[Cite as Jacobsen v. Coon Restoration & Sealants, Inc., 2011-Ohio-3563.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                             JUDGES:
CINDY AND NILES JACOBSEN                             :       Hon. W. Scott Gwin, P.J.
                                                     :       Hon. John W. Wise, J.
                     Plaintiffs-Appellants           :       Hon. Patricia A. Delaney, J.
                                                     :
-vs-                                                 :
                                                     :       Case No. 2011-CA-00001
COON RESTORATION &                                   :
SEALANTS, INC. AND                                   :
NORTHMARK, INC.                                      :       OPINION

                  Defendants-Appellees




CHARACTER OF PROCEEDING:                                 Civil appeal from the Stark County Court of
                                                         Common Pleas, Case No. 2010CV01468

JUDGMENT:                                                Reversed and Remanded


DATE OF JUDGMENT ENTRY:                                  July 18, 2011

APPEARANCES:

For Plaintiffs-Appellants                                For Defendants-Appellees

JOHN J. REAGAN                                           CRAIG G. PELINI
MARK C. LINDSEY                                          Bretton Commons - Ste. 400
3412 W. Market Street                                    8040 Cleveland Avenue N.W.
Akron, OH 44333                                          North Canton, OH 44720
[Cite as Jacobsen v. Coon Restoration & Sealants, Inc., 2011-Ohio-3563.]


Gwin, P.J.

        {¶1}    Plaintiffs-appellants Cindy and Niles Jacobsen appeal a summary

judgment of the Court of Common Pleas of Stark County, Ohio, entered in favor of

defendant-appellee Northmark, Inc. on appellants’ premises liability and lost consortium

claims. Appellants voluntarily dismissed their claims against defendant Coon

Restoration & Sealants Inc. and it is not a party to this appeal.

        {¶2}      Appellants assign two errors to the trial court:

        {¶3}    “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

IN FAVOR OF THE DEFENDANT, NORTHMARK, INC. IN FINDING THAT THE

CONDITION OF THE BROKEN METAL SIGN POST WAS OPEN AND OBVIOUS.

        {¶4}    “II. THE TRIAL COURT ERRED IN FINDING THAT NO GENUINE

ISSUES       OF     MATERIAL         FACT      EXISTED        AS     TO    WHETHER   ATTENDANT

CIRCUMSTANCES WERE PRESENT WHEN PLAINTIFF CINDY JACOBSEN FELL,

WHICH WOULD NEGATE THE OPEN AND OBVIOUS DOCTRINE.”

        {¶5}    The issue in this case is whether the court properly granted summary

judgment in finding the condition of the parking lot was open and obvious. For the

reasons that follow, we find the court erred.

        {¶6}    The record indicates appellants went to a pizza shop in Louisville, Stark

County, Ohio, to pick up a pizza they had ordered. Immediately adjacent to the pizza

shop is a gas station, and the parking lots of the two businesses are separated only by

parking bumpers.         Appellants parked in the gas station’s parking lot, and appellant

Cindy Jacobsen walked into the pizza shop to get their pizza. As she returned to her

vehicle, she tripped over a broken metal sign post protruding from a small area of dry,
Stark County, Case No. 2011-CA-00001                                                   3


dead grass in the parking lot. Appellant testified she was holding the pizza box in front

of her and could not see the ground directly in front of her. Appellants alleged Cindy

Jacobsen fell and was seriously injured.

       {¶7}   The trial court found it was questionable whether appellee owned the area

in which appellant fell, but determined summary judgment was appropriate nonetheless.

The owner of the pizza shop testified she rented the premises from appellee. She had

notified appellee that at some time the preceding winter, a snow plow had knocked over

and broken a handicapped parking sign in the parking lot. Apparently, appellee had

removed the sign and a portion of the metal post, but a small portion was left.

       {¶8}   The trial court found the danger on the premises was open and obvious,

and thus, appellee owed no duty of care to warn appellants of the condition. The court

found although the metal stump was located in dead grass, the grass did not conceal it.

The court found the stump sticking out of the ground was a different color than the

surrounding area. The trial court also found there were no attendant circumstances

present to create a question of fact regarding whether the condition was open and

obvious.

       {¶9}   The court found appellant Cindy Jacobsen chose to carry the pizza box in

such a manner that prevented her from watching where she was walking, and because

this was within Jacobsen’s control, it did not constitute an attendant circumstance. The

court also found the dead grass surrounding the metal stump did not prevent appellant

from observing the open and obvious danger, because she testified the grass was

visible to her after she had fallen.
Stark County, Case No. 2011-CA-00001                                                    4


      {¶10} Civ. R. 56 states in pertinent part:

      {¶11} “Summary judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence, and written stipulations of fact, if any, timely filed in the action, show that

there is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law. No evidence or stipulation may be considered except as

stated in this rule. A summary judgment shall not be rendered unless it appears from

the evidence or stipulation, and only from the evidence or stipulation, that reasonable

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

against whom the motion for summary judgment is made, that party being entitled to

have the evidence or stipulation construed most strongly in the party's favor. A summary

judgment, interlocutory in character, may be rendered on the issue of liability alone

although there is a genuine issue as to the amount of damages.”

      {¶12} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts, Houndshell v. American States Insurance Company (1981), 67 Ohio

St. 2d 427. The court may not resolve ambiguities in the evidence presented, Inland

Refuse Transfer Company v. Browning-Ferris Industries of Ohio, Inc. (1984), 15 Ohio

St. 3d 321. A fact is material if it affects the outcome of the case under the applicable

substantive law, Russell v. Interim Personnel, Inc. (1999), 135 Ohio App. 3d 301.

      {¶13} When reviewing a trial court’s decision to grant summary judgment, an

appellate court applies the same standard used by the trial court, Smiddy v. The
Stark County, Case No. 2011-CA-00001                                                    5

Wedding Party, Inc. (1987), 30 Ohio St. 3d 35. This means we review the matter de

novo, Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186.

      {¶14} The party moving for summary judgment bears the initial burden of

informing the trial court of the basis of the motion and identifying the portions of the

record which demonstrate the absence of a genuine issue of fact on a material element

of the non-moving party’s claim, Drescher v. Burt (1996), 75 Ohio St. 3d 280. Once the

moving party meets its initial burden, the burden shifts to the non-moving party to set

forth specific facts demonstrating a genuine issue of material fact does exist, Id. The

non-moving party may not rest upon the allegations and denials in the pleadings, but

instead must submit some evidentiary material showing a genuine dispute over material

facts, Henkle v. Henkle (1991), 75 Ohio App. 3d 732.

      {¶15} The concept of open and obvious can be a confusing one. In Armstrong

v. Best Buy Company, Inc., 99 Ohio St. 3d 79, 2003-Ohio-2573, 788 N.E. 2d 1088, the

Ohio Supreme Court refused to abrogate the open and obvious doctrine as a complete

bar to a plaintiff’s recovery. The Supreme Court found a premises owner owes no duty

to persons entering the premises regarding dangers that open and obvious. Armstrong

at paragraph 5, citing Sidle v. Humphrey (1968), 13 Ohio St. 2d 45,233 N.E. 2d 589,

paragraph 1 of the syllabus by the court.

      {¶16} The open and obvious doctrine addresses only the question of duty,

without analyzing the actions of the landowner or of the plaintiff.    The Supreme Court

explained the open and obvious nature of the hazard itself is the warning, and an owner

or occupier may reasonably expect persons entering the premises will discover the

dangers and take appropriate measures to protect themselves.          Armstrong, paragraph
Stark County, Case No. 2011-CA-00001                                                     6

5, citing Simmers v. Bentley Construction Company (1992), 64 Ohio St. 3d. 642, 644,

597 N.E. 2d 504.

      {¶17} This contrasts with an owner or occupier’s affirmative duty to its business

invitees to exercise ordinary care in maintaining its premises in a reasonably safe

condition, and to warn the invitees of hidden or latent dangers. Id., citing Pascal v. Rite

Aid Pharmacy, Inc. (1985), 18 Ohio St. 3d 203, 480 N.E. 2d 474 and Jackson v. Kings

Island (1979), 58 Ohio St. 2d 357, 390 N.E. 2d 810.

      {¶18} The Supreme Court in Armstrong reaffirmed the open and obvious

doctrine, directing courts to apply the rule by focusing solely on the issue of duty. A

court should consider the nature of the condition itself as opposed to the plaintiff’s

conduct in encountering it, and the fact that the plaintiff may have been unreasonable in

choosing to encounter the danger is not what relieves a property owner of liability.

Armstrong at paragraph 13, citations deleted. The Ohio Supreme Court explained:

“***the open-and-obvious doctrine is not concerned with causation but rather stems

from the landowner's duty to persons injured on his or her property. By failing to

recognize the distinction between duty and proximate cause, we believe *** courts have

prematurely reached the issues of fault and causation.” Armstrong at paragraph 12.

      {¶19} This means the question of whether a given hazard is open and obvious is

an objective one, requiring a court to determine whether a reasonable invitee exercising

ordinary care would have been able to observe and appreciate the dangerous condition.

The question of whether something is open and obvious cannot always be decided as a

matter of law. Collins v. McDonald’s Corporation, Cuyahoga App. No. 83282, 2004-

Ohio-4074, citing Texler v. D. O. Summers Cleaners & Laundry Co., 81 Ohio St. 3d 677,
Stark County, Case No. 2011-CA-00001                                                   7


1998-Ohio-602.    Attendant circumstances surrounding an incident may create a

material issue of fact as to whether the danger was open and obvious. Louderback v.

McDonald’s Restaurant, Scioto App. No. 04CA2981, 2005-Ohio- 3926.

      {¶20} The analysis of attendant circumstances also uses an objective test, and a

court should not consider the particular actions of the parties in the case. Attendant

circumstances are distractions that divert the attention of a reasonable person and

reduce the amount of care the person would reasonably exercise. McGuire v. Sears

Roebuck & Co. (1996), 18 Ohio App. 3d 494, 693 N.E. 2d 807.                     Attendant

circumstances are circumstances that significantly enhance the danger of the defect or

hazard and contribute to the injury. Stockhauser v. Arch Diocese of Cincinnati (1994),

97 Ohio App. 3d 29, 646 N.E. 2d 198. Attendant circumstances include time, place,

surroundings, and other conditions that unreasonably increase a typical risk.    Cash v.

Cincinnati (1981), 66 Ohio St. 2d 319, 421 N.E. 2d 1275.

                                            I & II

      {¶21} With the above in mind, we find the trial court erred in entering summary

judgment, because we find reasonable minds could differ on the question of whether the

condition was open and obvious.

      {¶22} Here, the trial court improperly focused on appellant’s actions. The court

found appellant had chosen to carry the pizza box in such a manner that she could not

watch where she was walking. We find this is not relevant to determining whether the

hazard was open and obvious. Neither is the fact appellants may have chosen to park

their vehicle farther than necessary from the pizza shop door. The place appellants

parked and the manner in which appellant chose to carry her pizza may become issues
Stark County, Case No. 2011-CA-00001                                                     8


for comparative negligence, but these facts are not relevant in determining whether a

hazard is open and obvious. The fact that a plaintiff may have been unreasonable in

choosing to encounter the hazard is not what relieves the property owner of liability in

an open and obvious situation. Armstrong at paragraph 13, citations deleted.

       {¶23} However, the fact that patrons might generally carry pizzas across the

parking lot may be considered an attendant circumstance.

       {¶24} The court also found after the fact appellant was able to observe the metal

stump and was able to see the grass and the metal stump in the photograph appellants

had taken after she fell. This is not necessarily determinative of whether the stump was

open and obvious.

       {¶25} The Tenth District Court of Appeals opined, “[t]here exist few substances

that are completely invisible when one knows to look for it and is looking directly at it.”

Szerszen v. Summit Chase Condominiums, Franklin App. No. 09AP-1183, 2010–Ohio–

4518 at paragraph 16. In Middleton v. Meijer, Inc. Montgomery App No. 23789, 2010–

Ohio–3244, Judge Grady, in concurring, found the fact a puddle of water on a store

floor was observable on subsequent examination may be determinative of whether the

plaintiff should have seen it, but not whether it was as open and obvious a matter of law.

Id at paragraph 12.

       {¶26} In Kraft, v. Dolgencorp Inc. Mahoning App. No. 06-MA-69, 2007-Ohio-

4997, the plaintiff slipped in a puddle of water on a store floor. The Seventh District

Court of Appeals noted factors in an open and obvious analysis can be whether store

patrons had sufficient advance opportunity to perceive the hazard before encountering
Stark County, Case No. 2011-CA-00001                                              9


it, and whether a reasonable person would have some expectation of encountering such

a hazard.

      {¶27} We find reasonable minds could differ regarding whether the metal stump

in the parking lot was open and obvious, and whether a reasonable person under the

prevailing attendant circumstances would have expected and discovered the danger,

and taken precautions to avoid it.

      {¶28} Each of the assignments of error is sustained.

      {¶29} For the foregoing reasons, the judgment of the Court of Common Pleas of

Stark County, Ohio, is reversed, and the cause is remanded to the court for further

proceedings in accord with law and consistent with this opinion.

By: Gwin, P.J., and

Delaney, J., concur;

Wise, J., dissents

                                             _________________________________
                                             HON. W. SCOTT GWIN

                                             _________________________________
                                             HON. JOHN W. WISE

                                             _________________________________
WSG:clw 0614                                 HON. PATRICIA A. DELANEY
Stark County, Case No. 2011-CA-00001                                                   10

Wise, J. dissenting

      {¶30} I respectfully dissent from the majority decision that the trial court herein

improperly focused on appellant’s actions.

      {¶31} I find that the trial court conducted a proper analysis under Armstrong v.

Best Buy Co., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, finding that the

metal stake was sticking out of the ground, that it was not concealed by the dead grass

located nearby, and that it was a different color than the surrounding area. The trial

court determined that the piece of metal was clearly discoverable and readily

observable, and concluded that the danger in the case sub judice was open and

obvious.

      {¶32} The trial court then went on to address whether any “attendant

circumstances” negated the application of the open and obvious doctrine. An attendant

circumstance is a factor that contributes to the fall and is beyond the injured person's

control. See Backus v. Giant Eagle, Inc. (1996), 115 Ohio App.3d 155, 158, 684 N.E.2d

1273. Attendant circumstances do not include the individual's activity at the moment of

the fall, unless the individual's attention was diverted by an unusual circumstance of the

property owner's making. McGuire v. Sears, Roebuck & Co. (1996), 118 Ohio App.3d

494, 498, 693 N.E.2d 807. Based on these cases, the trial court found that the fact that

appellant was carrying a pizza box at the time she tripped and fell could not be

considered an “attendant circumstance.”
Stark County, Case No. 2011-CA-00001                                             11


      {¶33} As such, I would affirm the decision of the trial court granting summary

judgment in favor of appellee.




                                       ________________________________
                                            JUDGE JOHN W. WISE
[Cite as Jacobsen v. Coon Restoration & Sealants, Inc., 2011-Ohio-3563.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


CINDY AND NILES JACOBSEN                               :
                                                       :
                         Plaintiffs-Appellants         :
                                                       :
                                                       :
-vs-                                                   :       JUDGMENT ENTRY
                                                       :
COON RESTORATION &                                     :
SEALANTS, INC. AND                                     :
NORTHMARK, INC.                                        :
                                                       :
                                                       :
                      Defendants-Appellees             :       CASE NO. 2011-CA-00001




          For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, is reversed, and the

cause is remanded to the court for further proceedings in accord with law and consistent

with this opinion. Costs to appellee.




                                                           _________________________________
                                                           HON. W. SCOTT GWIN

                                                           _________________________________
                                                           HON. JOHN W. WISE

                                                           _________________________________
                                                           HON. PATRICIA A. DELANEY
