                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 19a0524n.06

                                              No. 19-3125


                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

 CHARLOTTE AUTRY,                )                                                       FILED
                                 )                                                 Oct 16, 2019
      Plaintiff-Appellant,       )                                            DEBORAH S. HUNT, Clerk
                                 )
 v.                              )
                                 )                        ON APPEAL FROM THE UNITED
 WAL-MART STORES, INC., WAL-MART )                        STATES DISTRICT COURT FOR THE
 REAL ESTATE BUSINESS TRUST, and )                        NORTHERN DISTRICT OF OHIO
 WAL-MART STORES EAST L.P.,      )
                                 )
      Defendants-Appellees.      )



BEFORE:         MERRITT, DAUGHTREY, and GRIFFIN, Circuit Judges.

        PER CURIAM. The district court, exercising its diversity jurisdiction, granted summary

judgment in favor of defendants, Wal-Mart Stores, Inc., Wal-Mart Real Estate Business Trust, and

Wal-Mart Stores East L.P. (collectively Wal-Mart), on a negligence claim asserted by plaintiff

Charlotte Autry. According to Autry, Wal-Mart breached its duty to maintain the parking lot at

its Wauseon, Ohio, store in a reasonably safe condition. As a result, Autry asserts that she tripped

on a crack in the parking lot, fell, injured her elbow, and dislocated her shoulder. Because the

danger identified by Autry was open and obvious, however, Wal-Mart breached no duty owed to

Autry. Furthermore, no attendant circumstances diverted Autry’s attention and contributed to her

fall. We thus find Autry’s claims to be without merit as a matter of law and affirm the judgment

of the district court for the reasons set forth in the district court’s written order in this matter.
No. 19-3125, Autry v. Wal-Mart Stores, Inc., et al.


           The uncontroverted facts before the district court established that Autry visited the

Wauseon Wal-Mart store on Super Bowl Sunday, February 7, 2016, to purchase groceries.

Because no parking spaces designated for use by handicapped individuals were unoccupied,1 Autry

parked illegally in a no-parking area designated by painted, diagonal stripes. In close proximity

to Autry’s parked car was a long, narrow, shallow crack in the parking lot surface that extended

through the striped area and into the lot between rows of parking spaces. Autry crossed over the

crack to get to the store, crossed over it a second time when she returned to her car with her

purchases, and crossed it yet a third time when she wheeled her shopping cart to a Wal-Mart

employee who was collecting carts in the parking lot. Only as she approached the crack for the

fourth time did she trip and fall.

           Although Autry claimed she did not see the crack before she fell because she was scanning

the lot for vehicles and other pedestrians, she admitted in deposition testimony that had she looked

down, she “would have had to have seen it.” She also conceded that at the time she fell, her

attention was not distracted in any way.

           In light of such facts, the district court concluded that the danger posed by the narrow crack

was open and obvious and was capable of being observed by an objective, reasonable person.

Thus, under relevant Ohio law, absent attendant circumstances that distracted Autry from noticing

the crack, Wal-Mart would be entitled to summary judgment on the negligence claim.

           Attendant circumstances are those distractions that tend to reduce the degree of care that

ordinary individuals would exercise under normal circumstances by “divert[ing] the attention of

the injured party, significantly enhanc[ing] the danger of the defect, and contribut[ing] to the

injury.” McCoy v. Wasabi House, LLC, 104 N.E.3d 102, 114 (Ohio Ct. App. 2018) (citation



1
    Autry had a placard that authorized her to park in spots reserved for handicap individuals.

                                                            -2-
No. 19-3125, Autry v. Wal-Mart Stores, Inc., et al.


omitted). Autry contends that the painted diagonal lines in the area where she parked, the black

sealant over part of the crack, signs in the parking lot, the presence of an employee retrieving

shopping carts, and vehicular and pedestrian traffic were the type of distractions that would and

did keep her from observing the crack over which she tripped. Again, however, the evidence in

the record before us indicates unequivocally that Autry was not distracted as she approached her

car, that she would have seen the crack had she looked down briefly as she walked, and that at the

time of her fall, there was almost no vehicular or pedestrian traffic in the immediate area. The

district court thus did not err in concluding that “no reasonable juror could find that attendant

circumstances distracted Autry’s attention, such that the open and obvious doctrine would be

inapplicable.”

        The relevant law and the reasons why summary judgment should be entered for Wal-Mart

in this case were articulated ably by the district court in its written order addressing Autry’s claims.

The issuance of a full written opinion by this court thus would be duplicative and would serve no

useful precedential purpose. We thus AFFIRM the judgment of the district court for the reasons

set forth in the district court’s order of summary judgment filed on January 24, 2019, and reported

at 2019 WL 315038.




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