[Cite as Carr v. The Ohio State Univ. Med. Ctr., 2011-Ohio-6871.]



                                                        Court of Claims of Ohio
                                                                                The Ohio Judicial Center
                                                                        65 South Front Street, Third Floor
                                                                                   Columbus, OH 43215
                                                                         614.387.9800 or 1.800.824.8263
                                                                                    www.cco.state.oh.us



DONNA J. CARR,                                             Case No. 2010-11366

       Plaintiff,

       v.                                                  Judge Joseph T. Clark

THE OHIO STATE UNIVERSITY
MEDICAL CENTER,

       Defendant.


      ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT


        {¶1} On October 11, 2011, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(B). On November 8, 2011, plaintiff filed an untimely response.
Defendant’s motion for summary judgment is now before the court on a non-oral
hearing pursuant to L.C.C.R. 4(D).
        {¶2} Civ.R. 56(C) states, in part, as follows:
        {¶3} “Summary judgment shall be rendered forthwith 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. 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.” See also
Case No. 2010-11366                          -2-                                    ENTRY

Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317.
          {¶4} Plaintiff alleges that in the fall of 2008, she was walking with her son from
the Ohio State University (OSU) Medical Center to the parking garage after her son’s
medical appointment.        She alleges that she was walking on a “graveled and dirt
exposed inclined pathway” along Tenth Street when she slipped, fell, and suffered
injury.
          {¶5} Plaintiff alleges that defendant knew the dirt path was unreasonably
dangerous and yet permitted the condition to persist.          Defendant argues that any
danger posed by the pathway was an open and obvious condition and that plaintiff’s
own actions were the sole proximate cause of her injuries.
          {¶6} In order for plaintiff to prevail upon her claim of negligence, she must prove
by a preponderance of the evidence that defendant owed her a duty, that defendant’s
acts or omissions resulted in a breach of that duty, and that the breach proximately
caused her injuries. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-
2573, ¶8, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77.
          {¶7} Under Ohio law, the duty owed by an owner or occupier of premises
generally depends on whether the injured person is an invitee, licensee, or trespasser.
Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315, 1996-
Ohio-137. Plaintiff was on defendant’s premises for purposes that would classify her as
an invitee, inasmuch as she was “upon the premises of another, by invitation, express
or implied, for some purpose which is beneficial to the owner.” Baldauf v. Kent State
Univ. (1988), 49 Ohio App.3d 46, 47.          An owner or occupier of premises owes its
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,
supra, at ¶5.
Case No. 2010-11366                        -3-                                    ENTRY

       {¶8} However, “[w]here a danger is open and obvious, a landowner owes no duty
of care to individuals lawfully on the premises.” Id. at syllabus. This rule is based upon
the rationale that the very nature of an open and obvious danger serves as a warning,
and that the “‘owner or occupier [of land] may reasonably expect that persons entering
the premises will discovery those dangers and take appropriate measures to protect
themselves.’” Id. at ¶5, quoting Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d
642, 644.
       {¶9} “Open-and-obvious hazards are those hazards that are neither hidden nor
concealed from view and are discoverable by ordinary inspection. ‘[T]he dangerous
condition at issue does not actually have to be observed by the plaintiff in order for it to
be an “open and obvious” condition under the law. Rather, the determinative issue is
whether the condition is observable.’ Put another way, the crucial inquiry is whether an
invitee exercising ordinary care under the circumstances would have seen and been
able to guard himself against the condition. Thus, this court has found no duty in cases
where the plaintiff could have seen the condition if he or she had looked even where the
plaintiff did not actually notice the condition before falling.”   McConnell v. Margello,
Franklin App. No. 06AP-1235, 2007-Ohio-4860, ¶10. (Internal citations omitted.)
       {¶10} “[U]nless the record reveals a genuine issue of material fact as to whether
the danger was free from obstruction and readily appreciable by an ordinary person, it is
appropriate to find that the hazard is open and obvious as a matter of law.” Id. at ¶11,
citing Freiburger v. Four Seasons Golf Ctr., L.L.C., Franklin App. No. 06AP-765, 2007-
Ohio-2871, ¶11.
       {¶11} In support of its motion, defendant filed plaintiff’s deposition transcript. In
her deposition, plaintiff testified that she was walking behind her son along a well-worn
dirt and gravel path across the street from the OSU Medical Center. She explained that
as she was walking, she stepped on gravel and pebbles that caused her to slip and fall.
She had walked on the same path earlier in the day. She testified that she walked on
Case No. 2010-11366                         -4-                                    ENTRY

this pathway, instead of the sidewalk located on the other side of the street, because “I
would have to have went across the street, walk in front of the hospital, cross the street
again to go in front of the garage. That would have been an obscure path of travel.”
(Deposition, page 21, lines 13-16.) Further, she testified that she walked on the path
because it was the shortest distance and many other people were walking on it.
       {¶12} In her deposition, plaintiff testified that she saw the gravel on the path; that
she was looking forward when she fell; that she walked on the path during the daylight;
and that while there may have been a light dusting of snow on the ground, it did not
obstruct her view of the gravel on the dirt path.
       {¶13} Further, in her deposition, plaintiff authenticated several photographs that
she took of the dirt and gravel path shortly after her fall. The photographs depict a well-
worn path in the grassy area next to the street.         Based upon these photographs,
reasonable minds can only conclude that persons walking in this area could identify the
dirt and gravel path upon ordinary inspection and appreciate the dangers, if any, of
walking on the pathway. Accordingly, the court finds that to the extent that the path
posed a danger, such danger was open and obvious and defendant therefore owed no
duty of care toward plaintiff.
       {¶14} In her untimely response, plaintiff provided photographs of the path on
which she fell; however, the photographs have not been authenticated pursuant to
Civ.R. 56(E).     Further, she failed to provide the court with any affidavit or other
permissible evidence to support her allegations.
       {¶15} Construing the evidence most strongly in plaintiff’s favor, the court finds
that the gravel on the path was observable, and thus, it was an open and obvious
condition. Furthermore, plaintiff’s deposition testimony establishes that her attention
was not diverted by any unusual circumstance of defendant’s making while she walked
along the path.    Accordingly, defendant owed no duty to plaintiff, and defendant is
entitled to judgment as a matter of law.
Case No. 2010-11366                         -5-                                   ENTRY

        {¶16} For the foregoing reasons, the court finds that there are no genuine issues
of material fact and that defendant is entitled to judgment as a matter of law.
Defendant’s motion for summary judgment is GRANTED and judgment is rendered in
favor of defendant. Court costs are assessed against plaintiff. The clerk shall serve
upon all parties notice of this judgment and it date of entry upon the journal.



                                          _____________________________________
                                          JOSEPH T. CLARK
                                          Judge



cc:


Emily M. Simmons                              Donna J. Carr
Assistant Attorney General                    4125 Dundee Avenue, Apt. C
150 East Gay Street, 18th Floor               Columbus, Ohio 43227
Columbus, Ohio 43215-3130




Filed November 30, 2011
To S.C. reporter December 30, 2011
