       [Cite as Kohler v. Camp Runinmuck, 2019-Ohio-5276.]




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


Denise Kohler                                         Court of Appeals No. OT-19-016

       Appellant                                      Trial Court No. 17CV186

v.

Camp Runinmuck, et al.                                DECISION AND JUDGMENT

       Appellees                                      Decided: December 20, 2019

                                             *****

       Richard L. Demsey, Justin D. Gould, Paul W. Flowers, and
       Louis E. Grube, for appellant.

       Brian A. Newberg, for appellees.

                                             *****

       ZMUDA, J.

                                         I. Introduction

       {¶ 1} Appellant, Denise Kohler,1 appeals the judgment of the Ottawa County

Court of Common Pleas, which granted summary judgment to appellees, Camp



1
 Appellant was married after she filed this action, resulting in a change of her name to
Denise Trosin.
Runinmuck, The New Generation, Inc., Camp Runinmuck Campers Association, and

Camp Runinmuck Lodge, on appellant’s premises liability claim. Because we find that

the trial court properly concluded that appellant’s claim was precluded under the open

and obvious doctrine, we affirm.

                         A. Facts and Procedural Background

       {¶ 2} The incident that gave rise to this premises liability action took place on

June 6, 2015. On that date, appellant visited a restaurant at Camp Runinmuck in

Marblehead, Ohio. Appellant was accompanied by her friend, Mario Bandiera. The two

arrived at approximately 6 p.m. Upon arrival, Mario dropped appellant at the entrance

and proceeded to park his vehicle. The two ate dinner together, and departed

approximately three to three and one-half hours later. Appellant consumed one glass of

wine during dinner.

       {¶ 3} After exiting the restaurant, appellant and Mario proceeded to Mario’s

vehicle. Wanting to use the restroom before leaving, appellant returned to the restaurant.

According to appellant it was “fully dark” outside by the time she left the restaurant.

Appellant’s mobile phone was equipped with a flashlight function with which appellant

was familiar, but appellant indicated that she did not feel the need to use it on the night of

the incident because the parking lot was adequately lit. Appellant indicated during her

deposition that she was not concerned with the lighting in and around the area where the

cart was located. Additionally, appellant responded in the affirmative when asked

whether she believed that the area where the cart was located was “sufficiently lit for



2.
[her] to be able to safely proceed.” Later on, appellant stated that “[t]here was no

problem” with respect to the lighting conditions in the area where the cart was located,

but she stated that the exterior light was shining into her eyes as she walked toward the

restaurant.

        {¶ 4} On her way to Mario’s vehicle, appellant passed a large stationary cart that

was located in the parking lot outside of the restaurant. The cart was approximately five

feet long and four feet wide. The cart was carrying an orange and black bin that took up

much of the surface area of the cart. However, the edges of the cart protruded out from

the bin on each side. The cart surface was gray with a red rim along the edge on every

side. Although she acknowledged walking past the cart, appellant stated that she did not

see the cart, but she admitted that would have been able to see the cart had she looked in

its direction.

        {¶ 5} On her way back to the restaurant, appellant struck her left shin on the

corner of the cart, causing her to fall. Appellant testified that she was looking toward the

door at the time of her fall. Appellant acknowledged that there were no pedestrians or

automobile traffic in the area at the time, and that her attention was not diverted prior to

the fall.

        {¶ 6} After striking the cart with her shin, appellant reached out her left arm in

order to break her fall. As a result of her efforts, appellant suffered a fracture to her left

elbow, causing severe pain and leading to the tearing of her cartilage in that joint.

Appellant’s injuries ultimately forced her to undergo outpatient surgery and physical

therapy.

3.
       {¶ 7} Almost two years after her fall at Camp Runinmuck, appellant filed a

complaint with the trial court on June 5, 2017, in which she asserted a premises liability

claim against appellees, Camp Runinmuck, The New Generation, Inc., Camp Runinmuck

Campers Association, and Camp Runinmuck Lodge. On June 30, 2017, appellees filed

their answer, in which they generally denied the allegations raised in appellant’s

complaint and asserted several affirmative defenses. Of particular relevance to this

appeal, appellees asserted that the condition complained of in appellant’s complaint (i.e.

the cart) was open and obvious.

       {¶ 8} Following discovery, appellees filed their motion for summary judgment on

October 3, 2018. In their motion, appellees argued that they had no duty to appellant

with respect to the cart on which appellant struck her shin, because the cart was an open

and obvious hazard. Further, appellees urged that there were no attendant circumstances

that would exclude the application of the open and obvious doctrine to this case.

       {¶ 9} As to appellant’s attendant circumstances argument, appellees denied that

the cart and the pavement blended together, noting that the trim on the cart and the large

brown and orange bin on top of the cart contrasted with the color of the underlying

pavement. Additionally, appellees insisted that the light that was allegedly shining in

appellant’s eye on the night of the fall did not constitute an attendant circumstance that

would preclude the application of the open and obvious doctrine.

       {¶ 10} On December 14, 2018, appellant filed her brief in opposition to appellees’

motion for summary judgment. In her brief, appellant contended that the cart was not an



4.
open and obvious hazard. In support, appellant pointed to appellees’ customary practice

of placing large orange cones around the cart, a practice that appellant argued was

demonstrative of appellees’ recognition that the cart was not inherently open and

obvious. Alternatively, appellant argued that there were attendant circumstances in play

in this case that would negate the application of the open and obvious doctrine.

Specifically, appellant identified two attendant circumstances: (1) the color of the cart

blended in with the surrounding pavement; and (2) a light shining in appellant’s eyes as

she walked toward the restaurant.

       {¶ 11} In their December 31, 2018 reply to appellant’s brief in opposition,

appellees stated that the cart was large (five feet long and four feet wide), it was “covered

in orange or red trim,” and it was situated in plain view. Therefore, appellees argued that

the cart was open and obvious.

       {¶ 12} On January 11, 2019, appellant filed a sur-reply in which she reasserted her

claim that the cart was not open and obvious and that the presence of attendant

circumstances (blending with the pavement and a light shining in her eyes) barred

appellees’ reliance on the open and obvious doctrine.

       {¶ 13} Upon consideration of the foregoing arguments, the trial court issued its

decision on March 27, 2019. In the decision, the trial court found that appellant “testified

that she was able to see the cart and bin had she looked, there was adequate lighting and

there was nothing distracting her attention from the cart/bin.” Due to this testimony, the

trial court determined that appellees were entitled to summary judgment on appellant’s

premises liability claim. Thereafter, appellant entered a timely notice of appeal.

5.
                                 B. Assignments of Error

       {¶ 14} On appeal, appellant the following assignment of error:

              The trial judge erred, as a matter of law, by granting summary

       judgment upon plaintiff-appellant’s premises liability claim.

                                        II. Analysis

       {¶ 15} In her sole assignment of error, appellant argues that the trial court erred in

granting summary judgment in favor of appellees on her premises liability claim.

       {¶ 16} Premises liability is a form of negligence, which generally requires the

plaintiff to demonstrate that the defendant owes a duty to him or her the breach of which

proximately resulted in the plaintiff’s injury. Mussivand v. David, 45 Ohio St.3d 314,

318, 544 N.E.2d 265 (1989). The duty that an owner or occupier of premises owes to one

who is injured on those premises is governed by the relationship between the parties.

Light v. Ohio University, 28 Ohio St.3d 66, 67, 502 N.E.2d 611 (1986). Persons who

come onto premises by invitation, express or implied, for purposes beneficial to the

owner or occupier are considered business invitees. Id. at 68. In this case, the parties

agree that appellant is a business invitee.

       {¶ 17} The duty of a premises owner to a business invitee is one of ordinary care

in maintaining the premises in a reasonably safe condition and to warn an invitee of latent

or hidden dangers. Brown v. Helzberg Diamonds, 168 Ohio App.3d 438, 2006-Ohio-

4297, 860 N.E.2d 803, ¶ 13 (6th Dist.); Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio

St.3d 203, 480 N.E.2d 474 (1985). However, the owner of premises is not an insurer of



6.
the customer’s safety and is under no duty to protect business invitees from dangers that

are “known to such invitee or are so obvious and apparent to such invitee that he may

reasonably be expected to discover them and protect himself against them.” Id. at 203-

204, quoting Sidle v. Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589 (1968), paragraph one

of the syllabus.

       {¶ 18} Here, the trial court found that appellees owed no duty to appellant with

respect to the cart, because the cart was an open and obvious hazard. The open and

obvious doctrine provides that owners do not owe a duty to persons entering their

premises regarding 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, ¶ 14, citing Sidle at paragraph one

of the syllabus. The rationale underlying this doctrine is “that the open and obvious

nature of the hazard itself serves 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.” Simmers v. Bentley Constr. Co., 64 Ohio

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

       {¶ 19} Contrary to the findings of the trial court, appellant contends that the cart

on which she struck her left shin was not an open and obvious hazard. In her brief,

appellant argues that “a jury could easily conclude that a reasonable person acting with

ordinary care under the circumstances would not have discovered the protruding edge of

the recycling cart before tripping over it.” According to appellant, it was dark at the time

of the incident and the building cast a shadow over the area where the cart was located,

and the gray platform of the cart and its red edge blended in with the pavement below.

7.
       {¶ 20} In response, appellees assert that the cart was observable and, as such, was

an open and obvious hazard. In support of their argument, appellees note that the cart

was five feet long and four feet wide, and contained a large bin atop the cart that was

orange and easily observable. Appellees cite numerous cases involving hazards that were

deemed to be open and obvious despite being smaller than the cart and bin in this case.

       {¶ 21} While not dispositive in this case, the size of the cart is indeed a factor in

assessing whether the cart was open and obvious. Ellington v. JCTH Holdings, Inc., 7th

Dist. Mahoning No. 14 MA 64, 2015-Ohio-480, ¶ 29. According to the pictures

submitted as part of the record in this case, the cart is positioned in the open lot in front of

the restaurant, and is not hidden or concealed in any manner. Given the cart’s size and

location, the open and obvious doctrine would unquestionably apply in this case if the

incident would have occurred during the daytime.

       {¶ 22} Therefore, the only question is whether the lack of daylight that existed at

the time of the incident renders the open and obvious doctrine inapplicable. On the

darkness issue, courts have held that “darkness is an open and obvious condition and

under Ohio law, one may not disregard darkness.” Kirksey v. Summit Cty. Parking

Garage, 9th Dist. Summit No. Civ.A. 22755, 2005-Ohio-6742, ¶ 12, citing Jeswald v.

Hutt, 15 Ohio St.2d 224, 227, 239 N.E.2d 37 (1968). Therefore, the lack of lighting does

not, by itself, alter the cart’s status as open and obvious. Moreover, appellant

acknowledged during her deposition that the area in front of the restaurant was

sufficiently lit, such that she felt no need to use the flashlight on her phone to illuminate

the path ahead of her.

8.
       {¶ 23} Appellant claims that the cart on which the bin rested had a gray surface

that blended with the pavement below. Concerning appellant’s blending argument, we

have previously held that “[w]hen a surface and the object on which a person falls are the

same color, a genuine issue of material fact exists as to whether the object is open and

obvious.” Lovejoy v. Sears, Roebuck & Co., 6th Dist. Lucas No. L-98-1025, 1998 WL

351876, * 4 (June 19, 1998). Further, in Demock v. D.C. Entertainment & Catering, Inc.,

6th Dist. Wood No. WD-03-087, 2004-Ohio-2778, we found that issues of fact existed to

preclude an open and obvious finding as a matter law where the plaintiff fell in an unlit

interior stairwell that was poorly designed and shrouded in darkness such that the

plaintiff could not differentiate the floor from the steps.

       {¶ 24} Unlike the facts in Lovejoy and Demock, the record in this case

demonstrates that the trim around the edge of the cart was red, and therefore the edge of

the cart contrasted with the gray pavement. In his deposition, Mario affirmed that the

lighting was sufficient to permit him to ascertain the color of the bin and distinguish

between colors. Moreover, appellant acknowledged that the area where the cart was

located was not so dimly lit that she could not observe the cart. Indeed, appellant

acknowledged during her deposition that she did, in fact, observe the bin, but failed to

take note of the protrusion of the cart underneath the bin. “The bench mark for the courts

is not whether the person saw the object or danger, but whether the object or danger was

observable.” Haymond v. BP Am., 8th Dist. Cuyahoga No. 86733, 2006-Ohio-2732, ¶

16. On these facts, we find that the cart was observable and was therefore an open and

obvious hazard.

9.
       {¶ 25} Alternatively, appellant insists that there were attendant circumstances

present at the time of her fall that would preclude the application of the open and obvious

doctrine. Appellant claims that the light that was shining off the building was distracting

her because it was shining into her eyes.

              An attendant circumstance is a factor that contributes to the fall and

       is beyond the injured person’s control. The phrase refers to all

       circumstances surrounding the event, such as time and place, the

       environment or background of the event, and the conditions normally

       existing that would unreasonably increase the normal risk of a harmful

       result of the event. An “attendant circumstance” has also been defined to

       include any distraction that would come to the attention of a pedestrian in

       the same circumstances and reduce the degree of care an ordinary person

       would exercise at the time. (Citations omitted.)

Jackson v. Pike Cty. Bd. of Commrs., 4th Dist. Pike No. 0CA805, 2010-Ohio-

4875, ¶ 21.

       {¶ 26} In her deposition testimony, appellant testified that she would have seen the

cart and bin had she looked. Appellant also acknowledged that there were no pedestrians

or automobile traffic in the area at the time, and that her attention was not diverted prior

to the fall. Having acknowledged that she was not distracted at the time of the incident,

we find no merit to appellant’s reliance upon the claim that the outdoor lighting

constituted an attendant circumstance merely because it was allegedly shining into her



10.
eyes. Appellant acknowledged that she observed the bin that was resting on the cart

notwithstanding the lighting conditions. Having observed the bin, it is clear the light

shining into appellant’s eyes does not constitute an attendant circumstance which

prevented her from being able to see the cart underneath the bin.

       {¶ 27} In sum, we find that the record supports the trial court’s determination that

the cart upon which appellant struck her shin was open and obvious. Further, the record

contradicts appellant’s assertion that she was distracted by attendant circumstances such

that the open and obvious nature of the cart should be ignored.

       {¶ 28} While parties may have a theoretical argument over the objective question

as to whether a hazard is open and obvious, here we must apply our analysis within the

constraints of appellant’s testimony as to what she did or did not do, what she saw or did

not see, and what she was able to see had she looked as opposed to what she was not able

to see. In doing so, we find that the trial court did not err when it granted appellees’

motion for summary judgment.

       {¶ 29} Accordingly, appellant’s sole assignment of error is not well-taken.

                                      III. Conclusion

       {¶ 30} In light of the foregoing, the judgment of the Ottawa County Court of

Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R. 24.



                                                                        Judgment affirmed.



11.
                                                               OT-19-016
                                                               Kohler v. Camp Runinmuck




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



Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Gene A. Zmuda, 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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