[Cite as Spence v. Baird Brothers Saw Mill, Inc., 2017-Ohio-8161.]



                           STATE OF OHIO, MAHONING COUNTY
                                  IN THE COURT OF APPEALS
                                        SEVENTH DISTRICT

MICHAEL SPENCE, et al.                                  )
                                                        )
        PLAINTIFFS-APPELLANTS                           )
                                                        )            CASE NO. 16 MA 0117
VS.                                                     )
                                                        )                   OPINION
BAIRD BROTHERS SAW MILL, INC.                           )
                                                        )
        DEFENDANTS-APPELLEES                            )

CHARACTER OF PROCEEDINGS:                               Civil Appeal from the Court of Common
                                                        Pleas of Mahoning County, Ohio
                                                        Case No. 2014 CV 02351

JUDGMENT:                                               Affirmed.

APPEARANCES:
For Plaintiffs-Appellants                               Attorney Scott Cochran
                                                        19 East Front Street, Suite 1
                                                        Youngstown, Ohio 44503

For Defendants-Appellees                                Attorney Jack Baker
                                                        Attorney Mel Lute, Jr.
                                                        400 South Main Street
                                                        North Canton, Ohio 44720

JUDGES:

Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Carol Ann Robb


                                                        Dated: October 2, 2017
[Cite as Spence v. Baird Brothers Saw Mill, Inc., 2017-Ohio-8161.]
DeGENARO, J.

        {¶1}     Plaintiffs-Appellants, Michael Spence and his wife, appeal the trial
court's grant of summary judgment in favor of Defendants-Appellees, Baird Brothers
Saw Mill, Inc. For the reasons below, the judgment of the trial court is affirmed.
        {¶2}     The facts in this case are gleaned from Spence's deposition testimony.
Spence, a self-employed construction contractor, was picking up doors and other
materials from Baird’s warehouse in February. As Spence had visited Baird to
purchase merchandise before, he knew the overhead door was mechanically
operated, and moved vertically from top to bottom.
        {¶3}     Spence parked his truck in front of a closed 16-foot industrial door and
entered the warehouse through a man door. Baird's employee asked Spence to
activate the button to open the overhead door as the employee carried the first door
for Spence; both men walked through the large, 16-foot overhead industrial door to
load the merchandise into Spence's truck. Spence indicated he was going to move
materials around his truck to make room for the second door. The Baird employee
walked back inside the warehouse to retrieve the second door for Spence. Due to the
cold February weather, the employee activated the button to close the overhead
industrial door. Instead of moving items around in his truck, Spence followed the
employee back into the building while the overhead door was closing; Spence was
struck on the top of the head forcing him to the floor.
        {¶4}     Spence and his wife filed a personal injury complaint against Baird,
which Baird answered. Baird filed a motion for summary judgment that Spence
opposed, and the trial court later granted the motion.
        {¶5}     Spence's sole assignment of error asserts:

        The trial Court erred in granting summary judgment as issues of
        material fact exist as to whether the condition which caused Appellant's
        injuries was open and obvious.

        {¶6}     An appellate court reviews a trial court's summary judgment decision de
novo, applying the same standard used by the trial court. Ohio Govt. Risk Mgt. Plan
                                                                                  -2-


v. Harrison, 115 Ohio St.3d 241, 2007-Ohio-4948, 874 N.E.2d 1155, ¶ 5. Summary
judgment is proper if the court, viewing the evidence in a light most favorable to the
opposing party, determines there are no genuine issues as to any material facts; the
movant is entitled to judgment as a matter of law; and that reasonable minds can
come to but one conclusion which is adverse to the opposing party. Civ.R. 56(C);
Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10. "[T]he
moving party bears the initial responsibility of informing the trial court of the basis for
the motion, and identifying those portions of the record which demonstrate the
absence of a genuine issue of fact on a material element of the nonmoving party's
claim." Dresher v. Burt, 75 Ohio St.3d 280, 296, 1996-Ohio-107, 662 N.E.2d 264.
The nonmoving party has the reciprocal burden of specificity and cannot rest on the
mere allegations or denials in the pleadings. Id. at 293.
       {¶7}   The elements of a negligence claim are duty, breach of duty, causation,
and damages. Anderson v. St. Francis–St. George Hosp., Inc., 77 Ohio St.3d 82, 84,
671 N.E.2d 225 (1996). This case turns on duty and breach of said duty. The open
and obvious doctrine defeats the duty element. Armstrong v. Best Buy Co. Inc., 99
Ohio St.3d 79, 2003–Ohio–2573, 788 N.E.2d 1088, syllabus.
       {¶8}   Both parties correctly acknowledge that Spence was Baird's business
invitee. Spence contends that material issues of fact exist as to whether the overhead
door which struck him was an open and obvious condition.
       {¶9}   Kobasko v. Jo's Dairy Dream, L.L.C., 7th Dist. No. 13 BE 0035, 2015-
Ohio-496, discussed the application of the doctrine to business invitees:

              Generally, a premises owner owes a business invitee a duty to
       exercise ordinary care and to protect the invitee by maintaining the
       premises in a safe condition. Id.; Presley v. Norwood, 36 Ohio St.2d 29,
       31, 202 N.E.2d 81 (1973).
              But a business owner does not owe invitees a duty to warn of
       dangers that are open and obvious. Armstrong v. Best Buy Co. Inc., 99
       Ohio St.3d 79, 2003–Ohio–2573, 788 N.E.2d 1088, ¶ 5. "Where a
                                                                             -3-


      danger is open and obvious, a landowner owes no duty of care to
      individuals lawfully on the premises." Id. at the syllabus. That is
      because the owner may reasonably expect those entering the property
      to discover the dangers and take appropriate measures to protect
      themselves. Simmers v. Bentley Constr. Co., 64 Ohio St.2d 642, 644,
      597 N.E.2d 504 (1992).
      *      *      *
             We are to look objectively at whether a particular danger is open
      and obvious, without regard to the injured plaintiff. Hissong v. Miller,
      186 Ohio App.3d 345, 2010–Ohio–961, 927 N.E.2d 1161, ¶ 10 (2d
      Dist.). As such, the open-and-obvious test " 'properly considers the
      nature of the dangerous condition itself, as opposed to the nature of the
      plaintiff's conduct in encountering it.' " Id., quoting Armstrong v. Best
      Buy Co., 99 Ohio St.3d 79, 2003–Ohio–2573, 788 N.E.2d 1088, ¶ 13. A
      plaintiff's failure to look where he is walking is not necessarily
      dispositive of whether a danger is open and obvious. Id. at 12, 788
      N.E.2d 1088. But if the plaintiff admits that had he looked down he
      would have noticed the danger, then the danger is open and obvious.
      Id.
             Whether a particular danger is open and obvious is very fact
      specific and, therefore, comparing the facts of this case to other cases
      is of limited value. Kidder v. Kroger, 2d Dist. No. 20405, 2004–Ohio–
      4261, ¶ 11.

Kobasko, ¶ 12-16.


      {¶10} This Court recently decided against finding a genuine issue of material
fact on the basis of the open and obvious doctrine:


      Any hazard posed by the door here was open and obvious. Sanders'
                                                                             -4-


      deposition testimony establishes that, while standing close to the door, with an
      unobstructed view of it, she grabbed the door with her left hand and pulled it
      open across her right toe, injuring it. Sanders described the door as a regular
      commercial door for a restaurant and admitted it did not stick. Indeed, the
      store manager, Hernandez inspected the door and found nothing wrong or
      unusual about the door's operation; he said it was opening and closing
      smoothly and properly, typical for a commercial door. There was no evidence
      of prior incidents or work orders to repair a defect in the door.


Sanders v. Golden Corral Corp., 7th Dist. No. 14 MA 0143, 2016-Ohio-3225, ¶ 16.
      {¶11} Applying the rationale of Kobasko and Sanders to the facts of this
case, any hazard posed by the overhead door was open and obvious.
      {¶12} Spence's deposition testimony establishes that he understood the
workings of the large overhead door. He observed it closed and activated the button
to open the door in order for Baird's employee to carry merchandise out of the
warehouse and through the door to place it in Spence's truck. There was no evidence
that the door was malfunctioning, of any prior incidents, or work orders to repair a
defect in the door. The overhead industrial door operated as it was intended to do,
and reasonable minds can only reach one conclusion, that the door's operation was
open and obvious.
      {¶13} Spence argues that the trial court incorrectly found that there was no
evidence that he could hear the operation of the overhead door. Spence is correct in
this assertion. Spence testified at his deposition that he did not hear the door close
because there was a loud diesel truck nearby. Spence contends that the sounds from
the diesel truck were an attendant circumstance that would have precluded a
reasonable individual from hearing the operation of the door. He argues that the
Baird employee pushing the button to close the overhead door also qualifies as an
attendant circumstance.
      {¶14} “Attendant circumstances may affect the applicability of the open and
                                                                              -5-


obvious doctrine." Hill v Mullins, 2d. Dist. No. 27127, 2017-Ohio-1302, ¶ 16. The term
is not precisely defined but has been held to include any distraction that would come
to the attention of a person in the same circumstances and reduce the degree of care
an ordinary person would exercise at the time. Id. (internal citations omitted).
However, “attendant circumstances do not include regularly encountered, ordinary, or
common circumstances.” Id. ¶ 17.
       {¶15} Neither of Spence's contentions rise to the level of attendant
circumstances that would reduce the degree of care an ordinary person would
exercise at the time of entering through the large overhead door. Noise coming from
a truck is an ordinary or common circumstance one might expect to encounter when
visiting a warehouse to pick up large items used in construction, as is closing a large
overhead door on a cold, winter day. As such, these factual contentions do not
constitute material facts that would preclude summary judgment.
       {¶16} It was Spence's duty to observe and be aware that the overhead
industrial door was closing. The door operated as it was intended to do, and
reasonable minds can only reach one conclusion, that the door's operation was open
and obvious. Accordingly, summary judgment was warranted and the judgment of the
trial court is affirmed.

Waite, J., concurs.

Robb, P. J., concurs.
