[Cite as Scott v. Harrisburg Petroleum, L.L.C., 2020-Ohio-3431.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



Robert Scott,                                        :

                 Plaintiff-Appellant,                :
                                                                     No.19AP-413
v.                                                   :              (C.P.C. No. 17CV-7440)

Harrisburg Petroleum, L.L.C. et al.,                 :             (REGULAR CALENDAR)

                 Defendants-Appellees.               :




                                           D E C I S I O N

                                      Rendered on June 23, 2020


                 On brief: Walton & Brown, LLP, and Chanda L. Brown, for
                 appellant. Argued: Chanda L. Brown.

                 On brief: Caborn & Butauski Co. LPA, and Joseph A.
                 Butauski, for appellees. Argued: Joseph A. Butauski.

                  APPEAL from the Franklin County Court of Common Pleas

BEATTY BLUNT, J.
        {¶ 1} Plaintiff-appellant, Robert Scott, appeals the decision of the Franklin County
Court of Common Pleas granting defendant-appellee, Harrisburg Petroleum, L.L.C.'s,
motion for summary judgment. We overrule appellant's single assignment of error and
affirm the trial court's judgment.
        {¶ 2}    Harrisburg Petroleum owns and operates a Mobile gas station on Route 62
in Harrisburg, Ohio. On the evening of July 10, 2016, Scott and his wife visited the gas
station for a fill-up. Scott's wife was driving and he was in the passenger seat. After the car
pulled up to a gas pump on the driver's side, Scott exited the passenger side of the vehicle
and walked around the front toward the pump so that he could fill the tank. As he turned
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around the front of the vehicle, Scott stepped into a pothole, fell, and was injured. The hole
was approximately two feet in diameter, about 5-6 inches deep, and apparently contained
some fill rock.
       {¶ 3} Scott was very familiar with the gas station and its lot, as it was approximately
four miles from his home and he estimated they visited there twice per month. He had seen
potholes at the gas station on previous occasions but had not seen this particular pothole,
and those other potholes were not in the gas pumping area. He stated the pothole was
visible from approximately 20 feet away, under the same light conditions to which he was
subject the night he fell. He also admitted he was not looking at the ground while he was
walking, and that if he had been looking at the ground he would have seen the pothole. The
owner of Harrisburg Petroleum stated the pothole had actually been created by a company
he hired to repair gas pump lines that had been damaged in an attempted robbery, and
testified the pothole had been created during the repairs.
       {¶ 4} Harrisburg Petroleum filed a motion for summary judgment on
November 29, 2018, arguing that it owed no special duty of care to Scott to protect him
from the pothole because it was an open-and-obvious danger. Scott's response argued there
were attendant circumstances that should prevent application of the open-and-obvious
doctrine: his vehicle obscured his view of the pothole, he had no reason to expect that there
would be a pothole in that location, he was distracted by traffic and by the task associated
with pumping gas, and the pothole was difficult to perceive due to its color and position.
But, on June 19, 2019, the trial court granted Harrisburg Petroleum's motion and held that
the pothole was open and obvious:
               Upon consideration, however, the Court finds that the
               aforementioned circumstances comprise a common scenario
               found at a gas station and that none of the factors identified
               obscured Plaintiff's view of the pothole in question.
               Furthermore, the Court finds that the circumstance was not
               beyond Plaintiff's control as he could have easily seen the
               pothole had he looked. Therefore, the Court finds this
               condition open and obvious and finds no negligence on the part
               of Defendant.

(June 19, 2019 Decision & Entry at 5-6.).
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       {¶ 5} This timely appeal followed, and Scott now asserts a single assignment of
error: "The trial court erred when it granted the motion for summary judgment filed by
Harrisburg Petroleum, LLC."
       {¶ 6} Civ.R. 56(C) provides that "[s]ummary 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." The Supreme Court of Ohio has explained this rule
as follows:
               Summary judgment will be granted only when there remains
               no genuine issue of material fact and, when construing the
               evidence most strongly in favor of the nonmoving party,
               reasonable minds can only conclude that the moving party is
               entitled to judgment as a matter of law. The burden of showing
               that no genuine issue of material fact exists falls upon the party
               who files for summary judgment.

Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, ¶ 10. In deciding a motion for summary
judgment, the trial court must give the nonmoving party "the benefit of all favorable
inferences when evidence is reviewed for the existence of genuine issues of material facts."
Id. at ¶ 25. And when reviewing a trial court's decision on summary judgment, an appellate
court's review is de novo, and the court applies the same standards as the trial court.
Bonacorsi v. Wheeling & Lake Erie Ry., 95 Ohio St.3d 314, 2002-Ohio-2220, ¶ 24.
Accordingly, we have conducted an independent review of the record since we stand in the
same shoes as the trial court. See, e.g., Jones v. Shelly Co. 106 Ohio App.3d 440, 445 (5th
Dist.1994).
       {¶ 7} An owner "owes business invitees a duty of ordinary care in maintaining the
premises in a reasonably safe condition so that its customers are not unnecessarily and
unreasonably exposed to danger." Liggins v. Giant Eagle McCutcheon & Stelzer, 10th Dist.
No. 17AP-383, 2019-Ohio-1250, ¶ 13, citing Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio
St.3d 203 (1985). But when applicable, the "open-and-obvious doctrine" operates as an
exception to that duty and acts as a complete bar to a negligence claim. In Armstrong v.
Best Buy Co., 99 Ohio St.3d 79, 2003-Ohio-2573, the Supreme Court held that Ohio
adheres to the open-and-obvious doctrine in premises liability cases and held that "[w]here
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No. 19AP-413
a danger is open and obvious, a landowner owes no duty of care to individuals lawfully on
the premises." Id. at ¶ 14, citing Sidle v. Humphrey, 13 Ohio St.2d 45 (1968). The rationale
underlying the doctrine is "that the open and obvious nature of the hazard itself serves as 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 (1992). "[T]he existence and
obviousness of an alleged danger requires a review of the underlying facts." Johnson v. Am.
Italian Golf Assn. of Columbus, 10th Dist. No. 17AP-128, 2018-Ohio-2100, ¶ 16, quoting
Freiburger v. Four Seasons Golf Ctr., L.L.C., 10th Dist. No. 06AP-765, 2007-Ohio-
2871,¶ 11. The question is whether the material facts demonstrate "whether the danger was
free from obstruction and readily appreciated by an ordinary person." Freiburger at ¶ 11.
"If there is no genuine issue as to these material facts, that is, if reasonable minds could not
differ about them, then, as a matter of law, a court may decide that an alleged hazard is
open and obvious." Johnson at ¶ 16, citing Freiburger at ¶ 11. Moreover, the plaintiff " 'does
not need to observe the dangerous condition for it to be an "open-and-obvious" condition
under the law; rather, the determinative issue is whether the condition is observable' or if
[the] 'plaintiff could have seen the condition if he or she had looked.' " Smith-Huff v. Wal-
Mart Stores, Inc., 10th Dist. No. 15AP-454, 2015-Ohio-5238, ¶ 11, quoting Thompson v.
Ohio State Univ. Physicians, Inc., 10th Dist. No. 10AP-612, 2011-Ohio-2270, ¶ 12.
       {¶ 8} But the open-and-obvious exception to the duty of reasonable care owed to
business invitees is itself subject to an exception, as "[a]ttendant circumstances can create
an exception to the open-and-obvious doctrine." Rawlings v. Springwood Apts. of
Columbus, Ltd., 10th Dist. No. 18AP-359, 2018-Ohio-4845, ¶ 26, quoting Johnson at ¶ 20.
See also Cooper v. Meijer Stores Ltd. Partnership, 10th Dist. No. 07AP-201, 2007-Ohio-
6086, ¶ 14 ("Even when a plaintiff admits not seeing an obstacle because he or she never
looked down, a jury question may arise if attendant circumstances distracted him or her.").
"An attendant circumstance is a factor that contributes to the fall and is beyond the control
of the injured party." Cooper at ¶ 15, citing Backus v. Giant Eagle, Inc., 115 Ohio App.3d
155, 158 (7th Dist.1996). An "attendant circumstance" is a "significant distraction that
would divert the attention of any reasonable person in the same situation and thereby
reduce the amount of care an ordinary person would exercise to avoid an otherwise open
and obvious hazard." Haller v. Meijer, Inc., 10th Dist. No. 11AP-290, 2012-Ohio-670, ¶ 10.
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No. 19AP-413
"The attendant circumstances must be so abnormal as to unreasonably increase the normal
risk of an ordinary person, or so as to reduce the ordinary person's degree of care." Johnson
at ¶ 20.
         {¶ 9} Finally, we observe that "[a]ppellate courts typically view darkness as a
circumstance that increases, rather than decreases, the degree of care an ordinary person
would exercise." Rawlings at ¶ 32, citing Jeswald v. Hutt, 15 Ohio St.2d 224, 227
(1968)     (" 'Darkness' is always a warning of danger, and for one's own protection it may
not be disregarded."). See also Mayle v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 09AP-
541, 2010-Ohio-2774, ¶ 22 (finding darkness to not be an attendant circumstance where
the plaintiff admitted he was not looking down at the ground at the time of the accident
despite his belief that the area was poorly lit); McCoy v. Kroger Co., 10th Dist. No. 05AP-
7, 2005-Ohio-6965, ¶ 14-16 (finding darkness was not an attendant circumstance sufficient
to avoid the application of the open-and-obvious doctrine where the plaintiff testified that
nothing distracted him and he was looking straight ahead instead of at the ground while he
exited his truck); and Jenkins v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 12AP-787,
2013-Ohio-5106, ¶ 17 (noting "inadequate lighting acts as a warning itself to proceed with
caution").
         {¶ 10} Scott argues that the open-and-obvious doctrine does not apply in this case
because of attendant circumstances, and points to four arguments: (a) the pothole was
concealed from view by his vehicle, (b) he did not have exact knowledge of where the
pothole was located, (c) he was distracted by the act of pumping and the vehicular traffic,
and (d) the pothole was difficult to see due to its color and position. But these arguments
are unavailing. The fact that the pothole was concealed by Scott's vehicle and the fact that
he did not have exact knowledge of the pothole's location do not qualify as "attendant
circumstances" under the law, since they were not circumstances created by the property
owner. McConnell v. Margello, 10th Dist. No. 06AP-1235, 2007-Ohio-4860, ¶ 17, citing
Lang v. Holly Hill Motel, Inc., 4th Dist No. 06CA1 8, 2007-Ohio-3898, ¶ 25. Similarly,
neither vehicle traffic nor pumping gas are "attendant circumstances" under the law, as
they are within the intended and expected nature of a gas station and are not the kind of
"abnormal" distractions that would "unreasonably increase the normal risk of an ordinary
person, or so as to reduce the ordinary person's degree of care." Johnson at ¶ 20. By Scott's
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own admission he had not yet begun pumping gas at the time he fell, and there is no other
evidence that "the traffic in the parking lot at the time she fell was different than that a
shopper ordinarily would encounter." See Cooper, 2007-Ohio-6086 at ¶ 18. Finally, the
fact that the pothole may have been difficult to see due to its color is a quality of the danger
itself and is also not an "attendant circumstance" in that Scott's attention was not "diverted
or distracted" by the pothole, Rawlings at ¶ 35, and he in fact admitted that he would have
seen the pothole if he had been looking at the ground.
       {¶ 11} Upon a thorough and independent review of the record, and giving Scott the
benefit of all favorable inferences in the evidence, we cannot say there is a genuine issue of
material fact as to the existence of any attendant circumstances that would remove this case
from the operation of the open-and-obvious doctrine. Accordingly, we conclude the trial
court did not err in granting summary judgment to Harrisburg Petroleum. Scott's single
assignment of error is overruled, and the judgment of the Franklin County Court of
Common Pleas in this case is affirmed.
                                                                         Judgment affirmed.
                             BROWN and DORRIAN, JJ., concur.
