[Cite as Bonner v. Glassman, 2012-Ohio-86.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 96924


                                       KEVIN BONNER

                                                    PLAINTIFF-APPELLANT/CROSS
                                                    APPELLEE

                                              vs.

                                MARC GLASSMAN, INC.
                                                    DEFENDANT-APPELLEE

                                              and

                         THE AMERICAN BOTTLING CO.
                                                    DEFENDANT-APPELLEE/CROSS
                                                    APPELLANT


                                          JUDGMENT:
                                           AFFIRMED
                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-725222

BEFORE: Rocco, J., Blackmon, A.J., and Celebrezze, J.
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RELEASED AND JOURNALIZED: January 12, 2012


ATTORNEY FOR APPELLANT

Tyrone E. Reed
11811 Shaker Blvd.
Suite 420
Cleveland, Ohio 44120

ATTORNEYS FOR APPELLEES

For Marc Glassman, Inc.

John C. Meros
Schulman, Schulman, & Meros
1370 Ontario Street
600 Standard Building
Cleveland, Ohio 44113-1727

For The American Bottling Co.

Adam J. Davis
Gregory G. Guice
Reminger Co., L.P.A.
1400 Midland Building
101 Prospect Avenue, West
Cleveland, Ohio 44115-1093




KENNETH A. ROCCO, J.:

      {¶ 1} In this personal injury action, plaintiff-appellant Kevin Bonner appeals from

the trial court order that granted summary judgment on his negligence claim to
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defendants-appellees Marc Glassman, Inc. (“Marc’s”) and The American Bottling Co.

(“ABC”).

       {¶ 2} Bonner presents one assignment of error, arguing summary judgment on his

claim against the appellees was unwarranted on the record before the trial court. Bonner

contends the evidence did not demonstrate the condition that caused his injury was open

and obvious. ABC has filed a cross-appeal, challenging the trial court’s denial of its

motion to strike an exhibit Bonner attached to his opposition brief.

       {¶ 3} Since the trial court’s decision is supported by the record, Bonner’s

assignment of error is overruled, and the trial court’s order is affirmed. This disposition

renders ABC’s cross-appeal moot.

       {¶ 4} The record submitted to the trial court demonstrated the following facts.

On March 6, 2009, Bonner went shopping with his wife at the Marc’s store located at the

intersection of Mayfield Road and Green Road. Bonner was very familiar with the store,

having shopped there on a “weekly” basis for “years.”

       {¶ 5} As Bonner and his wife concluded their shopping, Bonner “went to get [his]

water for going home, and when [he] was approaching the water, it looked weird.”

Bonner observed that the cases of water, which had been placed in three stacks next to

each other, thereby delineating two store aisles, were stacked very high.          Bonner

indicated his height as “like 6’1”,” and described two of the stacks as being so high that
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he would “actually have to extend [his] arms to get a case from there,” i.e., they were

taller than he.

       {¶ 6} Since the outer stack of cases was “lower,” Bonner decided to take a case

from that one. 1 He “grabbed” one, turned, and placed it in his cart. He had just

obtained a second case and turned toward his cart when he heard someone “screaming.”

The sound came from another shopper, who saw that some of the cases of water from the

other two stacks were falling onto Bonner. The cases struck Bonner in his back, pushing

him into a steel beam. He hit his head, “blew out” his knee, and his glasses broke.

       {¶ 7} Bonner’s mishap immediately drew the attention of the store employees.

Although he accepted some “ice and a rag for [his] head,” Bonner told them he did not

want an ambulance. Bonner also made an incident report before he left the store.

       {¶ 8} Bonner and his wife proceeded to the emergency room, where Bonner

received medical treatment for his injuries. In April 2010, Bonner filed the instant

action, naming both Marc’s and ABC as defendants in his amended complaint. Bonner

alleged his injuries occurred when “improperly stacked cases of water” fell on him. He

alleged ABC’s employees stacked the cases, and both defendants “knew or should have

known” that the improper stacking could result in injuries to shoppers.




       1During his deposition testimony, Bonner never estimated the height of this
stack. The record reflects that neither Bonner’s wife nor the witness, Moore,
described the height of any of the stacks.
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       {¶ 9} Following the discovery process, ABC and Marc’s filed separate motions

for summary judgment on Bonner’s negligence claims. Marc’s argued Bonner could

prove neither that the dangerous condition was the result of any negligence on the part of

its employees, nor that Marc’s had notice of any dangerous condition. Alternatively,

Marc’s argued that any dangerous condition was “open and obvious.”

       {¶ 10} ABC argued in its brief, too, that Bonner could establish neither that ABC

had notice of a dangerous condition nor that the dangerous condition was not “open and

obvious.”   As support for their positions, both Marc’s and ABC relied solely upon

Bonner’s deposition testimony.

       {¶ 11} Bonner filed a single brief in opposition to both defendants’ motions.

Bonner argued that the store manager was aware of the existence of a dangerous

condition, that the dangerous condition had existed for a sufficient length of time to infer

“defendants” failed to exercise ordinary care for store customers, and that “attendant

circumstances” served to distract him from any obvious danger.

       {¶ 12} Bonner attached to his opposition brief two exhibits. The first was the

affidavit of Mary Moore.       Moore averred she witnessed the incident, “a rack of

beverages [fell] on Mr. Bonner’s head” while his back was turned, and that the water

“came tumbling down on him without provocation from anyone.”

       {¶ 13} The second exhibit purported to be a “store manager’s report” of the

incident. One question on this form asked for the names of “employees who provided
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assistance to claimant, saw or observed claimant after incident, or cleaned up.” The

names “Jilan C.S.M. & Rick” appeared on the line following that question.

       {¶ 14} The form also contained the question, “How do you believe the incident

occurred?” On the line next to this question were the words: “Water was over stacked

and went down[.] He had two cases in his cart so probably did something to make it fall

down (he also had alcohol smell).” On the line for the store manager’s name was “Jilan

J. Kottcot.”

       {¶ 15} Marc’s filed a reply brief, to which it attached the affidavit of Rick

Laymon. In pertinent part, Laymon averred that he was the store manager, that he had

been present in the store at the time of the incident, that Marc’s employees did not

construct displays of ABC products, that he observed the fallen display, and that the

display had been constructed by ABC’s employees. Separately, Marc’s filed a motion to

strike the second exhibit Bonner attached to his opposition brief.

       {¶ 16} ABC, too, filed a reply brief that also contained a motion to strike the

exhibits Bonner attached to his opposition brief. ABC argued that neither of Bonner’s

exhibits qualified as admissible evidence. ABC further argued that Bonner had not

provided any evidence that ABC had notice of the existence of a dangerous condition;

rather, the evidence indicated Bonner was the only person aware of the condition of the

stacks before he selected a case of water. ABC provided no evidentiary material of its

own to its reply.
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       {¶ 17} Subsequently, the trial court issued an order granting summary judgment to

both Marc’s and ABC. The trial court determined the evidence demonstrated the danger

was “open and obvious” to Bonner. The trial court also denied appellees’ motions to

strike Bonner’s exhibits, stating that the exhibits did not affect the “outcome” of the case.

       {¶ 18} Bonner appeals from the trial court’s decision and presents one assignment

of error. ABC filed a cross-appeal, also asserting one assignment of error.2 Bonner’s

assignment of error states:

       {¶ 19} “I. The trial court erred to the substantial prejudice of the Appellant when

it granted each Appellee’s Motion For Summary Judgment when genuine questions of

material fact created a jury question as to whether a hazard was open an[d] obvious

versus latent, or whether exigent circumstances existed, in light of the totality of

circumstances at the time when Appellant sustained the injuries.”

       {¶ 20} Bonner argues summary judgment in favor of Marc’s and ABC was

improper because issues of material fact remain with respect to his negligence claim. He

contends the evidence does not demonstrate the dangerous condition was “open and

obvious”; alternatively, he contends that exigent circumstances existed that made the

issue one for a jury’s determination.




       2ABC’scross assignment of error states: “The trial court abused its discretion
in denying Appellee’s motion to strike unauthenticated evidence.”
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       {¶ 21} Appellate review of a trial court’s grant of summary judgment is de novo.

Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. Pursuant to

Civ.R. 56(C), summary judgment is appropriate when there is no genuine issue of

material fact, the moving party is entitled to judgment as a matter of law, and reasonable

minds can come to but one conclusion and that conclusion is adverse to the nonmoving

party, said party being entitled to have the evidence construed most strongly in his favor.

The party moving for summary judgment bears the burden of showing that there is no

genuine issue of material fact and that it is entitled to judgment as a matter of law.

Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107, 662 N.E.2d 264.

       {¶ 22} In order to overcome a properly-supported summary judgment motion in a

negligence action, a plaintiff must prove that the defendant breached a duty owed to the

plaintiff and that this breach was the proximate cause of the plaintiff’s injuries. Texler v.

D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 1998-Ohio-602, 693

N.E.2d 271. In the instant case, Bonner failed to establish that either Marc’s or ABC

breached any duty of care.

       {¶ 23} “The existence of a duty is fundamental to establishing actionable

negligence, without which there is no legal liability.” Adleman v. Timman (1997), 117

Ohio App.3d 544, 690 N.E.2d 1332.

       {¶ 24} A business owner owes a business invitee such as Bonner a duty of ordinary

care in maintaining the premises in a reasonably safe condition so that invitees are not
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subject to unreasonable dangers. Frano v. Red Robin Internatl., Inc., 181 Ohio App.3d

13, 2009-Ohio-685, 907 N.E.2d 796; Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio

St.3d 203, 480 N.E.2d 474. Although a business is not an insurer of its invitee’s safety,

it must warn them of any latent, hidden, or concealed dangers if it knows or has reason to

know of them. Frano; Jackson v. Kings Island (1979), 58 Ohio St.2d 357, 390 N.E.2d

810.

       {¶ 25} However, a business has no duty to protect an invitee from dangers that

either are known to such invitee or are so obvious and apparent that he may reasonably be

expected to discover them and protect himself against them. Sidle v. Humphrey (1968),

13 Ohio St.2d 45, 233 N.E.2d 589. “The rationale behind the [open and obvious]

doctrine is that the open and obvious nature of the hazard itself serves as a warning.”

Summers v. Bentley Constr. Co., 64 Ohio St.3d 642, 1992-Ohio-42, 597 N.E.2d 504.

Therefore, the doctrine obviates any duty to warn of an obvious hazard and bars

negligence claims for injuries related to the hazard. Armstrong v. Best Buy Co., Inc., 99

Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088.

       {¶ 26} In Armstrong, the court held that since open and obvious dangers relate to

the issue of duty, the court properly considers the nature of the dangerous condition itself

in applying the doctrine, as opposed to the nature of the plaintiff’s conduct in

encountering it. Id. “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
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the condition itself is so obvious that it absolves the property owner from taking any

further action to protect the plaintiff.” Id. at ¶13.

       {¶ 27} Thus, the open and obvious danger does not actually have to be observed by

the plaintiff in order for it to be an open and obvious condition under the law. Konet v.

Marc Glassman, Inc., Lake App. No. 2004-L-151, 2005-Ohio-5280 ¶33.                       The

determinative issue is whether the condition was observable. Id.

       {¶ 28} In this case, Bonner unequivocally stated that he had been shopping at that

particular store for years, that when he went to retrieve “his” water, he noticed that two of

the three stacks of water cases were “taller than” he, and that he wondered “why would

they stack them so high.” Despite his observation, Bonner nevertheless “grabbed” a case

from the one stack that was “lower.”

       {¶ 29} Disturbing heavy cases that were stacked “so high” constituted an obvious

danger. Bonner’s action apparently was enough to destabilize the entire display. When

the record supports a determination that the open and obvious doctrine applies, thereby

obviating a property owner’s duty to warn of the hazard and acting as a complete bar to

any negligence claim, the defendant is entitled to summary judgment. Armstrong at ¶5.

       {¶ 30} In order to overcome the application of the open and obvious doctrine,

Bonner further contends that, in general, Marc’s stores contain hazards that are not

observable due to attendant circumstances, such as foot traffic and noise,            which

appellees should have foreseen. See, e.g., Hamaoui v. Tops Friendly Markets, Cuyahoga
                                           11

App. No. 85919, 2005-Ohio-6718 (Rocco, J., dissenting). Attendant circumstances may

create a genuine issue of material fact as to whether a danger was open and obvious. Id.

       {¶ 31} 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 care an ordinary person would exercise at

the time.   McGuire v. Sears, Roebuck & Co. (1996), 118 Ohio App.3d 494, 498, 693

N.E.2d 807. This court has declined to extend the exception to apply to cases in which

the circumstances should have led the plaintiff to exercise heightened care for his

personal safety.    Storc v. Day Drive Assoc. Ltd., Cuyahoga App. No. 86284,

2006-Ohio-561, ¶11.

       {¶ 32} The record in this case demonstrates the only distraction Bonner

encountered occurred after he destabilized the display. Id. Bonner did not recall being

distracted from his mission to obtain “his” water. Moreover, Bonner’s wife testified at

her deposition that, in her shopping trips to the Marc’s store, when items were placed

beyond her reach, she took extra care for her own safety; she stated rather than attempting

to retrieve the items herself, she requested help from store employees.

       {¶ 33} In short, the evidence in the record supports the trial court’s determination

that the danger Bonner encountered was open and obvious, thus precluding his negligence

claim against appellees.    Carter v. Miles Supermarket, Cuyahoga App. No. 95024,

2010-Ohio-6365.
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      {¶ 34} Accordingly, Bonner’s assignment of error is overruled.

      {¶ 35} In light of     this court’s disposition of Bonner’s appeal, ABC’s

cross-assignment of error and cross-appeal are moot. App.R. 12(A)(1)(c).

      Affirmed.

      It is ordered that appellees recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said 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.



______________________________
KENNETH A. ROCCO, JUDGE

PATRICIA ANN BLACKMON, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
