[Cite as Sexton v. Certified Oil Co., 2013-Ohio-482.]


                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                                ROSS COUNTY

JAMES SEXTON, ET AL.,             :
                                  :
     Plaintiffs-Appellants,       : Case No. 11CA3299
                                  :
     vs.                          :
                                  : DECISION AND JUDGMENT
CERTIFIED OIL COMPANY,            : ENTRY
                                  :
    Defendant-Appellee.           : Released: 02/07/13
_____________________________________________________________
                            APPEARANCES:

Sanford A. Meizlish, Barkan Meizlish Handelman Goodin Derose Wentz,
LLP, Columbus, Ohio, for Appellants.

David K. Frank, Robert H. Stoffers, and Jeffery S. Maynard, Mazanec,
Raskin & Ryder Co., L.P.A., Columbus, Ohio, for Appellee.
_____________________________________________________________

McFarland, P. J.

        {¶1} James and Sheila Sexton appeal the judgment of the Ross

County Court of Common Pleas, granting summary judgment to Defendant-

Appellee Certified Oil Company. Having reviewed the record and the

pertinent law, we affirm.




                                                   FACTS
Ross App. No. 11CA3299                                                            2


      {¶2} On January 7, 2009, Appellant James Sexton fell on the premises

of the Certified Oil gas station on Bridge Street in Chillicothe, Ohio. He

injured his left knee and subsequently incurred substantial medical bills.

      {¶3} Appellant testified that on the accident date, he arrived at the gas

station between 12:30 and 1:00 p.m. He exited his vehicle, pumped gas, and

walked between two sets of pumps. When he walked between the pumps, he

fell. A woman helped him up. He went into the station to report his fall.

On his way out of the station, he noticed a section of concrete was raised at

the place where he tripped. He did not measure the raised concrete, but

testified it appeared to be 1 ¾ to 2 inches high. Appellant took photographs

of the area where he fell, and he testified the photographs reflected the

conditions present on the day of his fall. Specifically, he testified there had

been a shadow cast on the area where he fell.

      {¶4} Appellant further testified he had been to that particular Certified

station on approximately three prior occasions. On the day of the incident,

prior to his fall, Appellant testified he never looked at the ground, nor did he

look to see what caused him to fall afterwards. Appellant acknowledged

there were no obstructions or other objects which would block his view of

the concrete.
Ross App. No. 11CA3299                                                        3


      {¶5} Appellant and his wife, Sheila Sexton, filed suit against

Defendant Certified Oil Company on December 10, 2010. Appellant alleged

negligent maintenance of the gas station premises. His wife asserted a claim

for loss of consortium. Defendant-Appellee filed a timely answer. On May

18, 2011, Defendant-Appellee filed a motion for summary judgment arguing

that the condition of the concrete in the area where Appellant fell constituted

an “open and obvious” condition. Appellant filed a memorandum contra,

responding that the shadow over the raised concrete created an “attendant

circumstance” and thus, a genuine issue of material fact precluded summary

judgment. Appellee filed a reply brief. On October 19, 2011, the trial court

entered its decision in favor of Defendant-Appellee. The court concluded

that the “raised concrete was an open and obvious danger, a minor defect not

made unreasonably dangerous due to any attendant circumstances.” This

appeal ensued.

                         ASSIGNMENT OF ERROR

I.    THE COMMON PLEAS COURT ERRED BY ENTERING
      SUMMARY JUDGMENT IN FAVOR OF DEFENDANT-
      APPELLEE CERTIFIED OIL COMPANY WHEN (1) THE
      RECORD, WHEN CONSTRUED IN ACCORDANCE WITH
      CIV.R.56, REVEALS GENUINE ISSUES OF MATERIAL FACT;
      AND (2) THE DEFENDANT-APPELLEE IS NOT ENTITLED TO
      JUDGMENT AS A MATTER OF LAW (DECISION AND ENTRY,
      OCTOBER 19, 2011).

                            LEGAL ANALYSIS
Ross App. No. 11CA3299                                                            4


                               JURISDICTION

      {¶6} As a threshold matter, Appellee Certified Oil points out that

summary judgment in its favor on Appellant Sheila Sexton’s loss of

consortium claim was also appropriate, even though it was not specifically

addressed by the trial court’s judgment entry. “An order which adjudicates

one or more but fewer than all the claims * * * must meet the requirements

of R.C. 2505.02 and Civ.R. 54(B) in order to be final and appealable.”

Watershed Management L.L.C. v. Neff, 4th Dist. No. 10CA42, 2012 Ohio

1020, 2012 WL 832829, ¶18; Noble v. Colwell, 44 Ohio St. 3d 92, 96, 540

N.E. 2d 1381. Under Civ. R. 54(B), any “form of decision, however

designated, which adjudicates fewer than all the claims * * * shall not

terminate the action as to any of the claims or parties.” Neff, ¶18. Despite

the plain language of Civ.R. 54(B), the Supreme Court of Ohio has held “ a

judgment in an action which determines a claim in that action and has the

effect of rendering moot all other claims in the action as to all other parties

to the action is a final appealable order pursuant to R.C. 2505.02, and Civ.R.

54(B) is not applicable to such a judgment.” Neff, ¶19; Wise v. Gursky, 66

Ohio St. 2d 241, 243, 421 N.E.2d 150 (1981). See, also, General Accident

Insurance Company v. Insurance Co. of N. America, 44 Ohio St.3d 17, 21,

540 N.E.2d 266 (1989). Essentially, when a judgment on fewer than all
Ross App. No. 11CA3299                                                         5


claims renders the remaining claims moot, it becomes a judgment on all the

claims, and Civ.R.54(B) no longer applies. Neff, ¶19.

      {¶7} A claim for loss of consortium is derivative in that the claim is

dependent upon the defendant having committed a legally cognizable tort

upon the spouse who suffers bodily injury. Bowen v. Kil-Kare, Inc., 63 Ohio

St. 3d 84, 88, 585 N.E.2d 384 (1992). While a spouse’s claim for loss of

consortium is separate and distinct, the non-injured spouse cannot recover

for loss of consortium if there is no cognizable claim under Ohio law that

would be available to the injured spouse. LeMaster v. Davis, 4th Dist. No.

95CA30, 1996 WL 174627, (Apr. 10, 1996); See also, Gallimore v.

Children’s Hosp., 67 Ohio St.3d 244, 617 N.E.2d 1052 (1993). Because the

trial court determined summary judgment on Appellant James Sexton’s

claims to be appropriate, Appellant Sheila Sexton’s loss of consortium claim

did not survive. Based on the above, we believe judicial economy mandates

that we proceed with a disposition on the merits. See e.g. Ratliff v.

Morehead, 4th Dist. No 97CA2505, 1998 WL 254031, (May 19, 1998).

                                      WAIVER

       {¶8} Appellee Certified Oil initially argues that Appellants have

waived their arguments on appeal as to “multiple issues of material fact” in

that Appellant’s arguments are raised only in skeletal form, without
Ross App. No. 11CA3299                                                          6


reference to the record, and are therefore, not adequately briefed.

Specifically, Appellee asserts that Appellant failed to identify only an

oblique suggestion that a question of whether the slightly raised area of

concrete, at issue in this matter, was visible or discernible (open and

obvious). App.R.12(A)(2) provides: “The court may disregard and

assignment of error presented for review if the party raising it fails to

identify in the record the error on which the assignment of error is based or

fails to argue the assignment separately in the brief, as required under

App.R.16(A).” In re Snyder, 4th Dist. No. 01CA11, 2002-Ohio-6137, 2002

WL 31520119, ¶36, citing Hawley v. Ritley, 35 Ohio St.3d 157, 519 N.E.2d

390 (1988), (explaining that an appellate court may rely upon App.R.12(A)

in disregarding an argument because the appellant failed to adequately brief

the argument.) However, in the interests of justice we shall review the

arguments presented in Appellants’ brief to this Court.

                      SUMMARY JUDGMENT STANDARD

      {¶9} Initially, we note that appellate courts conduct a de novo review

of trial court summary judgment decisions. See, e.g., Grafton v. Ohio Edison

Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Accordingly, an

appellate court must independently review the record to determine if

summary judgment is appropriate and need not defer to the trial court's
Ross App. No. 11CA3299                                                            7


decision. See Brown v. Scioto Bd. of Commrs., 87 Ohio App.3d 704, 711,

622 N.E.2d 1153 (1993); Morehead v. Conley, 75 Ohio App.3d 409, 411-12,

599 N.E.2d 786 (1991). Thus, to determine whether a trial court properly

granted a summary judgment motion, an appellate court must review the

Civ.R.56 summary judgment standard, as well as the applicable law.

      Civ.R.56(C) provides, in relevant part, as follows:

      {¶10} * * * Summary judgment shall be rendered forthwith if the

pleadings, depositions, answers to interrogatories, written admissions,

affidavits, transcripts of evidence in the pending case, 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.

      {¶11} Pursuant to Civ.R.56, a trial court may not award summary

judgment unless the evidence demonstrates that: (1) no genuine issue as to
Ross App. No. 11CA3299                                                            8


any material fact remains to be litigated; (2) the moving party is entitled to

judgment as a matter of law; and (3) reasonable minds can come to but one

conclusion, and after viewing such evidence most strongly in favor of the

nonmoving party, that conclusion is adverse to the party against whom the

motion for summary judgment is made. See, e.g., Vahila v. Hall, 77 Ohio

St.3d 421, 429-30, 674 N.E.2d 1164 (1997).

                                NEGLIGENCE

       {¶12} A successful negligence action requires a plaintiff to establish

that: (1) the defendant owed the plaintiff a duty of care; (2) the defendant

breached the duty of care; and (3) as a direct and proximate result of the

defendant's breach, the plaintiff suffered injury. See, e.g., Texler v. D.O.

Summers Cleaners, 81 Ohio St.3d 677, 680, 693 N.E.2d 217 (1998); Jeffers

v. Olexo, 43 Ohio St.3d 140, 142, 539 N.E.2d 614 (1989); Menifee v. Ohio

Welding Products, Inc., 15 Ohio St.3d 75, 472 N.E.2d 707 (1984). If a

defendant points to evidence to illustrate that the plaintiff will be unable to

prove any one of the foregoing elements, and if the plaintiff fails to respond

as Civ.R.56 provides, the defendant is entitled to judgment as a matter of

law. See Lang v. Holly Hill Motel, Inc., 4th Dist. No. 06CA18, 2007-Ohio-

3898, at ¶ 19, affirmed, 122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d

120.
Ross App. No. 11CA3299                                                         9


      {¶13} The existence of a defendant's duty is a threshold question in a

negligence case. Jackson v. Pike County Bd. of Commr., 4th Dist. No.

10CA805, 2010-Ohio-4875, 2010 WL 3902618 , ¶15. See e.g., Armstrong

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

at ¶ 13. In a premises liability case, the relationship between the owner or

occupier of the premises and the injured party determines the duty owed.

Jackson, ¶15. See, e.g., Gladon v. Greater Cleveland Regional Transit

Auth., 75 Ohio St.3d 312, 315, 662 N.E.2d 287 (1996); Shump v. First

Continental-Robinwood Assocs., 71 Ohio St.3d 414, 417, 644 N.E.2d

291(1994). In the case at bar, Mr. Sexton was a business invitee to whom

Appellee owed a duty of care to maintain its gas station premises in a

reasonably safe condition. We turn next to a consideration of whether or not

the raised concrete that Appellant encountered constituted an open and

obvious hazard.

                   THE “OPEN AND OBVIOUS” DOCTRINE

      {¶14} A premises owner or occupier possesses the duty to exercise

ordinary care to maintain its premises in a reasonably safe condition, such

that business invitees will not unreasonably or unnecessarily be exposed to

danger. Jackson v. Pike County, ¶16. See e.g. , Paschal v. Rite Aid

Pharmacy, Inc., 18 Ohio St.3d 203, 203, 480 N.E.2d 474 (1985). A premises
Ross App. No. 11CA3299                                                           10


owner or occupier is not, however, an insurer of its invitees' safety. Id.

While the premises owner must warn its invitees of latent or concealed

dangers if the owner knows or has reason to know of the hidden dangers, see

Jackson v. Kings Island, 58 Ohio St.2d 357, 358, 390 N.E.2d 810, (1979),

invitees are expected to take reasonable precautions to avoid dangers that are

patent or obvious. See Brinkman v. Ross, 68 Ohio St.3d 82, 84, 623 N.E.2d

1175 (1993); Sidle v. Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589 (1968),

paragraph one of the syllabus.

      {¶15} Therefore, when a danger is open and obvious, a premises

owner owes no duty of care to individuals lawfully on the premises.

Armstrong, at ¶ 5; Sidle, paragraph one of the syllabus. By focusing on duty,

“the rule properly considers the nature of the dangerous condition itself, as

opposed to the nature of the plaintiff's conduct in encountering it.”

Armstrong at ¶13. The underlying rationale 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.” Id. at ¶ 5.

“The fact that a plaintiff was unreasonable in choosing to encounter the

danger is not what relieves the property owner of liability. Rather, it is the

fact that the condition itself is so obvious that it absolves the property owner
Ross App. No. 11CA3299                                                         11


from taking any further action to protect the plaintiff.” Id. at ¶ 13. Thus, the

open and obvious doctrine obviates the duty to warn and acts as a complete

bar to recovery. Id. at ¶ 5. Furthermore, the issue of whether a hazard is open

and obvious may be decided as a matter of law when no factual issues are

disputed. Nageotte v. Cafaro Co., 160 Ohio App.3d 702, 710, 2005-Ohio

2098, 828 N.E.2d 683, at ¶ 28, citing Armstrong.

      {¶16} In the case at bar, we agree with the trial court’s opinion that

any danger associated with the raised concrete at the Certified gas station

was open and obvious. Nothing about the condition of the concrete was

hidden or concealed from view from a person who was watching where he

or she was going. Mr. Sexton testified that there was no rain or snow, no

ice or snow accumulation which prevented him from looking at the

pavement as he walked. There was nothing that struck him as being

abnormal in comparison to his prior visits to the gas station. More important,

Appellant testified that he never looked at the ground in the area where he

fell before he stumbled and fell, and that there were no obstructions or other

objects blocking his view of the concrete or pathway he was taking into the

gas station. The facts demonstrate that Appellant failed to look and discover

the raised concrete prior to his fall. We next consider whether or not
Ross App. No. 11CA3299                                                        12


“attendant circumstances” prevented him from discovering the raised

concrete.

                             “THE TWO INCH RULE”

      {¶17} This general rule, known as the “two-inch rule”, has been

clarified by the Supreme Court of Ohio in Cash v. Cincinnati, 66 Ohio St.2d

319, 421 N.E.2d 1275 (1981). In Cash, the Supreme Court established that

differences in height of two inches or less create a rebuttable presumption

which may be rebutted by a showing of attendant circumstances sufficient to

render the defect substantial. Cash, supra, at 323-324. What constitutes

attendant circumstances has not been clearly defined; however, the totality

of the circumstances of each case must be examined to determine if the

circumstances create a substantial defect. Stockhauser v. Archdiocese of

Cincinnati, 97 Ohio App.3d 29, 646 N.E.2d 198, (2nd. Dist. 1994), citing

France v. Parliament Park Townhomes, 2nd. Dist. No. 14264, 1994 WL

15658, (Apr. 27, 1994). Appellant acknowledged in his deposition that the

raised concrete which he asserts caused his fall was 1 ¾ to 2 inches in

height. Appellant argues that the attendant circumstances, i.e, the shadow

that was cast between the gas pumps, rendered the raised concrete a

substantial defect. Specifically, Appellant testified that after he picked

himself up from the fall, he went into the gas station and attempted to file a
Ross App. No. 11CA3299                                                         13


report. When he exited the station and went back to his vehicle, he

discovered the section of raised concrete in the area where he fell. That is

when he further noticed a shadow in the area of the raised concrete. We

disagree with Appellant’s contention that the shadow over the raised

concrete created an attendant circumstance.



                       “ATTENDANT CIRCUMSTANCES”

      {¶18} “Attendant circumstances” may also create a genuine issue of

material fact as to whether a hazard is open and obvious. Jackson v. Pike

County, ¶21. Lang at ¶ 24; Cummin v. Image Mart, Inc., 10th Dist. No.

03AP1284, 2004-Ohio-2840, 2004 WL 1220041, at ¶ 8, citing McGuire v.

Sears, Roebuck & Co., 118 Ohio App.3d 494, 498, 693 N.E.2d 807 (1st Dist.

1996). An attendant circumstance is a factor that contributes to the fall and

is beyond the injured person's control. Jackson v. Pike County, ¶21. See, e.g.

Backus v. Giant Eagle, Inc., 115 Ohio App.3d 155, 158, 684 N.E.2d 1273

(7th Dist. 1996). “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.” Jackson v. Pike County, ¶21;

Cummin at ¶ 8, citing Cash. An “attendant circumstance” has also been
Ross App. No. 11CA3299                                                        14


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.” Jackson v. Pike County, ¶21;

McGuire, 118 Ohio App.3d at 499, 693 N.E.2d 807.

      {¶19} 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. Jackson v. Pike

County, ¶22. Moreover, an individual's particular sensibilities do not play a

role in determining whether attendant circumstances make the individual

unable to appreciate the open and obvious nature of the danger. Id. As the

court explained in Goode v. Mt. Gillion Baptist Church, 8th Dist. No. 87876,

2006-Ohio-6936, 2006 WL 3804534, at ¶ 25: “The law uses an objective,

not subjective, standard when determining whether a danger is open and

obvious. The fact that appellant herself was unaware of the hazard is not

dispositive of the issue. It is the objective, reasonable person that must find

that the danger is not obvious or apparent.” Thus, we use an objective

standard to determine whether the danger associated with the condition was

open and obvious. Jackson v. Pike County, ¶22. Furthermore, the question

of whether a danger is open and obvious is highly fact-specific. Stanfield v.

Amvets Post No. 88, 2nd Dist. No. 06CA35, 2007-Ohio-1896, 2007 WL
Ross App. No. 11CA3299                                                        15


1174445, at ¶ 12; Henry v. Dollar General Store, 2nd Dist. No.2002-CA-47,

2003-Ohio-206, 2003 WL 139773, at ¶ 16.

      {¶20} Here, we determine that upon consideration of the totality of the

circumstances, the raised concrete was an open and obvious condition.

Further, we find that Appellant failed to establish the existence of attendant

circumstances so as to create a genuine issue of any material fact.

Appellant’s argument regarding the shadow over the area of the raised

concrete is not persuasive. As we previously observed in Jackson v. Pike

County, ¶24: (1) a business owner has no affirmative duty to light walkways

and public parking areas outside their buildings to accommodate invitees;

and (2) darkness is always a warning of danger. Jeswald v. Hutt, 15 Ohio

St.3d 224, 239 N.E.2d 37, (1968) paragraphs two and three of the syllabus.

Thus, “[t]he amount of light in a given area is an open and obvious

condition.” Jackson v. Pike County, ¶24, quoting, Swonger v. Middlefield

Village Apartments, 11th Dist. No. 2003-G-2547, 2005-Ohio-570, at¶12.

We reiterate our statement in Jackson v. Pike County, that “if the area was

dark and shadowed, as claimed, then such condition itself should have
Ross App. No. 11CA3299                                                                                 16


served as a warning to Appellant to exercise caution.” ¶24. See, e.g. Gordon

v. Dziak, 8th Dist. No. 88882, 2008-Ohio-570, 2008- WL 384146, at¶50.1

        {¶21} For the foregoing reasons, we overrule Appellants’ assignment

of error and affirm the judgment of the trial court.


                                                              JUDGMENT AFFIRMED.




1
 This case rejected “as beyond reasonable comprehension, the “argument that an undisclosed presence of
shadows near a residence could be dangerous” and stating that “a person should not be held liable where he
or she had no control over shadows caused by the sun”); Swonger (“the person who disregards a dark
condition does so at his or her own peril.”).
Ross App. No. 11CA3299                                                        17


                           JUDGMENT ENTRY


     It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of Appellants costs herein taxed.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Ross County Common Pleas Court to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.

Kline, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Judgment Only.

                          For the Court,

                          BY: _________________________
                              Matthew W. McFarland
                              Presiding Judge



                         NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
