[Cite as Shipman v. Papa John's , 2014-Ohio-5092.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SHELBY COUNTY




SANDRA K. SHIPMAN,

        PLAINTIFF-APPELLANT,                             CASE NO. 17-14-17

        v.

PAPA JOHN’S, ET AL.,                                     OPINION

        DEFENDANTS-APPELLEES.




                 Appeal from Shelby County Common Pleas Court
                           Trial Court No. 13CV000117

                                     Judgment Affirmed

                         Date of Decision: November 17, 2014




APPEARANCES:

        Matthew D. Bruder for Appellant
        Christopher W. Carrigg for Appellee, S & D Limited
        Edward J. Dowd for Appellee, PJ Ohio LLC dba Papa John’s
Case No. 17-14-17



SHAW, J.

        {¶1} Plaintiff-appellant Sandra K. Shipman (“Shipman”) appeals the May

21, 2014 judgment of the Shelby County Common Pleas Court granting summary

judgment in favor of defendant-appellee PJ Ohio LLC dba Papa John’s (“Papa

John’s”) and defendant-appellee S&D Limited (“S&D”).

        {¶2} The facts relevant to this appeal are as follows. On October 12, 2011,

Shipman ordered a pizza from Papa John’s in Sidney, Ohio. She then drove to the

store, parked in the lot, exited her vehicle and walked around the front of the

vehicle into the store to pick up her pizza. After getting her pizza, she left the

store with the pizza in one hand and her keys in the other and walked toward her

vehicle. As Shipman came around her vehicle, she tripped on an uneven area in

the concrete in the parking lot and fell. Among her injuries from the fall Shipman

sustained a shattered hip, a broken femur, torn tissue and ligaments in her knee

and a fractured ankle.

        {¶3} On May 30, 2013, Shipman filed a Complaint against Papa John’s and

S&D alleging negligence.1 S&D were the owners of the premises where Shipman

fell, which had been leased to Papa John’s.




1
 Shipman’s original complaint listed some improper parties who were ultimately correctly identified as
Papa John’s and S&D as the case proceeded.

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       {¶4} On August 1, 2013, Papa John’s filed its Answer, denying that it was

negligent. On August 2, 2013, S&D filed its answer denying negligence, and also

asserting a cross-claim against Papa John’s, contending that if there was any fault,

Papa John’s was responsible for parking lot maintenance under the lease

agreement.

       {¶5} As the case proceeded, multiple depositions were taken, beginning

with Shipman. In her deposition, Shipman testified that she arrived at Papa John’s

at approximately 7:30 or 7:40 p.m. to pick up her pizza, and that it was “dusk”

when she arrived. Shipman testified that she did not pull into a designated parking

space when she arrived and that she got out of her car and went into the store.

Shipman testified that she got her pizza and then walked back into the parking lot

toward her vehicle with the pizza in one hand and her keys in the other, but before

reaching her vehicle she tripped over some raised concrete and fell. Shipman

testified that she did not look down when she was walking; rather she was looking

forward at her vehicle. She also testified that after she had fallen, she could

clearly observe the raised concrete she had tripped over. Shipman testified that

she had only been to the Papa John’s to pick up a pizza once previously, some five

years before.

       {¶6} Ricky Winals, a former employee of Papa John’s, was also deposed.

Winals testified that he was working as a delivery driver on the evening of

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Shipman’s fall, but he did not see her fall as he was out on a delivery at the time.

Winals testified that he had seen other people trip in the parking lot before, but he

had never seen anyone actually fall.        Winals testified that the Papa John’s

employees occasionally mentioned to customers to watch their step if they had

tripped on the way into the store.

        {¶7} Winals testified that the parking lot’s condition with the cracks in the

concrete were very obvious to him. In addition, Winals testified that Shipman had

been in to pick up a pizza 3-4 times before, but he did not recall when.

        {¶8} A man named John Rowland was also deposed. Rowland testified

that he had been running with a friend when he tripped and fell in the Papa John’s

parking lot in 2006. Rowland testified that he had tripped over some raised

concrete. Rowland testified that he spoke with an attorney and had his unpaid

medical bills ultimately covered, though he was not sure where the money came

from.

        {¶9} Gertrude Bushman, a claim representative for Auto Owner’s

Insurance, was also deposed. Bushman testified that her insurance company paid

the claim made by John Rowland back in 2006 in the amount of roughly $576 for

his unpaid medical bills. Bushman also testified that she investigated Shipman’s

fall. Bushman testified that she came out to the parking lot to take pictures and

measurements of the cracks and deviations in the concrete, but was unsure exactly

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where Shipman fell. Bushman testified that she could see open and obvious

cracks and deviations in the concrete in the parking lot when she pulled in.

Bushman testified that she measured the crack where she thought Shipman fell and

determined it was approximately an inch and a half. Bushman testified that the

cracks in the lot were open and obvious.

       {¶10} Heather Ford, a former District Manager at Papa John’s was

deposed. Ford testified that she had never received any complaints about Papa

John’s lot and that any deviations in the concrete of the parking lot were obvious.

       {¶11} Lastly, David Jones, the owner of the property was deposed. Jones

testified that according to the lease he executed with Papa John’s, Papa John’s was

responsible for maintaining the parking lot and the building. Jones testified that he

did not think that the problems in the parking lot were bad, and that the concrete

merely had cracks in it.

       {¶12} On February 7, 2014, Papa John’s filed a motion for summary

judgment on Shipman’s claims asserting that any problems with the concrete were

open and obvious, that the pavement separation was insignificant, trivial and

unsubstantial as a matter of law being that it was less than two inches, and that

there were no attendant circumstances.

       {¶13} On February 7, 2014, S&D filed a motion for summary judgment on

Shipman’s claims and on its cross-claim against Papa John’s. S&D also claimed

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that the pavement’s conditions were open and obvious, and that any deviations

were under two inches and therefore precluded liability for both defendants. S&D

also claimed, however, that in the event that liability did exist, under the terms of

the agreement between Papa John’s and S&D, Papa John’s should be held solely

liable.

          {¶14} On May 1, 2014, Shipman filed her response arguing that the

condition of the pavement was not open and obvious. Shipman contended that she

did not see the “upheaved” portion of the concrete due to both portions of the

concrete being the same color. Shipman also argued that the parking lot was

dimly lit, making the condition harder to see. In addition, Shipman argued that the

raised concrete was not a “minor imperfection,” contending that Bushman only

measured one of many deviations in the parking lot and that Rowland had testified

in his deposition that some of the deviations were up to four inches.

          {¶15} On May 8, 2014, both S&D and Papa John’s filed reply memoranda.

          {¶16} On May 21, 2014, the trial court filed its Decision and Judgment

Entry granting the summary judgment motions of S&D and Papa John’s. The trial

court reasoned that the concrete deviations in the parking lot were open and

obvious and that the attendant circumstances alleged by Shipman, that it was dark

outside and the parking lot was dimly lit, did not “relieve Shipman of the

responsibility to watch out for herself.” Thus the trial court granted the summary

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judgment motions against Shipman and dismissed her complaint. In addition, the

trial court found that S&D’s claims against Papa John’s were rendered moot by

the disposition.

       {¶17} It is from this judgment that Shipman appeals, asserting the

following assignment of error for our review.

                   ASSIGNMENT OF ERROR
       THE TRIAL COURT ERRED IN GRANTING DEFENDANT-
       APPELLEES’ MOTION[S] FOR SUMMARY JUDGMENT.

       {¶18} In her assignment of error, Shipman argues that the trial court erred

in granting the summary judgment motions of Papa John’s and S&D. Specifically,

Shipman contends that a genuine issue of material fact existed as to whether the

condition that caused Shipman’s injury was open and obvious, and whether there

were attendant circumstances at the time of Shipman’s injuries that sufficiently

increased the danger of the condition.

                                Standard of Review

       {¶19} Appellate review of summary judgments is de novo. Martin v. Giant

Eagle, Inc., 10th Dist. Franklin No. 13AP-809, 2014-Ohio-2657, ¶ 15 citing

Titenok v. Wal–Mart Stores E., Inc., 10th Dist. Franklin No. 12AP–799, 2013–

Ohio–2745, ¶ 6. Summary judgment is proper only when the party moving for

summary judgment demonstrates: (1) no genuine issue of material fact exists, (2)

the moving parties are entitled to judgment as a matter of law, and (3) reasonable

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minds could 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 most strongly construed in its favor. Civ.R. 56; State ex rel.

Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181 (1997).

       {¶20} Pursuant to Civ.R. 56(C), the party moving for summary judgment

bears the initial burden of identifying the basis for its motion in order to allow the

opposing party a “meaningful opportunity to respond.” Mitseff v. Wheeler, 38

Ohio St.3d 112, syllabus (1988). The moving party also bears the burden of

demonstrating the absence of a genuine issue of material fact as to an essential

element of the case. Dresher v. Burt, 75 Ohio St.3d 280, 292, 1996-Ohio-107.

Once the moving party demonstrates that he is entitled to summary judgment, the

burden shifts to the non-moving party to produce evidence on any issue which that

party bears the burden of production at trial. See Civ.R. 56(E).

                               1. Open and Obvious

       {¶21} In this case, the parties both agree that Shipman was a business

invitee and that store owners owe 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.           Paschal v. Rite Aid

Pharmacy, Inc., 18 Ohio St.3d 203 (1985). However, “ ‘[t]he open-and-obvious

doctrine provides that premises owners do not owe a duty to persons entering

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those premises regarding dangers that are open and obvious.’ ” (Emphasis added.)

Pesci v. Miller, 10th Dist. Franklin No. 10AP–800, 2011–Ohio–6290, ¶ 13

(citation omitted).   “The rationale underlying this 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.’ ” Hill v. W.

Res. Catering, Ltd., 8th Dist. Cuyahoga No. 93930, 2010–Ohio–2896, ¶ 9 quoting

Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 644, 1992-Ohio-42. “When

applicable, however, the open-and-obvious doctrine obviates the duty to warn and

acts as a complete bar to any negligence claims. * * * It is the fact that the

condition itself is so obvious that it absolves the property owner from taking any

further action to protect the plaintiff.” Hill at ¶ 10.

       {¶22} In general, “[o]pen-and-obvious dangers are those not hidden,

concealed from view, or undiscoverable upon ordinary inspection[.]” Thompson

v. Ohio State Univ. Physicians, Inc., 10th Dist. Franklin No. 10AP–612, 2011–

Ohio–2270, ¶ 12.        However, an individual “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.” Id. at ¶ 12.

Thus, “[e]ven in cases where the plaintiff did not actually notice the condition



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until after he or she fell, [courts have] found no duty where the plaintiff could have

seen the condition if he or she had looked.” Id.

       {¶23} In this case, when evaluating the open and obvious arguments of the

parties the trial court found in its judgment entry that,

       [t]he evidence is clear that the condition of the parking lot was
       readily observable. The fact that it was dusk and the parking lot
       was dimly lit was also a condition readily observable.
       Additionally, and perhaps most importantly, Shipman traversed
       the very section of the parking lot going to the building and so
       had ample opportunity to become aware of the parking lot
       condition. It was only on her return that she fell. None of the
       conditions that may have contributed to the fall were hidden or
       latent.

(Doc. 185). We agree with the trial court’s analysis.

       {¶24} While Shipman contends on appeal that the concrete deviations were

the same color as the concrete making the deviations difficult to see, the witnesses

deposed who spoke to the condition of the parking lot stated that the cracks and

deviations in the pavement were readily observable. Bushman and Winals even

used the exact term “obvious” when describing how readily observable the

deviations were. (Bushman Depo. at 17); (Winals Depo. at 68). In fact, and

perhaps most conclusively, Shipman herself testified that after she fell, she looked

at the ground and could clearly observe the cracks in the pavement. (Shipman

Depo. at 50, 53).



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       {¶25} Moreover, Shipman admittedly had walked into the Papa John’s

without issue and she admittedly had not been looking at the ground as she walked

out, carrying her pizza in one hand and her keys in the other. Shipman testified

that as she walked out of the store she was looking ahead at her vehicle. The fact

that Shipman was not looking at the pavement does not alter the condition from

being open and obvious.

       {¶26} Shipman has not produced evidence to rebut the testimony presented

in the various depositions that the condition of the lot was open and obvious. No

witness testified that the cracks or deviations were difficult to see. The fact that

the concrete and the deviations were the same color does not prevent the condition

from being open and obvious, and it did not, in fact, prevent Shipman from readily

noticing the raised concrete when she was actually looking at it. Thus under these

facts we agree with the trial court that the evidence was uncontroverted that the

pavement’s condition was open and obvious. Therefore her argument on this issue

is not well-taken.

                           2. Attendant Circumstances

       {¶27} Shipman next argues that even if the pavement’s condition was open

and obvious, attendant circumstances existed such that the open and obvious

doctrine should not have applied. Specifically, Shipman argued that the parking



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lot was dimly lit and that it was dark outside, increasing the danger of the cracked

pavement.

       {¶28} “An attendant circumstance is any significant distraction that would

divert the attention of a 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. Franklin No. 11AP–290,

2012-Ohio-670, ¶ 10.

       {¶29} To serve as an exception to the open and obvious doctrine, an

attendant circumstance must be “so abnormal that it unreasonably increased the

normal risk of a harmful result or reduced the degree of care an ordinary person

would exercise.” Mayle v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No.

09AP-541, 2010-Ohio-2774, ¶ 20 quoting Cummin v. Image Mart, Inc., 10th Dist.

No. 03AP-1284, 2004-Ohio-2840, ¶ 10. “[A]ttendant circumstances are facts that

significantly enhance the danger of the hazard.” Haller, supra, at ¶ 10.

Furthermore, the attendant circumstance must be an “ ‘unusual circumstance of the

property owner's making.’ ” Id., quoting McConnell v. Margello, 10th Dist. No.

06AP–1235, 2007–Ohio–4860, ¶ 17. “Attendant circumstances do not, though,

include regularly encountered, ordinary, or common circumstances.” Colville v.

Meijer Stores Ltd. Partnership, 2d Dist. Miami No.2011–CA–011, 2012–Ohio–



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2413, ¶ 30, citing Cooper v. Meijer, 10th Dist. Franklin No. 07AP–201, 2007–

Ohio–6086, ¶ 17.

      {¶30} In this case, Shipman argues that there were attendant circumstances

in that it was dark—or “dusk” as she testified—and the parking lot was dimly lit.

We would note that many Ohio courts have recognized that darkness is an open

and obvious condition. See, e.g., McDonald v. Marbella Restaurant, 8th Dist.

Cuyahoga No. 89810, 2008–Ohio–3667, ¶ 33; Rezac v. Cuyahoga Falls Concerts,

Inc., 9th Dist. Summit No. 23313, 2007–Ohio–703; Leonard v. Modene and

Assoc., Inc., 6th Dist. Wood No. WD–05–085, 2006–Ohio–5471; Swonger v.

Middlefield Village Apts., 11th Dist. Geauga No.2003–G–2547, 2005–Ohio–941, ¶

13; McCoy v. Kroger Co., 10th Dist. Franklin No. 05AP–7, 2005–Ohio–6965, ¶

16; Godwin v. Erb, 167 Ohio App.3d 645, 652, 2006-Ohio-3638 (5th Dist.). See

also Jeswald v. Hutt, 15 Ohio St.2d 224 (1968), paragraph three of the syllabus

(“[d]arkness is always a warning of danger, and for one’s own protection it may

not be disregarded”). Further, Ohio courts have found that darkness is a naturally

occurring event and thus is not an attendant circumstance. Huey v. Neal, 3d Dist.

Allen No 1-02-79, 2003-Ohio-391, ¶ 12; see also, McCoy v. Kroger Co., 10th

Dist. Franklin No. 05AP-7, 2005-Ohio-6965, ¶ 16. In fact, courts have held that

darkness increases rather than reduces the degree of care an ordinary person

would exercise. McCoy, supra. Thus based on the caselaw we cannot find that

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the fact that it was “dusk” when Shipman fell was an attendant circumstance in

this case circumventing the open and obvious nature of the defects in the

pavement.

       {¶31} Lastly, Shipman argues that the parking lot was dimly lit, and that

the dimly lit parking lot was an attendant circumstance. However, Ohio Courts

have found that there is no obligation for a business owner to illuminate the

parking area. Gates v. Speedway Superamerica, L.L.C., 8th Dist. Cuyahoga No.

90563, 2008–Ohio–5131, ¶ 18 (“Speedway did not owe [Plaintiff] a duty to

adequately light the [parking lot] area[.]); Scheetz v. Kentwood, Inc., 152 Ohio

App.3d 20, 11th Dist. Portage No. 2002-P-0043, 2003–Ohio–1209, ¶ 10 (‘because

appellee had no duty to provide lighting in the restaurant parking lot, it could not

have breached any such duty by failing to illuminate its parking lot on the night

[plaintiff] fell’); Meilink v. AAA Northeast Ohio (Dec. 4, 1998), Lucas App. No.

L–98–1139 1998 WL 833570 (no duty to provide adequate lighting even if owner

undertakes to provide some light in parking lot); Collier v. Libations Lounge,

L.L.C., 8th Dist. Cuyahoga No. 97504, 2012-Ohio-2390, ¶20 (“appellees owed no

duty to provide lighting”). Therefore, we cannot find that the dimly lit parking lot

was an attendant circumstance. Nevertheless, we would note that the “dimly lit”

parking lot did not appear to prevent Shipman from readily observing the cracked

pavement once she had fallen and was actually looking at the ground.

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Accordingly, Shipman’s assignment of error is not-well taken and it is therefore,

overruled.

       {¶32} For the foregoing reasons Shipman’s assignment of error is overruled

and the summary judgment of the Shelby County Common Pleas Court is

affirmed.


                                                             Judgment Affirmed

WILLAMOWSKI, P.J. and ROGERS, J., concur.

/jlr




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