[Cite as Stewart v. ST Performing Arts, L.L.C., 2019-Ohio-4508.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


Tania Stewart                                              Court of Appeals No. L-19-1023

        Appellant                                          Trial Court No. CI0201702135

v.

ST Performing Arts, LLC, et al.                            DECISION AND JUDGMENT

        Appellees                                          Decided: November 1, 2019

                                                  *****

        Taylor R. Ward, for appellant.

        Paul R. Bonfiglio, for appellees.

                                                  *****

        MAYLE, P.J.

        {¶ 1} Appellant, Tania Stewart, appeals the trial court’s January 23, 2019 decision

granting summary judgment in favor of appellees ST Performing Arts, LLC and

Stranahan Theater Property Holdings, LLC. For the reasons that follow, we affirm the

trial court’s judgment.
                                       I. Background

       {¶ 2} Appellees, ST Performing Arts, LLC and Stranahan Theater Property

Holdings, LLC, own and operate the Stranahan Theater in Toledo, Ohio. On May 4,

2014, appellant Tania Stewart and a friend attended an evening performance of West Side

Story at appellees’ theater. Upon their arrival at the theater, Stewart’s friend dropped her

off at the front entrance because she was wearing high-heeled shoes. Stewart’s friend

then parked her vehicle in the theater’s parking lot and walked to the theater separately.

       {¶ 3} Stewart testified that, by the time the show concluded around 9:30 p.m., it

was “completely dark” outside. Stewart and her friend left the theater through a different

door than the one Stewart had entered before the show. After exiting, they began

walking toward the parking lot. To reach the parking lot, Stewart and her friend needed

to cross a driveway that extended across the entire frontage of the theater. Stewart

described the exterior of the theater, including the parking lot, as being so poorly lit that

she needed to use lights from moving vehicles to illuminate her intended path.

       {¶ 4} After crossing the driveway, Stewart encountered a sidewalk that separated

the driveway from the parking lot. Stewart testified that, because she had previously

entered the front door of the theater before the show, she was unaware of the presence of

the sidewalk as she approached it. She also testified that she was looking down as she

was walking, but she did not see the sidewalk “because it was dark” and “[a] car had

already gone by,” so she did not have any car lights to help her navigate.




2.
       {¶ 5} As Stewart stepped toward the sidewalk, her foot landed on the edge of the

curb and it “crumbled” underneath the weight of her step. Stewart fell to the ground and

immediately felt pain in her right wrist, right elbow, right shoulder, and left knee. She

also noticed bleeding from an abrasion incurred on her left knee. Stewart’s friend

assisted her to the vehicle and transported Stewart home.1

       {¶ 6} Three days after the incident, Stewart returned to the theater parking lot to

take pictures of the sidewalk where she fell. These photographs were utilized in

depositions and are part of the record on review.

       {¶ 7} Stewart ultimately filed her lawsuit alleging that appellees were negligent by

failing to “keep and maintain the premises in a reasonably safe manner, condition and

state of repair.” Appellees’ joint answer generally denied the allegations. Appellees

asserted two affirmative defenses relevant to this appeal: (1) “Plaintiff’s Complaint is

barred or precluded because the condition upon which she fell was an open and obvious

and/or commonly encountered condition on the premises,” and (2) “if there was a

dangerous condition, defendant had no notice of any dangerous condition.”

       {¶ 8} On November 30, 2018, appellees filed their motion for summary judgment.

Appellees initially argued that the “crumbling” condition of the sidewalk was an open

and obvious hazard and, therefore, they owed no duty to warn appellant of its presence.

Stewart opposed appellees’ motion on December 10, 2018. Stewart argued that the


1
 Stewart’s subsequent medical treatment, including emergency treatment later the same
evening, are not relevant to the issues presented in this appeal.



3.
condition of the sidewalk was not an open and obvious condition but instead was a latent

defect that should have been discovered by appellees upon reasonable inspection. In their

reply brief filed on December 20, 2018, appellees argued that if the dangerous condition

of the sidewalk was in fact unobservable, as Stewart argued, they could not have been on

notice of the latent defect without performing unreasonable inspections and therefore

could not be held liable.

       {¶ 9} Stewart’s sur-reply, filed January 14, 2019, argued the decaying condition of

the premises, including the general area where she fell, was sufficient to have put

appellees on notice of the latent defect and, therefore, appellees breached their duty to

maintain and repair the latent condition which caused Stewart’s fall. Appellees’ sur-

reply, filed January 22, 2019, countered that Stewart’s inconsistent arguments precluded

her from proving the causation element of her claim. That is, appellees argued that if the

condition of the premises was sufficient to put appellees on notice of a latent defect, then

the condition was also an open and obvious hazard.

       {¶ 10} On January 23, 2019, the trial court entered an order granting appellees’

motion for summary judgment. The trial court concluded that appellees could not be held

liable because the dangerous condition of the sidewalk was an “open and obvious

defect[]” and, in addition, appellees are “not liable for conditions [they] did not know

about and could not know about without taking unreasonably excessive investigative

maintenance measures.” Under either scenario, the trial court concluded, appellees could




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not be held liable for Stewart’s claimed injuries. Based on this conclusion, the trial court

entered summary judgment in appellees’ favor.

       {¶ 11} Stewart timely appealed the trial court’s judgment and identifies four

assignments of error for our review:

              1. The trial court erred in granting summary judgment by conflating

       the open and obvious standard with the duty and breach of an owner to

       reasonably maintain the premises.

              2. The trial court erred in granting summary judgment and finding

       the fact that the sidewalk would not support [appellant’s] weight to be open

       and obvious.

              3. The trial court erred in granting summary judgment and finding

       no issue of fact that appellee did not breach its duty to reasonably maintain

       and inspect the premises.

              4. The trial court erred in granting summary judgment by finding

       Appellee could not have breached its duty of care and had been on notice of

       latent defects unless excessive inspection tests were used, because there

       were no facts to support the Court’s conclusion.

                                   II. Law and Analysis

       {¶ 12} We review the grant or denial of a motion for summary judgment de novo,

applying the same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts., 61

Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989); Grafton v. Ohio Edison Co., 77




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Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Under Civ.R. 56(C), summary judgment is

appropriate where (1) no genuine issue as to any material fact exists; (2) the moving party

is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one

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

conclusion is adverse to the nonmoving party. Harless v. Willis Day Warehousing Co.,

54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).

       {¶ 13} On a motion for summary judgment, the moving party has the burden of

demonstrating that no genuine issue of material fact exists. Dresher v. Burt, 75 Ohio

St.3d 280, 292, 662 N.E.2d 264 (1996). In doing so, the moving party must point to

some evidence in the record in the form of “pleadings, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence, and written

stipulations of fact, if any, timely filed in the action[.]” Civ.R. 56(C); Dresher at 292-

293. The burden then shifts to the nonmoving party to provide evidence showing that a

genuine issue of material fact does exist. Dresher at 293. The failure to satisfy this

reciprocal burden warrants judgment against the nonmoving party. Id. at 293.

        1. The Trial Court did not “conflate” the open and obvious standard
                   with its analysis of appellees’ breach of duty.

       {¶ 14} In her first assignment of error, Stewart argues the trial court employed an

incorrect legal standard when analyzing whether summary judgment was appropriate—

which, she argues, caused the trial court to reach the wrong conclusion. That is, Stewart




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claims that the trial court erred by “conflating the open and obvious standard with the

duty and breach of an owner to reasonably maintain the premises.” We disagree.

       {¶ 15} To establish a cause of action for negligence, a plaintiff must show “the

existence of a duty, a breach of the duty, and an injury proximately resulting therefrom.”

Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 680, 693

N.E.2d 271 (1998). In premises liability cases, such as this one, the landowner’s duty

depends upon the status of the injured party at the time of the incident. Madison v.

Raceway Park, Inc., 6th Dist. Lucas No. L-08-1279, 2009-Ohio-4068, ¶ 14, citing Lang

v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2945, 909 N.E.2d 120, ¶ 10.

Here, it is undisputed that Stewart was a business invitee of appellees at the time of the

incident. In general, a landowner owes business invitees a duty of ordinary care, which

includes (1) a duty not to create a hazard on the premises, (2) a duty to warn of latent or

concealed dangers, if the landowner had actual or constructive knowledge of those

dangers, and (3) a duty to maintain the premises in a reasonably safe condition. Ray v.

Wal-Mart Stores, Inc., 2013-Ohio-2684, 993 N.E.2d 808, ¶ 18 (4th Dist.); Paschal v. Rite

Aid Pharmacy, Inc., 18 Ohio St.3d 203, 480 N.E.2d 474 (1985) (business owners have “a

duty of ordinary care in maintaining the premises in a reasonably safe condition so that

its customers are not unnecessarily and unreasonably exposed to danger.”) “While a

business owner is not an insurer of a customer’s safety * * * an owner, is ‘liable to an

invitee for injuries caused by a latent defect when the owner knows, or in the exercise of

ordinary care should have known, about the hazard for a time sufficient to correct the




7.
defect.’” Beck v. Camden Place at Tuttle Crossing, 10th Dist. Franklin No. 02AP-1370,

2004-Ohio-2989, ¶ 20. “A premises owner or occupier will be charged with constructive

notice of hazards * * * that would have been revealed by a reasonable inspection.” Ray

at ¶ 18, citing Hansen v. Wal-Mart Stores, Inc., 4th Dist. Ross No. 07CA2990, 2008-

Ohio-2477, ¶ 11.

       {¶ 16} But, “[w]here a danger is open and obvious, a landowner owes no duty of

care to individuals lawfully on the premises.” Armstrong v. Best Buy Co., Inc., 99 Ohio

St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, paragraph one of the syllabus, citing Sidle

v. Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589 (1968). “The rationale underlying this

doctrine 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, citing Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 644, 597 N.E.2d 504

(1992). When courts apply the open and obvious doctrine, “they must focus on the fact

that the doctrine relates to the threshold issue of duty. By focusing on the duty prong of

negligence, 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.

       {¶ 17} Turning to the trial court’s analysis in this case, the trial court noted in its

judgment entry that if Stewart was correct that appellees had actual or constructive notice

of a latent defect on its property given the “visible” nature of the “disrepair of the

sidewalk at issue”—i.e., “the sidewalk was crumbling, overgrown with plant life, and




8.
eroding”—then “[Stewart] should have also seen these obvious conditions and avoided

them. The theater is not liable to its patrons for such open and obvious defects, and it is

also not liable for conditions it did not know about and could not know about without

taking unreasonably excessive investigative maintenance measures.” (Emphasis added.)

Stewart argues that the trial court’s analysis was flawed because it failed to recognize that

“[w]hile a business owner should be expected to be on notice of the danger and

appreciate it and be aware of the general conditions [of the property], a business invitee is

only to discover the ‘obvious’ dangers.”

       {¶ 18} In essence, Stewart is arguing that the trial court’s analysis improperly

assumes that where the condition of a property provides constructive notice to the

landowner of the existence of a latent defect, then that defect was necessarily open and

obvious to business invitees. While we agree with the general proposition that a

defective condition is not “open and obvious” just because it could have been discovered

by the landowner through reasonable inspection and maintenance of the property—

indeed, if that were true, a landowner could never be held liable under a theory of

constructive notice—we disagree that the trial court’s analysis assumed otherwise. That

is, the trial court did not improperly assume, as Stewart argues, that a business invitee and

a landowner have an equal duty to inspect the premises for latent defects. Rather, the

trial court concluded that the dangerous condition of the sidewalk was, in fact, an “open

and obvious defect” because “the sidewalk was crumbling, overgrown with plant life, and

eroding.” The trial court’s ruling with respect to “open and obvious” was based upon




9.
“the nature of the dangerous condition itself.” Armstrong at ¶ 13. An “open and

obvious” defect—by its very nature—is not, and cannot be, a “latent” defect.

       {¶ 19} Moreover, we interpret the trial court’s statement that appellees are “not

liable for conditions [they] did not know about and could not know about without taking

unreasonably excessive investigative maintenance measures” as an alternative basis for

granting summary judgment. That is, the trial court essentially ruled that, even if it had

not already determined that the open-and-obvious doctrine negated appellees’ duty of

ordinary care, there was no evidence that appellees breached their duty to maintain the

premises in a reasonably safe condition. Although it would have been clearer if the trial

court had framed its conclusion in this manner, we believe that the judgment entry—read

as a whole—reflects that the trial court employed the proper analysis.

       {¶ 20} Stewart’s first assignment of error is, therefore, not well-taken.

      2. Appellees had no duty to warn Stewart of an open and obvious danger.

       {¶ 21} Stewart’s second assignment of error argues that the trial court erred in

finding the defective condition of the sidewalk was open and obvious. Stewart maintains

that the sidewalk’s inability to support her weight was a latent defect, rather than an open

and obvious danger.

       {¶ 22} We have previously held that “[t]he issue of whether a risk was open and

obvious may be decided by the court as a matter of law when only one conclusion can be

drawn from the established facts.” Semprich v. Cty. of Erie, 6th Dist. Erie No. E-12-070,




10.
2013-Ohio-3561, ¶ 12. On the other hand, “where reasonable minds could reach different

conclusions as to the obviousness of the risk, the issue should be resolved by a jury.” Id.

       {¶ 23} When deciding this issue, courts must consider whether the risk itself was

observable. Id. That is, “[t]he question of whether a danger is open and obvious is an

objective one.” Hallier v. Hopkins, 6th Dist. Sandusky No. S-15-024, 2016-Ohio-2661,

¶ 5, citing Goode v. Mt. Gillion Baptist Church, 8th Dist. Cuyahoga No. 87876, 2006-

Ohio-6936, ¶ 25. “The fact a plaintiff was unaware of the danger is not dispositive of the

issue.” Id. Instead, courts must consider “whether in light of the specific facts and

circumstances of the case, an objective, reasonable person would deem the danger open

and obvious.” Id., citing Stanfield v. Amvets Post No. 88, 2d Dist. Miami No. 06CA35,

2007-Ohio-1896, ¶ 12. “Even when an invitee does not actually see the object or danger

until after he or she falls, no duty exists when the invitee could have seen the object or

danger if he or she had looked.” Semprich at ¶12.

       {¶ 24} Moreover, “darkness due to lack of illumination at nighttime is not an

attendant circumstance that creates an exception to the open and obvious doctrine[.]”

Butler v. Cleveland Clinic, 8th Dist. Cuyahoga No. 105457, 2018-Ohio-93, ¶ 17; accord

Hunter v. Jamin Bingo Hall, 6th Dist. Lucas No. L-08-1084, 2008-Ohio-4485, ¶ 13

(“darkness is a naturally occurring event and not an attendant circumstance”). An

“attendant circumstance” is “any distraction that would come to the attention of an

invitee in the same circumstances and reduce the degree of care an ordinary person would

exercise at the time.” Hunter at ¶ 12. In contrast, “darkness increases rather than




11.
reduces the degree of care an ordinary person would exercise.” McCoy v. Kroger

Co., 10th Dist. Franklin No. 05AP-7, 2005-Ohio-6965, ¶ 16 (emphasis added). For this

reason, Ohio courts consistently recognize that “[d]arkness is always a warning of

danger, and for one’s own protection it may not be disregarded.” Jeswald v. Hutt, 15

Ohio St.2d 224, 239 N.E.2d 37 (1968), paragraph three of the syllabus.

       {¶ 25} Accordingly, although Stewart testified that she could not observe the

sidewalk when she stepped on it—“because it was dark,” the parking lot was poorly lit,

and she did not have any car lights to help her navigate—the nighttime darkness of the

parking lot is largely irrelevant for our analysis. The relevant issue is whether the

dangerous condition of the sidewalk was otherwise “open and obvious” at the time of

Stewart’s fall.

       {¶ 26} At her July 17, 2017 deposition, Stewart testified regarding the condition of

the sidewalk that she encountered on appellees’ premises and the circumstances under

which she fell. She stated:

       Well, I stepped on the edge of [the curb] and it crumbled. I didn’t know I

       was going to step on the edge of it, you know, because I couldn’t see where

       it was so it made me – like it broke away under my foot. I stepped – I was

       walking and I kept it the same level and it pulled me forward when I

       stepped on it, it crumbled under my foot and pulled me forward.

During that same deposition, Stewart identified exhibits A and B as photographs taken

three days after the incident. She testified that exhibit B shows the curb that “crumbled”




12.
under her weight, and she circled where her fall occurred. Stewart testified that

exhibit A, on the other hand, depicted “the continuation of the crumbled walkway” but

did not show the area where she fell. Exhibits A and B are therefore photographs of the

same, crumbling curb, but only exhibit B shows the area where she fell.

       {¶ 27} Stewart elaborated on the condition of the curb in her affidavit attached to

her opposition to appellees’ motion for summary judgment. There she describes the curb

seen in exhibit B as “eroding and crumbling.”

       {¶ 28} Stewart argues, however, that these photos were after her fall, and there is

no evidence that conclusively establishes the condition of the curb before her fall. But,

even if we assume that the precise area where Stewart stepped did not appear to be

crumbling before the accident, the evidence establishes that she encountered a visibly

“eroding and crumbling” curb.2 Despite the open and obvious nature of the crumbling

sidewalk, Stewart nonetheless stepped on the edge of it—and it crumbled under her foot,

which is not surprising given the overall condition of the curb as depicted in the

photographs. Stewart could have easily avoided this hazard by stepping over the visibly

crumbling edge of the curb. She did not. Although she testified that she “didn’t know

[she] was going to step on the edge of it”—because it was dark and she could not see




2
 We note Stewart’s argument in her reply brief that “she has been quite clear that the
exact part of the sidewalk she stepped on crumbled under her foot, not that it was
crumbled already.” Our review of her testimony and affidavit, however, does not
comport with this statement.




13.
where she was stepping—as discussed, darkness “is not an attendant circumstance that

creates an exception to the open and obvious doctrine[.]” Butler at ¶ 17.

       {¶ 29} We therefore conclude that, as a matter of law, only one conclusion can be

drawn from the established facts: the dangerous condition of the crumbling sidewalk was

an open and obvious hazard, which negates the appellees’ duty of care.

       {¶ 30} We reached a similar conclusion in Madison v. Raceway Park, Inc., 6th

Dist. Lucas No. L-08-1279, 2009-Ohio-4068. There, the plaintiff, a business invitee of

the defendant, was returning to her vehicle in defendant’s parking lot. Her exit required

her to traverse a gravel path. While it had not rained the day of the incident, rain from

earlier in the week had left a puddle on the gravel pathway. The plaintiff could not

continue on the path without getting her shoes wet so she chose to exit the gravel path

and walk alongside it past the puddle. When she went to return to the path which

appeared dry after passing the puddle, both of her feet began to sink, causing her to fall

with resulting injuries. The defendant, requesting summary judgment, argued the recent

rain and water on the ground would put a reasonable person on notice of an open and

obvious danger that the ground could be soft. In opposition, the plaintiff argued that

because the mud was concealed by the gravel over the path, it was not open and obvious

but represented a latent defect. The trial court granted summary judgment in the

defendant’s favor finding the condition causing plaintiff’s fall was open and obvious.

       {¶ 31} On appeal, we affirmed the trial court’s decision. We held that while the

danger was indeed the mud concealed by the gravel path, the surrounding facts and




14.
circumstances—including the recent rain and general puddling of water along the gravel

path— “gave sufficient warning to a reasonable person that the area might be muddy and

it could cause someone to fall.” Raceway Park at ¶ 23. We therefore concluded that the

danger was open and obvious.

      {¶ 32} Here, similar to our conclusion in Raceway Park, we find the hazardous

condition of the sidewalk was open and obvious. The crumbling and decayed condition

of the curb, as shown in photographs Stewart provided, would have put a reasonable

person on notice that the edge of the curb may crumble if stepped on. Even if we assume

that Stewart stepped on a portion of the curb that had not yet crumbled, the crumbling

condition of the surrounding curb was sufficient to put a reasonable person on notice that

any portion of that curb might crumble if stepped upon and cause a fall.

      {¶ 33} We therefore find that the hazardous condition of the sidewalk was open

and obvious, and appellees owed no duty to Stewart as a matter of law. Stewart’s second

assignment of error is found not well-taken.

      {¶ 34} Finally, given that we have concluded that appellees owed no duty to

Stewart as a matter of law, her third and fourth assignments of error—which argue that

appellees breached their duty to maintain the property in a reasonable condition—are

moot, and we decline to address them.




15.
                                      III. Conclusion

        {¶ 35} We find that, as a matter of law, the hazard Stewart encountered was open

and obvious, and appellees therefore owed no duty to Stewart. Stewart’s first and second

assignments of error are not well-taken, and her third and fourth assignments of error are

moot.

        {¶ 36} The judgment of the Lucas County Court of Common Pleas is affirmed.

Appellant is ordered to pay the costs of this appeal under App. R. 24.


                                                                         Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                               _______________________________
                                                            JUDGE
Thomas J. Osowik, J.
                                                _______________________________
Christine E. Mayle, P.J.                                    JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE


             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/.




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