2006 Ohio 561 | Ohio Ct. App. | 2006
Lead Opinion
{¶ 2} The trial court granted Office Max's motion for summary judgment, finding that the hole was an open and obvious danger, to which Office Max owed no duty to warn. Appellant now appeals, citing two assignments of error.
{¶ 4} The parties stipulated to appellant's status as a business invitee of Office Max; therefore, there is no dispute that Office Max owed a duty to appellant to exercise ordinary care in maintaining the premises in a reasonably safe condition. A business owner "is under no duty to protect a person from known dangers or dangers which are so obvious and apparent that the person should reasonably be expected to discover them and protect himself from them." Jacobs v. Gateway Property Management,
Cuyahoga App. No. 84973,
{¶ 5} Appellant asserts that the trial court, in making the determination whether the hole in the sidewalk was open and obvious, should have considered attendant circumstances, such as time, place, and surroundings, which contributed to his alleged injury. In support of his assertion, he cites to Hamaoui v. TopsFriendly Markets, Cuyahoga App. No. 85919,
{¶ 6} "[o]nly the trier of fact can determine whether the subject pallet, was, as defendant claim[ed], an open and obvious hazard or whether, as plaintiff argue[d], it was an unreasonably dangerous condition that defendant should have either warned him about or eliminated altogether [sic] from the sales floor."
{¶ 7} In Hamaoui, the plaintiff, a 315-pound man, stepped onto a wooden pallet stacked with cans of soda at the defendant's grocery store. Id. at ¶ 2. While standing on the wooden pallet, one of the wooden slats broke, causing the plaintiff to fall to the floor and incur injuries to his arm and shoulder. Id. Although the trial court granted summary judgment to the defendant, a panel of this court reversed, opining that the plaintiff's weight, the plaintiff's inability to do more to protect himself from a potential danger of stepping onto the wooden pallet, and the defendant's possible knowledge that the structural weakness of the slats created a dangerous condition by allowing it to remain on the floor were all genuine issues of material fact upon which reasonable minds could disagree. Id. at 19. The dissenting opinion, which is particularly persuasive, disagrees, stating as follows:
{¶ 8} "[N]o evidence was produced which indicated the store reasonably could foresee that anyone would choose to go around a barrier, step onto a wooden pallet made of one-inch thick slats, and pick up two cartons of soda to carry away, especially someone of appellant's bulk." Id. at 24.
{¶ 9} Despite the holding in Hamaoui, this court is keenly aware of the numerous, factually similar cases which have upheld the open and obvious doctrine and applied it as a complete bar to recovery. See, e.g., Simmers v. Bentley Constr. Co. (1992),
{¶ 10} Here, the open and obvious doctrine is applicable. First, appellant provided the trial court with no evidence that Office Max knew or should have known about the sidewalk hole, that there were any prior complaints about the hole, or that the hole had been there such a long time so as to impute notice to Office Max. Indeed, the only evidence before the trial court was appellant's deposition testimony. He testified that there was nothing obstructing his view of the hole in the sidewalk, that he could see it from far away, that he would have pedaled around the hole had he seen it, and that he had no clue how the hole got there or how long it had been there. His testimony simply does not establish Office Max's duty when he states that he does not know what happened. This testimony fails to establish a duty and there is no evidence that the hole was anything other than open and obvious. Appellant's first assignment of error is overruled.
{¶ 12} In addition, "attendant circumstances" are those "distraction[s] that would come upon a pedestrian in the same circumstances and reduce the degree of care an ordinary person would exercise at the time." McCoy,
Judgment affirmed.
It is ordered that appellees recover of appellants their 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 Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Cooney, J., Concurs. Sweeney, P.J., Dissents with Separate Opinion.
Dissenting Opinion
{¶ 13} I respectfully dissent from the conclusion reached by the majority in this case. Appellant has presented attendant circumstances that allegedly contributed to his fall. Specifically, he had never ridden his bike that particular route, it was around 10:30 p.m., the sidewalk had no lights, and he did not notice the hole in the sidewalk until he was lying on the concrete following the crash.
{¶ 14} The majority concluded that there was no evidence that Office Max knew or should have known about the sidewalk hole and that if the appellant "had looked down, he would have seen the hole and moved his bicycle around it." While a jury may ultimately agree with that conclusion, I believe this factual determination must be resolved in favor of the appellant at this point. Appellant is required to use care; however, he is not required to constantly look downward. See Texler v. D.O. SummersCleaners Shirt Laundry Co. (1998),
{¶ 15} Viewing the circumstances as a whole, I cannot summarily conclude that there is no genuine issue of fact as to whether defendant negligently maintained a dangerous condition that resulted in appellant's injuries. See Klauss v. MarcGlassman, Inc., Cuyahoga App. No. 84799,
{¶ 16} For this reason, I would sustain the assignment of error and reverse and remand for further proceedings.
