JAMES SEXTON, ET AL. v. CERTIFIED OIL COMPANY
Case No. 11CA3299
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
Released: 02/07/13
[Cite as Sexton v. Certified Oil Co., 2013-Ohio-482.]
DECISION AND JUDGMENT ENTRY
Sanford A. Meizlish, Barkan Meizlish Handelman Goodin Derose Wentz, LLP, Columbus, Ohio, for Appellants.
David K. Frank, Robert H. Stoffers, and Jeffery S. Maynard, Mazanec, Raskin & Ryder Co., L.P.A., Columbus, Ohio, for Appellee.
McFarland, P. J.
{¶1} James and Sheila Sexton appeal the judgment of the Ross County Court of Common Pleas, granting summary judgment to Defendant-Appellee Certified Oil Company. Having reviewed the record and the pertinent law, we affirm.
FACTS
{¶3} Appellant testified that on the accident date, he arrived at the gas station between 12:30 and 1:00 p.m. He exited his vehicle, pumped gas, and walked between two sets of pumps. When he walked between the pumps, he fell. A woman helped him up. He went into the station to report his fall. On his way out of the station, he noticed a section of concrete was raised at the place where he tripped. He did not measure the raised concrete, but testified it appeared to be 1 ½ to 2 inches high. Appellant took photographs of the area where he fell, and he testified the photographs reflected the conditions present on the day of his fall. Specifically, he testified there had been a shadow cast on the area where he fell.
{¶4} Appellant further testified he had been to that particular Certified station on approximately three prior occasions. On the day of the incident, prior to his fall, Appellant testified he never looked at the ground, nor did he look to see what caused him to fall afterwards. Appellant acknowledged there were no obstructions or other objects which would block his view of the concrete.
ASSIGNMENT OF ERROR
I. THE COMMON PLEAS COURT ERRED BY ENTERING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT-APPELLEE CERTIFIED OIL COMPANY WHEN (1) THE RECORD, WHEN CONSTRUED IN ACCORDANCE WITH
LEGAL ANALYSIS
{¶6} As a threshold matter, Appellee Certified Oil points out that summary judgment in its favor on Appellant Sheila Sexton‘s loss of consortium claim was also appropriate, even though it was not specifically addressed by the trial court‘s judgment entry. “An order which adjudicates one or more but fewer than all the claims * * * must meet the requirements of
{¶7} A claim for loss of consortium is derivative in that the claim is dependent upon the defendant having committed a legally cognizable tort upon the spouse who suffers bodily injury. Bowen v. Kil-Kare, Inc., 63 Ohio St. 3d 84, 88, 585 N.E.2d 384 (1992). While a spouse‘s claim for loss of consortium is separate and distinct, the non-injured spouse cannot recover for loss of consortium if there is no cognizable claim under Ohio law that would be available to the injured spouse. LeMaster v. Davis, 4th Dist. No. 95CA30, 1996 WL 174627, (Apr. 10, 1996); See also, Gallimore v. Children‘s Hosp., 67 Ohio St.3d 244, 617 N.E.2d 1052 (1993). Because the trial court determined summary judgment on Appellant James Sexton‘s claims to be appropriate, Appellant Sheila Sexton‘s loss of consortium claim did not survive. Based on the above, we believe judicial economy mandates that we proceed with a disposition on the merits. See e.g. Ratliff v. Morehead, 4th Dist. No 97CA2505, 1998 WL 254031, (May 19, 1998).
WAIVER
{¶8} Appellee Certified Oil initially argues that Appellants have waived their arguments on appeal as to “multiple issues of material fact” in that Appellant‘s arguments are raised only in skeletal form, without
SUMMARY JUDGMENT STANDARD
{¶9} Initially, we note that appellate courts conduct a de novo review of trial court summary judgment decisions. See, e.g., Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Accordingly, an appellate court must independently review the record to determine if summary judgment is appropriate and need not defer to the trial court‘s
{¶10} * * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, 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. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party‘s favor.
{¶11} Pursuant to
NEGLIGENCE
{¶12} A successful negligence action requires a plaintiff to establish that: (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached the duty of care; and (3) as a direct and proximate result of the defendant‘s breach, the plaintiff suffered injury. See, e.g., Texler v. D.O. Summers Cleaners, 81 Ohio St.3d 677, 680, 693 N.E.2d 217 (1998); Jeffers v. Olexo, 43 Ohio St.3d 140, 142, 539 N.E.2d 614 (1989); Menifee v. Ohio Welding Products, Inc., 15 Ohio St.3d 75, 472 N.E.2d 707 (1984). If a defendant points to evidence to illustrate that the plaintiff will be unable to prove any one of the foregoing elements, and if the plaintiff fails to respond as
THE “OPEN AND OBVIOUS” DOCTRINE
{¶14} A premises owner or occupier possesses the duty to exercise ordinary care to maintain its premises in a reasonably safe condition, such that business invitees will not unreasonably or unnecessarily be exposed to danger. Jackson v. Pike County, ¶16. See e.g. , Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 203, 480 N.E.2d 474 (1985). A premises
{¶15} Therefore, when a danger is open and obvious, a premises owner owes no duty of care to individuals lawfully on the premises. Armstrong, at ¶ 5; Sidle, paragraph one of the syllabus. By focusing on duty, “the rule properly considers the nature of the dangerous condition itself, as opposed to the nature of the plaintiff‘s conduct in encountering it.” Armstrong at ¶ 13. The underlying rationale is that “the open and obvious nature of the hazard itself serves as a warning. Thus, the owner or occupier may reasonably expect that persons entering the premises will discover those dangers and take appropriate measures to protect themselves.” Id. at ¶ 5. “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
{¶16} In the case at bar, we agree with the trial court‘s opinion that any danger associated with the raised concrete at the Certified gas station was open and obvious. Nothing about the condition of the concrete was hidden or concealed from view from a person who was watching where he or she was going. Mr. Sexton testified that there was no rain or snow, no ice or snow accumulation which prevented him from looking at the pavement as he walked. There was nothing that struck him as being abnormal in comparison to his prior visits to the gas station. More important, Appellant testified that he never looked at the ground in the area where he fell before he stumbled and fell, and that there were no obstructions or other objects blocking his view of the concrete or pathway he was taking into the gas station. The facts demonstrate that Appellant failed to look and discover the raised concrete prior to his fall. We next consider whether or not
“THE TWO INCH RULE”
{¶17} This general rule, known as the “two-inch rule“, has been clarified by the Supreme Court of Ohio in Cash v. Cincinnati, 66 Ohio St.2d 319, 421 N.E.2d 1275 (1981). In Cash, the Supreme Court established that differences in height of two inches or less create a rebuttable presumption which may be rebutted by a showing of attendant circumstances sufficient to render the defect substantial. Cash, supra, at 323-324. What constitutes attendant circumstances has not been clearly defined; however, the totality of the circumstances of each case must be examined to determine if the circumstances create a substantial defect. Stockhauser v. Archdiocese of Cincinnati, 97 Ohio App.3d 29, 646 N.E.2d 198, (2nd. Dist. 1994), citing France v. Parliament Park Townhomes, 2nd. Dist. No. 14264, 1994 WL 15658, (Apr. 27, 1994). Appellant acknowledged in his deposition that the raised concrete which he asserts caused his fall was 1 ¼ to 2 inches in height. Appellant argues that the attendant circumstances, i.e, the shadow that was cast between the gas pumps, rendered the raised concrete a substantial defect. Specifically, Appellant testified that after he picked himself up from the fall, he went into the gas station and attempted to file a
“ATTENDANT CIRCUMSTANCES”
{¶18} “Attendant circumstances” may also create a genuine issue of material fact as to whether a hazard is open and obvious. Jackson v. Pike County, ¶21. Lang at ¶ 24; Cummin v. Image Mart, Inc., 10th Dist. No. 03AP1284, 2004-Ohio-2840, 2004 WL 1220041, at ¶ 8, citing McGuire v. Sears, Roebuck & Co., 118 Ohio App.3d 494, 498, 693 N.E.2d 807 (1st Dist. 1996). An attendant circumstance is a factor that contributes to the fall and is beyond the injured person‘s control. Jackson v. Pike County, ¶21. See, e.g. Backus v. Giant Eagle, Inc., 115 Ohio App.3d 155, 158, 684 N.E.2d 1273 (7th Dist. 1996). “The phrase refers to all circumstances surrounding the event, such as time and place, the environment or background of the event, and the conditions normally existing that would unreasonably increase the normal risk of a harmful result of the event.” Jackson v. Pike County, ¶21; Cummin at ¶ 8, citing Cash. An “attendant circumstance” has also been
{¶19} Attendant circumstances do not include the individual‘s activity at the moment of the fall, unless the individual‘s attention was diverted by an unusual circumstance of the property owner‘s making. Jackson v. Pike County, ¶22. Moreover, an individual‘s particular sensibilities do not play a role in determining whether attendant circumstances make the individual unable to appreciate the open and obvious nature of the danger. Id. As the court explained in Goode v. Mt. Gillion Baptist Church, 8th Dist. No. 87876, 2006-Ohio-6936, 2006 WL 3804534, at ¶ 25: “The law uses an objective, not subjective, standard when determining whether a danger is open and obvious. The fact that appellant herself was unaware of the hazard is not dispositive of the issue. It is the objective, reasonable person that must find that the danger is not obvious or apparent.” Thus, we use an objective standard to determine whether the danger associated with the condition was open and obvious. Jackson v. Pike County, ¶22. Furthermore, the question of whether a danger is open and obvious is highly fact-specific. Stanfield v. Amvets Post No. 88, 2nd Dist. No. 06CA35, 2007-Ohio-1896, 2007 WL 1174445, at ¶ 12; Henry v. Dollar General Store, 2nd Dist. No.2002-CA-47, 2003-Ohio-206, 2003 WL 139773, at ¶ 16.
{¶20} Here, we determine that upon consideration of the totality of the circumstances, the raised concrete was an open and obvious condition. Further, we find that Appellant failed to establish the existence of attendant circumstances so as to create a genuine issue of any material fact. Appellant‘s argument regarding the shadow over the area of the raised concrete is not persuasive. As we previously observed in Jackson v. Pike County, ¶24: (1) a business owner has no affirmative duty to light walkways and public parking areas outside their buildings to accommodate invitees; and (2) darkness is always a warning of danger. Jeswald v. Hutt, 15 Ohio St.3d 224, 239 N.E.2d 37, (1968) paragraphs two and three of the syllabus. Thus, “[t]he amount of light in a given area is an open and obvious condition.” Jackson v. Pike County, ¶24, quoting, Swonger v. Middlefield Village Apartments, 11th Dist. No. 2003-G-2547, 2005-Ohio-570, at ¶ 12. We reiterate our statement in Jackson v. Pike County, that “if the area was dark and shadowed, as claimed, then such condition itself should have
{¶21} For the foregoing reasons, we overrule Appellants’ assignment of error and affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellants costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Kline, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Judgment Only.
For the Court,
BY:
Matthew W. McFarland
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.