[Cite as Ramsay v. Menard, Inc., 2011-Ohio-3447.]


                                      COURT OF APPEALS
                                   RICHLAND COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



ANNE RAMSAY                                    :       JUDGES:
                                               :       Hon. William B. Hoffman, P.J.
        Plaintiff-Appellant                    :       Hon. Sheila G. Farmer, J.
                                               :       Hon. Julie A. Edwards, J.
-vs-                                           :
                                               :
MENARD, INC., ET AL.                           :       Case No. 11CA9
                                               :
        Defendants-Appellees                   :       OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common Pleas,
                                                    Case No. 09CV1832



JUDGMENT:                                           Affirmed




DATE OF JUDGMENT ENTRY:                             July 11, 2011




APPEARANCES:

For Plaintiff-Appellant                             For Defendants-Appellees

JAMES E. ARNOLD                                     GREGORY G. BARAN
W. EVAN PRICE, II                                   3 North Main Street
115 West Main Street                                Suite 500
Fourth Floor                                        Mansfield, OH 44902
Columbus, OH 43215
Richland County, Case No. 11CA9                                                         2

Farmer, J.

       {¶1}   On January 19, 2009, appellant, Anne Ramsay, was exiting a store,

Menard's, when she fell, sustaining injuries.

       {¶2}   On December 18, 2009, appellant filed a complaint against appellee,

Menard, Inc., and several Does, alleging negligence and seeking damages.               On

September 8, 2010, appellee filed a motion for summary judgment.            By order filed

December 20, 2010, the trial court found no genuine issues of material fact to exist,

granted the motion, and entered final judgment on all claims to appellee.

       {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                                I

       {¶4}   "THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO

DEFENDANT MENARD'S, INC."

                                                I

       {¶5}   Appellant claims the trial court erred in granting summary judgment to

appellee as there are general issues of material fact as to whether or not attendant

circumstances contributed to her injury and were beyond her control. We disagree.

       {¶6}   Summary Judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:

       {¶7}   "Civ.R. 56(C) provides that before summary judgment may be granted, it

must be determined that (1) no genuine issue as to any material fact remains to be

litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it
Richland County, Case No. 11CA9                                                         3


appears from the evidence that reasonable minds can come to but one conclusion, and

viewing such evidence most strongly in favor of the nonmoving party, that conclusion is

adverse to the party against whom the motion for summary judgment is made. State

ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,

citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472,

364 N.E.2d 267, 274."

      {¶8}   As an appellate court reviewing summary judgment motions, we must

stand in the shoes of the trial court and review summary judgments on the same

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30

Ohio St.3d 35.

      {¶9}   It is undisputed that appellant was a business invitee.         Accordingly,

appellee owed appellant a duty of ordinary care to maintain the premises in a

reasonably safe condition and to warn of hidden defects.           Paschal v. Rite Aid

Pharmacy, Inc. (1985), 18 Ohio St.3d 203.          The open and obvious doctrine, if

applicable, is a complete bar to recovery unless the business invitee can establish

attendant circumstances. Armstrong v. Best Buy Company, Inc., 99 Ohio St.3d 79,

2003-Ohio-2573. The rationale underlying the open and obvious doctrine is that the

"open and obvious nature of the hazard itself serves as a warning and that the owner or

occupier may reasonably expect that persons entering the premises will discover those

dangers and take appropriate measures to protect themselves." Hunter v. Jamin Bingo

Hall, Lucas App. No. L-08-1086, 2008-Ohio-4485, ¶8. "Although there is no precise

definition of 'attendant circumstances,' they generally include any distraction that would

come to the attention of an invitee in the same circumstances and reduce the degree of
Richland County, Case No. 11CA9                                                         4

care an ordinary person would exercise at the time." Carter v. Miles Supermarket,

Cuyahoga App. No. 95024, 2010-Ohio-6365, ¶18, citing McGuire v. Sears, Roebuck &

Co. (1996), 118 Ohio App.3d 494.

      {¶10} It is appellant's position that her vision was focused on avoiding a store

employee maneuvering a shopping cart and therefore she changed her course; her

view of the 4x4 was obstructed by shopping carts that a store employee had used to

prop open a handicapped gate; she confronted the 4x4 a step or two after she turned to

avoid the store employee with the shopping cart; and the 4x4 was obscured by shadows

across the floor. See, Appellant's Memorandum in Opposition to Motion for Summary

Judgment filed September 24, 2010 at page 11.

      {¶11} To counteract the attendant circumstances theory raised by appellant,

appellee argued the 4x4 was open and obvious; appellant was wearing her glasses at

the time of the fall; the area was properly lit; and she admitted the lighting did not

contribute to her fall. Ramsay depo. at 26, 47. Appellee argued it was appellant's

failure to look down that caused her fall. Id. at 47-48. Appellant testified she was not

distracted by something while exiting the store. T. at 52.

      {¶12} The record consists of several depositions including appellant's, videotape

surveillance of the area and actual fall, and photographs of the area. As the videotape

depicts, a balloon display was over the entrance and secured by what appears to be a

continuous piece of wood. Both the display of balloons and the wood are clearly visible.

Further, given the configuration of Menard's, the area of the fall was an entrance, not an

exit, as is demonstrated by the turnstile entrance and a handicapped gate for entrance.
Richland County, Case No. 11CA9                                                        5


It was this handicapped gate that appellant chose to exit through which was propped

open by shopping carts.

        {¶13} Appellant described her exit and fall as follows:

        {¶14} "Q. So what do you remember, just sort of walking unobstructed - -

        {¶15} "A. Just walking towards the exit. And the next thing, I'm down on my right

side.

        {¶16} "Q. Do you remember walking toward the doors and then for some reason

making a right turn and taking a few steps before you fell?

        {¶17} "A. No.

        {¶18} "Q. What did you fall over?

        {¶19} "A. Whatever was lying there.

        {¶20} "Q. Do you know today what it was?

        {¶21} "A. A piece of wood. Four-by-four. Something. I don't know.

        {¶22} "Q. Well - -

        {¶23} "A. Something that shouldn't have been there.

        {¶24} "Q. Well, you may have heard a piece of wood or a four-by four from other

people. Or do you have a recollection of tripping over a piece of wood?

        {¶25} "A. I just remember flying through the air.

        {¶26} "Q. So you're on your way out of the store and you're walking through the

doors, and suddenly you found yourself flying through the air, landing apparently on

your right shoulder?

        {¶27} "A. Yes.
Richland County, Case No. 11CA9                                                            6


      {¶28} "Q. And as far as knowing what you tripped over, you really don't know

other than what other people have told you; is that right?

      {¶29} "A. Right.

      {¶30} "Q. So if people hadn't told you that you tripped over a piece of wood or a

four-by-four, you wouldn't have any idea what you tripped over; is that right?

      {¶31} "A. Right.

      {¶32} "Q. What happened, Mrs. Ramsay, after you found yourself on the

ground?

      {¶33} "A. After I found myself on the ground? Well, I lay there for quite a while.

      {¶34} "Q. Did you holler out for help or anything?

      {¶35} "A. No, I did not.

      {¶36} "Q. So you hit the ground and you're wondering what in the world just

happened to me?

      {¶37} "A. Right.

      {¶38} "Q. And then some people - -

      {¶39} "A. And then I think one of the cashiers came over and she got the

manager or assistant manager.

      {¶40} "Q. Did you remain on the ground - -

      {¶41} "A. Yes, I did." Ramsay depo. at 31-32.

      {¶42} Appellant readily admitted she did not know what she fell on as she was

not looking down. Id. at 47-48. A business owner owes no duty to a business invitee

who could have seen an obstruction if he/she would have looked down. Lydic v. Lowe's
Richland County, Case No. 11CA9                                                      7

Companies, Inc. Franklin App. No. 01AP-1432, 2002-Ohio-5001; Breier v. Wal-Mart

Stores, Inc., Lucas App. No. L-08-1327, 2008-Ohio-6945.

        {¶43} Based upon appellant's clear and unequivocal testimony, we find the trial

court did not err in granting summary judgment to appellee. The argued attendant

circumstances were not solely caused by appellee. Appellant chose to exit through an

entrance, turned to avoid a store employee with a shopping cart, and failed to look

down.

        {¶44} We conclude the attendant circumstances were not sufficiently proved to

have caused the fall.

        {¶45} The sole assignment of error is denied.

        {¶46} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By Farmer, J.

Edwards, J. concur and

Hoffman, P.J. dissents.



                                            _s/ Sheila G. Farmer__________________




                                            _s/ Julie A. Edwards__________________




                                            ___________________________________

                                                            JUDGES

SGF/sg 615
Richland County, Case No. 11CA9                                                       8

Hoffman, P.J., dissenting

      {¶47} I respectfully dissent from the majority opinion.

      {¶48} When considering all the evidence in a light most favorable to Appellant, I

find reasonable minds could differ on whether there were sufficient “attendant

circumstances” to find the 4 x 4 was not open and obvious.

      {¶49} I do not agree the mere fact the 4 x 4 could have been seen if Appellant

had looked down is determinative. An individual is not, as a matter of law, required to

constantly look downward while walking. Hudspath v. The Cafaro Company, 2005-

Ohio-6911, citing syllabus two of Grossnickle v. Village of Germantown (1965), 3 Ohio

St.2d 96.   Given all the attendant circumstances surrounding the grand opening of

Appellee’s store, including, but not limited to, the festooned temporary archway

supported by the 4 x 4, its location, and Appellant’s need to maneuver her way around

various obstacles during her attempt to exit the store, I find granting Appellee summary

judgment based upon the open and obvious doctrine was error.




                                                s/ William B. Hoffman_______________
                                                HON. WILLIAM B. HOFFMAN
Richland County, Case No. 11CA9                                                   9


             IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT



ANNE RAMSAY                              :
                                         :
       Plaintiff-Appellant               :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
MENARD, INC., ET AL.                     :
                                         :
       Defendants-Appellees              :         CASE NO. 11CA9




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Richland County, Ohio is affirmed. Costs to

appellant.




                                         _s/ Sheila G. Farmer__________________




                                         _s/ Julie A. Edwards__________________




                                         ___________________________________

                                                          JUDGES
