[Cite as Moyer v. Brown, 2019-Ohio-825.]




                        THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SENECA COUNTY




LINDA MOYER, ET AL.,
                                                        CASE NO. 13-18-37
         PLAINTIFFS-APPELLANTS,

    v.

MCCLELLAND J. BROWN
LIVING TRUST, ET AL.,                                   OPINION

         DEFENDANTS-APPELLEES.



                 Appeal from Seneca County Common Pleas Court
                           Trial Court No. 17-CV-0311

                                    Judgment Affirmed

                           Date of Decision: March 11, 2019



APPEARANCES:

         Jeffrey Swiech for Appellants

         Clark D. Rice for Appellee, McClelland J. Brown Living Trust
Case No. 13-18-37


WILLAMOWSKI, J.

       {¶1} Plaintiffs-appellants Linda L. Moyer (“Linda”) and Daniel N. Moyer

(collectively “the Moyers”) appeal the judgment of the Seneca County Court of

Common Pleas for granting the defendant’s motion for summary judgment. For the

reasons set forth below, the judgment of the trial court is affirmed.

                           Facts and Procedural History

       {¶2} On October 19, 2015, Linda was going to the Bureau of Motor Vehicles

(“BMV”) in Tiffin, Ohio. Tr. 12. The BMV is located on a property that is owned

by the McClelland J. Brown Living Trust (“the Brown Trust”). Doc. 53. Linda

pulled her car into a handicapped parking space in front of the BMV. Tr. 71. She

alleges that, as she was getting out of her car, she stepped into a pothole and fell.

Tr. 66. As the result of this fall, Linda lacerated her knee and fractured her ankle.

Tr. 82-83, 91. She also damaged an implanted pain stimulator, which required a

surgical intervention to repair. On October 18, 2017, the Moyers filed a personal

injury action against the Trust. Doc. 2. The Brown Trust filed a motion for

summary judgment on June 1, 2018, arguing that this pothole was an open and

obvious condition. Doc. 43. The trial court granted the Brown Trust’s motion for

summary judgment on October 23, 2018. Doc. 58.

                                Assignment of Error

       {¶3} Appellants filed their notice of appeal on November 13, 2018. Doc. 59.

On appeal, appellants raises the following assignment of error:

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       The trial court erred where it granted summary judgment in
       favor of McClelland J. Brown Living Trust.

The Moyers argue that the question of whether the pothole was an open and obvious

condition is a genuine issue of material fact that remains in dispute.

                                   Legal Standard

       {¶4} Appellate courts consider a summary judgment order under a de novo

standard of review. James B. Nutter & Co. v. Estate of Neifer, 3d Dist. Hancock

No. 5-16-20, 2016-Ohio-7641, ¶ 5. Since the use of this procedural device ends the

legal proceeding in its initial stages, a motion for summary judgment must be

granted with caution. Ditech Financial, LLC v. Akers, 3d Dist. Union No. 14-18-

02, 2018-Ohio-2874, ¶ 7. Under the Ohio Rules of Civil Procedure,

       [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
       of material fact and that the moving party is entitled to judgment
       as a matter of law * * *. 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.

Civ.R. 56(C). “The party moving for summary judgment has the initial burden ‘to

inform the trial court of the basis for the motion, identifying the portions of the

record, including the pleadings and discovery, which demonstrate the absence of a

genuine issue of material fact.’” Middleton v. Holbrook, 3d Dist. Marion No. 9-15-

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47, 2016-Ohio-3387, ¶ 8, quoting Reinbolt v. Gloor, 146 Ohio App.3d 661, 664,

767 N.E.2d 1197 (3d Dist. 2001).

       {¶5} “The burden then shifts to the party opposing the summary judgment.”

Id. “In order to defeat summary judgment, the nonmoving party may not rely on

mere denials but ‘must set forth specific facts showing that there is a genuine issue

for trial.’” Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10,

quoting Civ.R. 56(E). “The court must thus construe all evidence and resolve all

doubts in favor of the non-moving party * * *.” Bates Recycling, Inc. v. Conaway,

2018-Ohio-5056, --- N.E.3d ---, ¶ 11 (3d Dist.), quoting Webster v. Shaw, 2016-

Ohio-1484, 63 N.E.3d 677, ¶ 8 (3d Dist.).

       {¶6} “To prevail in a negligence action, a plaintiff must demonstrate that (1)

the defendant owed a duty of care to the plaintiff, (2) the defendant breached that

duty, and (3) the defendant’s breach proximately caused the plaintiff to be injured.”

Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d

120, ¶ 10. In a negligence case alleging premises liability, “the status of the person

who enters upon the land of another (i.e., trespasser, licensee, or invitee) continues

to define the scope of the legal duty that the landowner owes the entrant.” Gladon

v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315, 662 N.E.2d

287 (1996). “Invitees are persons who rightfully come upon the premises of another

by invitation, express or implied, for some purpose which is beneficial to the

owner.” Id. “A shopkeeper ordinarily owes its business invitees a duty of ordinary

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care in maintaining the premises in a reasonably safe condition and has the duty to

warn its invitees of latent or hidden dangers.” Armstrong v. Best Buy Co., Inc., 99

Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 5.

      {¶7} “When applicable, however, the open-and-obvious doctrine obviates

the duty to warn and acts as a complete bar to any negligence claims.” Id. “The

‘open and obvious’ doctrine states that an owner or occupier of property owes no

duty to warn invitees entering the property of open and obvious dangers on the

property.” Howard v. Meat City, Inc., 3d Dist. Allen No. 1-16-32, 2016-Ohio-7989,

¶ 10, quoting Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 644, 597 N.E.2d

504 (1992).

      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 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.

Shipman v. Papa John’s, 3d Dist. Shelby No. 17-14-17, 2014-Ohio-5092, ¶ 22.

      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.’

Armstrong at ¶ 5, quoting Simmers at 644.

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       {¶8} However, the open and obvious doctrine will not be applied if the

attendant circumstances exception applies. “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.

       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. [Franklin] 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-2413, ¶ 30, citing Cooper v. Meijer, 10th Dist. Franklin
       No. 07AP-201, 2007-Ohio-6086, ¶ 17.

Shipman at ¶ 29. “An attendant circumstance is usually an active event as opposed

to a static condition.” Carnes v. Siferd, 3d Dist. Allen No. 1-10-88, 2011-Ohio-

4467, ¶ 17. “The attendant circumstances must * * * divert the attention of the

pedestrian * * * and contribute to the fall.” (Emphasis added.) Smith v. House of

Hunan, 3d Dist. Marion No. 9-07-54, 2008-Ohio-1783, ¶ 7, quoting Huey v. Neal,

152 Ohio App.3d 146, 2003-Ohio-391, 787 N.E.2d 23, ¶ 10 (3d Dist.).

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Case No. 13-18-37


                                            Legal Analysis

        {¶9} In this case, Linda was an invitee as she was going to this property for

the purpose of transacting business at the BMV. Tr. 70. Thus, the owner of these

premises had a duty to warn Linda only of dangerous conditions that are “latent and

hidden” and is not liable for negligence claims arising from open and obvious

conditions. Armstrong, supra, at ¶ 5. At a deposition, Linda testified that she drove

to the BMV in the morning and that the parking lot was “well lit.” Tr. 66. She also

stated that the weather was not inclement and that the parking lot was not icy. Tr.

66.    Linda said that she pulled into a handicapped parking space in front of the

BMV. Tr. 73.

        {¶10} Linda then testified that she did not look at the pavement before she

set her left foot on the ground outside of her car. Tr. 76. She stated that she could

not recall whether she looked at the pavement before she put her right foot on the

ground outside of her car.1 Tr. 78. She also was not wearing her glasses at the time

she was exiting her vehicle. Tr. 76-77. After she had both of her feet on the ground,

she shut her car door. Tr. 76. She then stumbled over a pothole in the parking lot

and fell to the ground. Tr. 76.




1
  During the deposition, Linda was asked whether she looked at the pavement before she stepped onto the
ground outside of her car. She responded by saying: “when I got out of my car and my right foot got out, no,
I didn’t, I did not.” Tr. 77. However, she was later asked whether she looked at the pavement before she put
her right foot on the ground and stated that she did not recall. Tr. 78.

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       {¶11} She said at the deposition that she fell “exclusively” because of the

pothole and that there was no debris, litter, moisture, rubbish, or oil around the

pothole that contributed to her fall. Tr. 104. She said the hole was three inches deep

and large enough for her to fit her shoe inside of it. Tr. 103. She also said she could

see the hole after she fell. Tr. 103. Linda’s testimony does not establish that the

pothole was undiscoverable or hidden. Rather, the evidence in the record indicates

that this large pothole was observable. “The fact that [Linda] was not looking at the

pavement does not alter the condition from being open and obvious.” Howard,

supra, at ¶ 19, quoting Shipman, supra, at ¶ 25.

       {¶12} In their brief, appellants argue that the attendant circumstances

exception to the open and obvious doctrine applies in this case. Appellants point to

the fact that the appellees, in this case, designated the handicapped parking space

and directed people with disabilities to use this specific spot to park their cars. We

begin our analysis of this argument by noting that the pothole was not in the

handicapped parking space but was in the adjacent parking space. Ex. B, C, D, I.

Linda’s testimony indicated that she got out of her vehicle, shut the car door, and

then fell because of the pothole. Thus, while this argument is framed around the

condition of the handicapped parking space, the complaint, in fact, arises from the

condition of the parking lot outside of the handicapped parking space.

       {¶13} Further, the designation of a handicapped parking space is not

abnormal. Similarly, a pothole located in an area near a handicapped parking space

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is also not abnormal. Potholes in parking lots—located around handicapped parking

spaces or regular parking spaces—are “regularly encountered, ordinary, [and]

common circumstances.” Colville, supra, at ¶ 30. Critically, the evidence in the

record does not indicate that the handicapped parking space “divert[ed] [Linda’s]

attention” from the pothole. Smith, supra, at ¶ 7. Linda testified that she fell

“exclusively” because of the pothole and did not cite any of markings that

designated the parking space as conditions that diverted her attention from the

surface of the pavement. Tr. 104. We also note that the designation of the

handicapped parking space was “a static condition” on the premises and not “an

active event,” further distinguishing the designation of a handicapped parking space

from the typical attendant circumstance. Carnes at ¶ 17.

       {¶14} Based on Linda’s deposition testimony, there is no genuine issue of

material fact as to whether the pothole was an open and obvious condition—“that

is, the hole was observable and was not hidden, concealed from view, or

undiscoverable.” Howard, supra, at ¶ 19. Further, Linda’s arguments do not

establish that the attendant circumstance exception is applicable to this case. Thus,

this negligence claim must fail. For these reasons, we find that the trial court did

not err in granting the Brown Trust’s motion for summary judgment.               The

appellants’ sole assignment of error is overruled.




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                                   Conclusion

       {¶15} Having found no error prejudicial to the appellants in the particulars

assigned and argued, the judgment of the Seneca County Court of Common Pleas is

affirmed.

                                                              Judgment Affirmed

ZIMMERMAN, P.J. and PRESTON, J., concur.

/hls




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