[Cite as McCarthy v. Family Dollar Stores of Ohio, Inc., 2018-Ohio-598.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

MARY MCCARTHY, ET AL.                                      JUDGES:
                                                           Hon. W. Scott Gwin, P.J.
        Plaintiffs-Appellants                              Hon. William B. Hoffman, J.
                                                           Hon. Earle E. Wise, Jr., J.
-vs-
                                                           Case No. 2017CA00149
FAMILY DOLLAR STORES OF OHIO,
INC., ET AL.
                                                           OPINION
        Defendants-Appellees




CHARACTER OF PROCEEDING:                               Appeal from the Stark County Court of
                                                       Common Pleas, Case No. 2016CV02213




JUDGMENT:                                              Reversed and Remanded



DATE OF JUDGMENT ENTRY:                                February 12, 2018



APPEARANCES:

For Plaintiffs-Appellants                              For Defendants-Appellees

BRIAN L. ZIMMERMAN                                     CHRISTOPHER E COTTER
B. Zimmerman Law                                       SAMUEL N. DODOO
229 Third St. N.W., Suite 200                          Roetzel & Andress, LPA
Canton, Ohio 44702                                     222 South Main Street
                                                       Akron, Ohio 44308
Stark County, Case No. 2017CA00149                                                        2

Hoffman, J.


       {¶1}   Plaintiffs-appellants Mary McCarthy, et al. appeal the July 31, 2017

Judgment Entry entered by the Stark County Court of Common Pleas, which granted

summary judgment in favor of defendant-appellee Family Dollar Stores of Ohio, Inc.

(“Family Dollar”).

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   During the afternoon of May 29, 2015, Appellant Mary McCarthy

(“McCarthy”) visited the Family Dollar Store in Alliance, Ohio. McCarthy frequented this

particular store two or three times a month. McCarthy entered the store through a glass

door marked with a red and white “IN” sticker. The entrance door stands adjacent to the

exit door, which is marked with a red and white “OUT” sticker. Both doors on the outside

of store have a vertical metal handlebar. Both doors on the inside of store have a vertical

metal handlebar and a horizontal metal bar which extends across the center of the doors.

       {¶3}   After paying for her merchandise, McCarthy walked toward the exit. She

observed a black floor mat which appeared to lead to a “clear and bright” open exit door.

McCarthy followed the floor mat and looked up just as she walked into a clear glass

window. McCarthy lost her balance and fell backwards, fracturing her left hip and striking

her head on the floor. At the time of the incident, the window was free of any signs or

stickers, and a display unit was not positioned in front of the window as is depicted in the

pictures attached to McCarthy’s deposition.

       {¶4}   Appellant Paul McCarthy, McCarthy’s husband, and Earl Eckert went to

Family Dollar later the same day to retrieve McCarthy’s vehicle. They spoke with Marissa
Stark County, Case No. 2017CA00149                                                   3


DiFlour, the store manager, who admitted another customer had walked into the same

window that same day, but prior to McCarthy’s accident.

       {¶5}   On October 7, 2016, Appellants filed a complaint against Family Dollar,

alleging McCarthy suffered severe personal injuries as a result of the May 29, 2016

incident.

       {¶6}   On June 12, 2017, Appellants filed a motion for summary judgment on the

issue of liability. Family Dollar filed a motion for summary judgment on June 23, 3017.

Appellants filed a memorandum contra on July 14, 2017.

       {¶7}   Via Judgment Entry filed July 31, 2017, the trial court granted summary

judgment in favor of Family Dollar, finding the window was an open and obvious danger.




       {¶8}   It is from this judgment entry Appellants appeal, raising as their sole

assignment of error:



              I. THE TRIAL COURT ERRED IN GRANTING SUMMARY

       JUDGMENT I FAVOR OF DEFENDANT FAMILY DOLLAR STORES OF

       OHIO, INC.



                       SUMMARY JUDGMENT STANDARD OF REVIEW

       {¶9}   Summary judgment proceedings present the appellate court with the unique

opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v.

The Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). As such, this
Stark County, Case No. 2017CA00149                                                           4

Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

       {¶10} Civ.R. 56 provides summary judgment may be granted only after the trial

court determines: 1) no genuine issues as to any material fact remain to be litigated; 2)

the moving party is entitled to judgment as a matter of law; and 3) it appears from the

evidence that reasonable minds can come to but one conclusion and viewing such

evidence most strongly in favor of the party against whom the motion for summary

judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc.,

50 Ohio St.2d 317, 364 N.E.2d 267 (1977).

       {¶11} It is well established the party seeking summary judgment bears the burden

of demonstrating that no issues of material fact exist for trial. Celotex Corp. v. Catrett, 477

U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1987). The standard for granting

summary judgment is delineated in Dresher v. Burt, 75 Ohio St.3d 280 at 293, 662 N.E.2d

264 (1996): “ * * * a party seeking summary judgment, on the ground that the nonmoving

party cannot prove its case, bears the initial burden of informing the trial court of the basis

for the motion, and identifying those portions of the record that demonstrate the absence

of a genuine issue of material fact on the essential element(s) of the nonmoving party's

claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by

making a conclusory assertion the nonmoving party has no evidence to prove its case.

Rather, the moving party must be able to specifically point to some evidence of the type

listed in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has no

evidence to support the nonmoving party's claims. If the moving party fails to satisfy its

initial burden, the motion for summary judgment must be denied. However, if the moving
Stark County, Case No. 2017CA00149                                                           5


party has satisfied its initial burden, the nonmoving party then has a reciprocal burden

outlined in Civ.R. 56(E) to set forth specific facts showing there is a genuine issue for trial

and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be

entered against the nonmoving party.” The record on summary judgment must be viewed

in the light most favorable to the opposing party. Williams v. First United Church of Christ,

37 Ohio St.2d 150, 309 N.E.2d 924 (1974).

       {¶12} In order to establish a claim for negligence, a plaintiff must show: (1) a duty

on the part of defendant to protect the plaintiff from injury; (2) a breach of that duty; and

(3) an injury proximately resulting from the breach. Jeffers v. Olexo, 43 Ohio St.3d 140,

142, 539 N.E.2d 614 (1989).

       {¶13} In a premises liability case, the relationship between the owner or occupier

of the premises and the injured party determines the duty owed. Gladon v. Greater

Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315, 1996–Ohio–137, 662 N.E.2d

287; Shump v. First Continental–Robinwood Assocs., 71 Ohio St.3d 414, 417, 644 N.E.2d

291 (1994). Ohio adheres to the common-law classifications of invitee, licensee, and

trespasser in cases of premises liability. Shump, supra; Boydston v. Norfolk S. Corp., 73

Ohio App.3d 727, 733, 598 N.E.2d 171, 175 (4th Dist.1991).

       {¶14} The parties do not dispute McCarthy was a business invitee on May 29,

2015, when she entered the Family Dollar Store in Alliance, Ohio, to make a purchase.

An invitee is defined as a person who rightfully enters and remains on the premises of

another at the express or implied invitation of the owner and for a purpose beneficial to

the owner. Broka v. Cornell's IGA Foodliner Inc., 5th Dist. No. 12CA100, 2013–Ohio–

2506, ¶ 20 citing Gladon, supra at 315, 662 N.E.2d 287.
Stark County, Case No. 2017CA00149                                                   6


      {¶15} The business owner is not an insurer of the customer's safety, but the

business owner does owe the business invitee a duty of ordinary care to maintain the

premises in a reasonably safe condition and to warn of hidden dangers. However, a

business owner owes no duty to protect an invitee from dangers that are known to the

invitee or are so obvious and apparent to the invitee he or she may be reasonably

expected to discover them and protect him or her against them. Sidle v. Humphrey, 13

Ohio St.2d 45, 48, 233 N.E.2d 589 (1968). In other words, a premises owner owes no

duty to persons entering the premises regarding dangers which are open and obvious.

Armstrong v. Best Buy Company, Inc., 99 Ohio St.3d 79, 2003–Ohio–2573, 788 N.E.2d

1088, paragraph 5 of the syllabus (Citation omitted.) The rationale of the open and

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

warning, so that owners reasonably may expect their invitees to discover the hazard and

take appropriate measures to protect themselves against it. Simmers v. Bentley Constr.

Co., 64 Ohio St.3d 642, 644, 597 N.E.2d 504 (1992).

      {¶16} In its July 31, 2017 Judgment Entry, granting summary judgment in favor of

Family Dollar, the trial court found the window was open and obvious; therefore, Family

Dollar did not owe a duty to McCarthy. We disagree as we find reasonable minds could

come to different conclusions as to whether the window was an open and obvious danger.

Our reasons follow.

      {¶17} During her deposition, McCarthy testified:



             Q. Now, let’s talk about what you recall about that window that day

      that’s similar or different from what we see here in Exhibit 3. * * *
Stark County, Case No. 2017CA00149                                                       7


           A. Okay. For one thing, to begin with, I notice that this mat, that floor

     mat was not there.

           Q. You are referring to a black mat in front of the out door?

           A. Black mat. Yes, that was facing toward the window. Because I

     was walking that mat, and it was – I thought I was heading toward the door,

     that the door was out, because I was following the direction of the mat was

     going in. And it – instead of going toward the door, it was going toward the

     window.

           ***

           Q. Let me ask you this: After you check out, and you have your purse

     and you have your plates, and as you are walking towards the exit, did there

     come a time when you looked toward the exit?

           A. I did look, and it just looked – everything was so clear and bright

     that I assumed I was headed to toward the door.

           Q. Okay. As you walk into the window, where were you looking at

     that moment?

           A. Actually, when I hit the window, the first thing I tried to think of was

     how to catch myself, because I knew I was going to fall backward. There

     was nothing around me that I could grab onto, and I just went down.

           ***

           I mean, there weren’t any – any signs or anything on that window

     whatsoever. Nothing. It was just – it was just very clear, and I assumed that
Stark County, Case No. 2017CA00149                                                    8


     that – walking the way I walked on the mat toward the – what I thought was

     the door.

            Q. Were you looking at the mat as you were walking toward the exit?

            A. I saw – I saw the mat that I was walking on. I started following it.

     And then I looked up.

            Q. Okay.      So you recall looking up right before you struck the

     window?

            A. Well, actually, I guess it was too late when I looked up, because I

     hit it right away.

            ***

            No. But it – I thought they had the door open. It looked like the door

     was open. And that’s why I thought, according to the way I was walking, I

     assumed I was going that direction. But then when I followed the mat, it led

     me to the window.

            Q. It sounds like what you are saying is you thought the window was

     an opening?

            ***

            A. Yes, because it was so clear and so bright that you couldn’t – it

     was like they had just put a new window and scrubbed it up and it didn’t –

     you know, it just looked like an open area.

     Deposition of Mary McCarthy at 16-17, 20-21, 23-24.
Stark County, Case No. 2017CA00149                                                     9


      {¶18} In addition, Appellant Paul McCarthy testified he went to Family Dollar with

Earl Eckert later the same day to retrieve McCarthy’s vehicle. They spoke with Marissa

DiFlour, the store manager, who admitted another customer had walked into the same

window that same day, but prior to McCarthy’s accident. In his deposition, Appellant Paul

McCarthy recalled:




             Q. You did come to the Family Dollar later – later that day, I think?

             A. Yes.

             Q. Yes. Okay. What was the reason for coming to the store later that

      day?

             A. To pick up the car that Mary had left there.

             Q. Did you go inside the store?

             A. Yes.

             Q. Did you speak with anyone?

             A. I asked for the manager, and the girl raised her hand and said she

      was the manager.

             ***

             Q. What did you say to her?

             A. I just asked her if, you know, the – my wife had been in here and

      had an accident. And she remembered her being there. She told me that

      someone prior to Mary running into the window, also it had happened. After

      Mary had run into it, she put something on the window.

             Q. Did you see something on the window?
Stark County, Case No. 2017CA00149                                                     10


             A. When I came in, yeah.

             ***

             Q. And the manager told you something about a prior incident?

             A. Yes, someone had run into the window prior to Mary, and then

      after Mary ran into it and, obviously, had her problem, she said she put

      something up on the window.

             Q. Did she tell you if that – for that prior incident, did she tell you

      anything more about it?

             A. No.

             Q. Did she say if it was that same day?

             A. Yeah, right.

             Q. She said it was earlier in the day?

             A. I don’t know if she said earlier in the day. It sounded like right

      before Mary. So it sounded like it was pretty recent.

             Q. Do you know if it was the same day or not?

             A. Yeah, she said it was the same day. That’s why she put up a sign

      after Mary had fallen, yes.

      Deposition of Paul McCarthy at 8-11.




      {¶19} The trial court noted several facts which supported its decision the window

was an open and obvious danger. First, the exit door, which was located next to the

window, was labeled, “OUT”, and was equipped with both vertical and horizontal

handlebars which could be used to push open the door to exit the store. Next, the exit
Stark County, Case No. 2017CA00149                                                     11


door and the window were observable to a reasonable person. Further, the exit door was

not blocked on the date of the incident. Lastly, McCarthy had used the exit door on

several previous occasions as she was a frequent customer of this particular store. The

trial court added McCarthy testified she recalled seeing the “IN” and “OUT” stickers on

the doors when she entered the store, and admitted she did not pay attention to the

stickers when she exited the store.

      {¶20} While these facts standing alone support the trial court’s finding the window

was an open and obvious danger, we find Appellants presented reciprocal evidence

which raises a genuine issue of material fact, and we find reasonable minds could come

to differing conclusions as to whether the window was and open and obvious danger.

      {¶21} As McCarthy exited the store after making her purchase, she traversed

along a black mat which she believed led to the exit door. McCarthy testified it was a

“bright and clear day” and thought she was walking towards an open area. The window

lacked any signage distinguishing it from the entrance and exit doors. We find these facts

coupled with a prior incident which occurred on the same day and involved a customer

walking into the same window create a genuine issue of material fact as to whether the

hazard was open and obvious.

      {¶22} Appellants’ sole assignment of error is sustained.
Stark County, Case No. 2017CA00149                                                      12


      {¶23} The judgment of the Stark County Court of Common Pleas is reversed and

the matter remanded for further proceedings consistent with this Opinion and the law.


By: Hoffman, J.

Gwin, P.J. and

Wise, Earle, J. concur
