Rice v. KrogerRice v. Kroger
Sarah A. McHugh, for appellee.
PIETRYKOWSKI, J.
{¶ 1} Appellant, Mia Rice, filed this accelerated appeal from the July 30, 2019 judgment of the Lucas County Court of Common Pleas granting summary judgment in favor of appellee, Kroger - K016 Great Lakes KMA (hereinafter “Kroger“). For the reasons which follow, we reverse.
{¶ 3} Appellant appeals and asserts the following single assignment of error:
THE TRIAL COURT ERRED BY GRANTING KROGER‘S MOTION FOR SUMMARY JUDGMENT
{¶ 4} In her sole assignment of error, appellant argues the trial court erred in grаnting summary judgment to Kroger. Kroger asserted in its summary judgment motion that appellant could not establish that Kroger owed a duty to protect appellant because the danger in this case was open and obvious. The trial court agreed finding a pallet positionеd next to a produce bin and protruding into the aisle was objectively observable had the plaintiff been looking where she was walking and not holding a sales flyer directly in front of her while conversing with her boyfriend. Because the court found the pallet was an open and obvious danger, it found Kroger was entitled to summary judgment as a matter of law.
{¶ 5} We review the ruling on a motion for summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d. 241 (1996). The purpose behind summary judgment is to determine, by analyzing the evidence, whether a trial is needed to resolve the case. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978), citing
{¶ 6} One prima facie element of a claim of negligence is that the defendant owed a duty to the plaintiff. Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d 120, ¶ 10, citing Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, 857 N.E.2d 1195, ¶ 21. (Additional citation omitted.) A landowner/occupier has no duty to protect a businеss invitee from static dangers which are open and obvious because the fact that the danger is open and obvious serves as a warning to the invitee and absolves the landowner/occupier of any duty to protect the plaintiff. Lang at ¶ 11; Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, syllabus. “A hazard is considered to be open and obvious when it is in plain view and readily discoverable upon ordinary inspection.” Miller v. First Internatl. Fid. & Trust Bldg., Ltd., 6th Dist. Lucas No. L-08-1187, 2009-Ohio-6677, ¶ 68. When the danger existed prior to the time the plaintiff entered the area, it constitutes a static condition. Lowe v. Local Union No. 14 U.A.W., 6th Dist. Lucas No. L-19-1042, 2020-Ohio-703, ¶ 35.
{¶ 8} Attendant circumstances are any factors that would affect the degree of cаre an ordinary person would exercise in order to avoid an open and obvious danger. Horner v. Jiffy Lube Internatl., Inc., 10th Dist. Franklin No. 01AP-1054, 2002-Ohio-2880, ¶ 24.
{¶ 9} When considering whether the danger is open and obvious, the focus is on the ability of a reasonable person to perceive the danger under the circumstances, not on the actions of the individual plaintiff, which are considerations for determining proximate cause. Armstrong at ¶ 11, 13; Cole at ¶ 9 (the condition must be apparent enough to creatе an adequate warning). Furthermore, open and obvious exception requires that the business invitee must have some expectation of encountering the danger or have had a sufficient amount of time to perceive the danger before it was encountеred in order to be able to take corrective action and avoid it. Kraft v. Dolgencorp Inc., 7th Dist. Mahoning No. 06-MA-69, 2007-Ohio-4997, ¶ 35, 38.
{¶ 10} Regarding low-lying dangers, the Ohio Supreme Court has held that a permanent, low-lying guardrail at a store entrance was open and obvious, if the patron had been paying attention, because nothing obstructed his view of the danger. Armstrong at ¶ 16. However, falls due to temporary pallets or low-lying dangers can present a jury question as to whether the danger was open and obvious when the business invitee‘s view
{¶ 11} The facts in this case are generally undisputed except for the color of the рallet and floor. Appellant, who is 4 foot 11 inches tall, testified at her deposition that when she entered Kroger in the late morning, she took a copy of the sale flyer while her boyfriend grabbed a cart. As they moved into the store, she was reading the flyer and convеrsing with her boyfriend who was slightly ahead of her on her left. When appellant came around the first bin, which was waist high and on her right, she tripped on something and fell and suffered injury. At the same time, she had been glancing at the flyer, which she was holding open in front of her with both hands. She denied that the sales flyer blocked her view of the pallet and asserted she could see the area with her peripheral vision. After the incident, she saw that she had tripped on a wooden pallet she had been unable to see because the produce bin obstructed her view from the direction she had been traveling. She described the pallet as an ordinary, unpainted wooden pallet approximately 5-6 inches high and the floor as a beige/white. Appellant did not see any employees near the pallet. She оverheard an employee direct another employee to remove the empty pallets and he immediately removed the pallet which had caused her fall. Shortly after she left the store, she returned to notify management of her fall and injuries.
{¶ 13} In her sole assignment of error, appellant argues Kroger created the dangerous condition by leaving an empty pallet next to a produce bin without any warning. Furthermore, she argues that the determination of whether a hazard is an open and obvious danger is factually based and cannot be determined as a matter of law unless reasonable minds could only reach one conclusion. In this case, appellant argues the facts show the empty pallet was not an open and obvious danger because its position next to the produce bin obstructed her view until she turned to walk around the produce bin. Secondly, appellant argues the attendant circumstances surrounding her fall negate application of the open and obvious defense: the pallet was obstructed from view until she was changing direction to travel around the bin and the pallet was empty and a similar color to the floor. We note these factors are not the typical type of “attendant circumstances” as the term is normally used. These factors did not distract appellant so
{¶ 14} Kroger argues the presence of a large pallet in the produce area was a foreseeable condition and was open and obvious to a reasonable patron who was aware of her surroundings. Furthermorе, it asserts appellant did not exercise ordinary care as she negotiated the produce department because she was unaware of her surroundings as she moved while reading the sales flyer. Relying on her peripheral vision was insufficient to appreсiate danger directly in front of her. Kroger also argues that even if the pallet was not an open and obvious danger, it is still entitled to summary judgment because appellant has failed to prove Kroger breached its duty of care.
{¶ 15} Upon a review of these fаcts, we find reasonable minds could differ regarding whether the danger in this case was open and obvious. While a working pallet in a produce department is reasonably to be expected, reasonable minds could disagree whether an empty pallet located next to a produce bin would be hidden from view until a patron was nearly upon it and whether it was readily apparent to a reasonable patron in the process of shopping who was traveling in the same direction as appellant. The trial cоurt erroneously took into consideration appellant‘s actions at the time, reading a sales flyer as she was shopping, which is not relevant to the issue of whether the element of duty was established. Therefore, we find summary judgment was inappropriate and we find аppellant‘s sole assignment of error well-taken.
{¶ 17} Having found that the trial court committеd error prejudicial to appellant and that substantial justice has not been done, the judgment of the Lucas County Court of Common Pleas is reversed and remanded for proceedings consistent with this decision. Appellee is ordered to pay the costs of this appeal pursuant to
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
JUDGE
Arlene Singer, J.
JUDGE
Christine E. Mayle, J.
JUDGE
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.