[Cite as Humble v. Boneyard Westlake, L.L.C., 2016-Ohio-8149.]



                   Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA



                             JOURNAL ENTRY AND OPINION
                                     No. 104348




                                  JEFFREY HUMBLE
                                                          PLAINTIFF-APPELLANT

                                                    vs.

                      BONEYARD WESTLAKE, L.L.C.
                                                          DEFENDANT-APPELLEE




                                          JUDGMENT:
                                           AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-15-841439

             BEFORE:          Blackmon, J., E.A. Gallagher, P.J., and Boyle, J.

             RELEASED AND JOURNALIZED:                           December 15, 2016
                                                    -i-
ATTORNEY FOR APPELLANT

Denise M. Demmitt
Demmitt & Co., L.L.C.
1836 W. 25th St., Suite 2A
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

James T. Tyminski
Abigail A. Greiner
Gallagher Sharp L.L.P.
Bulkley Building, 6th Floor
1501 Euclid Avenue
Cleveland, Ohio 44115
PATRICIA ANN BLACKMON, J.:

       {¶1} Jeffrey Humble (“Humble”) appeals the trial court’s granting summary

judgment to Boneyard Westlake, L.L.C. (“Boneyard”) in this negligence case and assigns

the following errors for our review:

       I. The trial court erred as a matter of law by failing to identify the
       existence of genuine issues of material fact in dispute, as were posited by
       the Plaintiff.

       II. The trial court erred as a matter of law by failing to construe evidence
       in a light most favorable to the non-moving party.

       III. The trial court erred as a matter of law by misapplying and
       misconstruing case law.

       {¶2} Having reviewed the record and pertinent law, we affirm. The apposite

facts follow.

       {¶3} On November 25, 2012, Humble attended an event held in Boneyard’s party

room to watch a Cleveland Browns football game. Boneyard’s party room is set off to

the right of the main dining room and elevated by two steps. 1         Upon arriving at

Boneyard, Humble went up the two steps and entered the party room without incident.

During halftime of the football game, Humble got up from his seat to use the restroom,

which is located in the main dining room. However, when exiting the party room,


       1
        According to Humble’s deposition testimony, there is the floor of the main
dining area, one step, and the floor of the party room. In other words, there is one
riser, but two “steps” must be taken to get from one area to the other.
Humble missed the steps and fell to the ground, sustaining multiple fractures to his right

leg. According to Humble, he did not see the steps, because a crowd of people was

blocking his view.

       {¶4} Humble filed suit against Boneyard alleging negligence and negligence per

se. On March 16, 2016, the court granted Boneyard’s motion for summary judgment on

both claims. It is from this order that Humble appeals.

                                   Summary Judgment

       {¶5} Appellate review of granting summary judgment is de novo. Pursuant to

Civ.R. 56(C), the party seeking summary judgment must prove that (1) there is no

genuine issue of material fact; (2) they are entitled to judgment as a matter of law; and (3)

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

nonmoving party. Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996).

                           Negligence and Premises Liability

       {¶6} “To establish actionable negligence, one must show * * * the existence of a

duty, a breach of that duty and injury resulting proximately therefrom.” Mussivand v.

David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989). The duty that a landowner owes

to an invitee is “to exercise ordinary care for the invitee’s safety and protection.”

Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 317, 662 N.E.2d

287 (1996).   There is no question that in a premises liability case, such as the case at

hand, a patron of a bar or restaurant is considered a business invitee. See, e.g., Light v.

Ohio Univ., 28 Ohio St.3d 66, 68, 502 N.E.2d 611 (1986).
                              Open-and-Obvious Exception

       {¶7} There are exceptions to a business owner’s duty to exercise ordinary care.

For example, under the open-and-obvious doctrine, “a premises-owner owes no duty to

persons entering those premises regarding dangers that are open and obvious.”

Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 5.

“The rationale behind 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, 597

N.E.2d 504 (1992).      When applying the open-and-obvious doctrine, courts use “an

objectively-reasonable-person standard of what the plaintiff should have known * * *.”

Bumgardner v. Wal-Mart Stores, 2d Dist. Miami No. 2002-CA-11, 2002-Ohio-6856, ¶

18.

       {¶8} The open-and-obvious doctrine may be defeated, however, if “attendant

circumstances” existed.    Attendant circumstances are typically distractions that would

draw a person’s attention away from the open and obvious danger, thus reducing the

degree of ordinary care that person may exercise at the time. See Johnson v. Regal

Cinemas, Inc., 8th Dist. Cuyahoga No. 93775, 2010-Ohio-1761.                     “‘Attendant

circumstances’ refers to all facts relating to the event, such as time, place, surroundings or

background and the conditions normally existing that would unreasonably increase the
normal risk of a harmful result of the event.” Klauss v. Marc Glassman, Inc., 8th Dist.

Cuyahoga No. 84799, 2005-Ohio-1306, ¶ 20.

         {¶9} Ohio courts have held that “a plaintiff who claims attendant circumstances

must be able to point out differences between ordinarily encountered conditions and the

situation that actually confronted the plaintiff.        The breadth of the attendant

circumstances exception does not encompass the common or the ordinary.” Cooper v.

Meijer Stores L.P., 10th Dist. Franklin No. 07AP201, 2007-Ohio-6086, ¶ 17.

         {¶10} Furthermore, “[w]here only one conclusion can be drawn from the

established facts, the issue of whether a risk was open and obvious may be decided by the

court as a matter of law.” Klauss at ¶ 18.      “However, where reasonable minds could

differ with respect to whether a danger is open and obvious, the obviousness of the risk is

an issue for the jury to determine.” Id.

                                           Analysis

         {¶11} In the case at hand, Humble’s three assigned errors allege that the court

improperly granted summary judgment in favor of Boneyard on Humble’s negligence

claim.    It does not appear that Humble is appealing the court’s granting summary

judgment on his negligence per se claim.         Accordingly, we will review Humble’s

assigned errors together.
       {¶12} Humble’s first argument is that there are genuine issues of material fact

regarding whether “overcrowding” triggered the attendant circumstances exception to the

open-and-obvious doctrine.2 Specifically, Humble argues that

       [t]he dangers surrounding the stairs changed from the time Mr. Humble
       entered the party room that day to the time he attempted to use the restroom.
         Mr. Humble knew the steps were there, but overcrowding by [Boneyard’s]
       patrons did not allow him to appreciate where those stairs were in relation
       to where he sought egress.

       {¶13} Humble alleges in his complaint that the number of people in the party room

violated the occupancy permit.        However, Humble offers no evidence to support this

allegation other than testimony that the Boneyard was generally crowded.                   Humble

testified in deposition that he “did not see the step because there were people standing

right, you know, right in front of the step.” Additionally, Humble stated in his affidavit

that “there were approximately 50 people sitting and standing around the party room. * *

* [T]here was a wall of people standing in front of the steps out of the party room at the

time that I attempted to leave to use the restroom [and] I could not see the step because of

all the people standing in front of the party room steps.”




       2
        Humble argues that “a combination of poor lighting [and] similarly colored stairs to the
surrounding floor” is evidence that Boneyard “did negligently conceal the conditions of the stairs.”
However, Ohio courts have “consistently held that dimly lit steps and uniform color between a step
and the floor do not render steps unreasonably dangerous, but rather present an open and obvious
danger of which the person traversing the steps should be aware.” McDonald v. Marbella
Restaurant, 8th Dist. Cuyahoga No. 89810, 2008-Ohio-3667, ¶ 39. Therefore, we limit our review
to Humble’s argument that the crowd amounted to an attended circumstance.
       {¶14} Humble also offered the deposition of another Boneyard patron who stated

that she was in the party room with Humble on the day in question.     “[T]here was a large

number of people standing in the party room, in front of the steps, blocking the view of

them, [and] I was unable to see where the steps were due to aforementioned people * *

*.”

       {¶15} Our review of the record shows that Humble did not offer into evidence the

certificate of occupancy mentioned in his briefing nor any other evidence concerning the

maximum number of people allowed in the party room.               In other words, Humble

presented evidence that the Boneyard was crowded during halftime of a Browns game.

However, “this court has consistently held that the presence of a crowd in and of itself

does not present issues of fact that necessitate resolution through trial.”    Hammond v.

Cleveland, 8th Dist. Cuyahoga No. 97174, 2012-Ohio-494, ¶ 17.

       {¶16} Furthermore, Boneyard does not necessarily dispute Humble’s claim that the

establishment, including the party room, was crowded on the day in question. Rather,

Boneyard argues that Humble failed to show that the crowd was an attendant

circumstance that distracted Humble from the steps that he successfully navigated earlier

that day. This court has found that the plaintiff “failed to put forth sufficient evidence to

create a question of fact as to whether [defendant] breached a duty owed to her as an

invitee” when the facts showed that “only one and one-half hours prior to her fall,

[plaintiff] had walked over the same ‘hump’ on her way to the stairs without incident.”

Provateare v. Hausman Co., 8th Dist. Cuyahoga No. 74061, 1999 Ohio App. LEXIS
1951 (Apr. 29, 1999).     See also Raflo v. Losantiville Country Club, 34 Ohio St.2d 1, 4,

295 N.E.2d 202 (1973) (“one traversing such a defect upon entering a building cannot

take the position that it was at that time so insubstantial as to go unnoticed, but became

unreasonably dangerous, hence actionable, when injuries were occasioned by it upon

exiting shortly thereafter”).

       {¶17} The facts of the case at hand are similar to the facts in Cottrell v. El Castillo

Grande Mexican Restaurant, 9th Dist. Lorain No. 09CA009624, 2010-Ohio-815. In that

case, the plaintiff entered a restaurant using the steps with no issue, then claimed “the

crowd created an attendant circumstance which distracted him and reduced the amount of

care he was able to exercise” when he descended the steps and fell.       The court rejected

plaintiff’s argument, finding that his testimony “reveals that he was being more careful

while descending the steps * * * in an attempt to steady himself while walking through

the crowd.” Id. at ¶ 12. Additionally, “this court has declined to extend the [attendant

circumstances] exception to apply to cases in which the circumstances should have led the

plaintiff to exercise heightened care for his personal safety.”    (Emphasis sic.) Bonner

v. Marc Glassman, Inc., 8th Dist. Cuyahoga No. 96924, 2012-Ohio-86, ¶ 31.

       {¶18} In reviewing the evidence that Boneyard’s party room was crowded at the

time in question, we cannot say that there is sufficient disagreement regarding whether

this amounts to an attendant circumstance that requires submission to a jury. Rather, we

determine, as a matter of law, that the stairs were an open and obvious danger of which

Humble was aware.
         {¶19} Humble’s second argument that the trial court erred by granting summary

judgment is that by violating Ohio Administrative Code 4101:1-10-01 (1003.5, exception

2), the Boneyard was necessarily negligent.     The Ohio Supreme Court has held that “the

violation of an administrative rule does not constitute negligence per se; however, such a

violation of an administrative rule may be admissible as evidence of negligence.”

Chambers v. St. Mary’s School, 82 Ohio St.3d 563, 568, 697 N.E.2d 198 (1998).

Furthermore, “the open-and-obvious doctrine may be asserted as a defense to a claim of

liability arising from a violation of the Ohio Basic Building Code.” Lang v. Holly Hill

Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d 120, ¶ 24.

         {¶20} Ohio Administrative Code 4101:1-10-01 (1003.5, exception 2) states that

a “stair with a single riser or with two risers and a tread is permitted * * * provided that *

* * at least one handrail * * * is provided within 30 inches of the centerline of the normal

path of egress travel on the stair.”   Humble’s argument concerning this section of the

Administrative Code is that, because the court granted summary judgment “without a full

opinion,” the alleged violation of this code section must not have been considered by the

court.    Specifically, Humble argues that “if the Trial Court had a basis for disregarding

the distinguishing facts at issue, it should have opined as such in its Journal Entry.”

         {¶21} Humble’s second argument lacks merit.         The trial court’s journal entry

states that “defendant is entitled to judgment as a matter of law as the underlying

condition was open and obvious.” Furthermore, pursuant to Civ.R. 52 “[f]indings of
fact and conclusions of law * * * are unnecessary upon * * * motions including those

pursuant to * * * Civ.R. 56.”

       {¶22} Accordingly, construing the facts in a light most favorable to Humble, as we

must, we find that there are no genuine issues of material fact, and Boneyard is entitled to

judgment as a matter of law.     Humble’s assigned errors are overruled and the court’s

judgment is affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to the Cuyahoga County Common Pleas

Court to carry this judgment into execution.




       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, JUDGE

EILEEN A. GALLAGHER, P.J., and
MARY J. BOYLE, J., CONCUR
