being that I didn‘t see it when I went in there, I mean, you know, I wasn‘t expecting, you know, because I didn‘t fall going in so I wasn‘t expecting to fall coming out. * * * I didn‘t see a hole when I was going in, so I wasn‘t expecting it to be there when I came out. |
| [Counsel]: | You‘ve already told me that you were aware from, you know, in the six months before the day that you fell, you were aware of some other holes, some of which were more than 2 to 3 inches deep in the east parking lot. |
| [Willa]: | Yeah. As a matter of fact, everyone knew that Meat City‘s parking lot was full of holes. I mean, you know, I‘ve heard people talk about that. |
| [Counsel]: | In the six months before, which we‘ve talked about that time frame, about how many of these holes do you think there were in the east parking lot? |
| [Willa]: | I don‘t know. I don‘t know. |
| [Counsel]: | But there were many? |
| [Willa]: | I can‘t say that. |
| [Counsel]: | Okay. |
| [Willa]: | I mean, you know, but I know coming up to the time of my fall, I knew that there was some pretty bad potholes out there. It‘s hard for me to say how many. |
(Id. at 57-58). Counsel for Fritchie also asked Willa whether she could have seen the hole had she looked at the ground, and Willa responded, “If I had looked down on the ground, probably.” (Id. at 123). After Willa fell, she got in her vehicle and
{19} Based on Willa‘s testimony, there is no genuine issue of material fact that the hole that caused her to fall was an open-and-obvious danger—that is, the hole was observable and was not hidden, concealed from view, or undiscoverable. See Shipman, 2014-Ohio-5092, at ¶ 22. Willa testified in her deposition that she saw the hole after she fell. (Id. at 49-50). See Shipman at ¶ 24 (“[P]erhaps most conclusively, Shipman herself testified that after she fell, she looked at the ground and could clearly observe the cracks in the pavement.“). What is more, by Willa‘s own admission in response to questions from the defendants’ counsel during her deposition, she could have seen the hole had she looked. (Willa Depo. at 57-58, 123). See Shipman at ¶ 22. In fact, according to Willa, “everyone knew that Meat City‘s parking lot was full of holes.” (Willa Depo. at 57). “The fact that [Willa] was not looking at the pavement does not alter the condition from being open and obvious.” Shipman at ¶ 25. See also Williams, 2007-Ohio-2045, at ¶ 16 (“[D]ue to the open and obvious nature of the hazard, [the plaintiff] was able to avoid the hazard to protect herself, even if she did not do so.” (Emphasis sic.)). For these reasons, there is no genuine issue of material fact that the hole was an open and obvious condition.
{21} First, an attendant circumstance must be of the property owner‘s making and beyond the control of the injured party. See Shipman at ¶ 29. Here, the circumstance—Willa‘s vehicle in the parking lot—was created by Willa, not the defendants. Indeed, it was Willa—not the defendants—who had control of her vehicle when she entered the Meat City parking lot. Second, even setting aside that the circumstance was within Willa‘s control, to be an attendant circumstance, the circumstance must be unusual. Id. There is nothing unusual about vehicles entering and parking on a parking lot of a grocery and convenience store. For these reasons, as a matter of law, no attendant circumstance bars the application of the open-and-obvious doctrine.
{22} Finally, we address the Howards’ argument that Fritchie owed a duty of care to Willa “pursuant to the contract between Fritchie and Meat City for parking
{23} We conclude that Fritchie owed no duty of care to Willa. “Under the law of negligence, a defendant‘s duty to plaintiff depends upon the relationship between the parties and the foreseeability of injury to someone in the plaintiff‘s
{24} Even assuming Fritchie owed Willa a duty of care, to the extent the Howards argue that Fritchie cannot benefit from application of the open-and-obvious doctrine, we reject that argument. Generally, “an independent contractor who creates a dangerous condition on real property is not relieved of liability under the doctrine which exonerates an owner or occupier of land from the duty to warn those entering the property concerning open and obvious dangers on the property.” (Emphasis added.) Simmers, 64 Ohio St.3d at 645. However, when there is no
{25} We hold that the trial court did not err in granting summary judgment in favor of the defendants and against the Howards. For the reasons discussed above, the trial court properly granted summary judgment as to the Howards’ negligence claim against the defendants. Because summary judgment was proper as to the negligence claim, summary judgment was also proper as to the derivative
{26} Having found no error prejudicial to the appellants herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J. and WILLAMOWSKI, J., concur.
/jlr