[Cite as Yockey v. Best Buy Co., Inc, 2014-Ohio-4330.]


STATE OF OHIO                     )                           IN THE COURT OF APPEALS
                                  )ss:                        NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                   )

LOUISE YOCKEY, et al.                                         C.A. No.   13CA0027

        Appellants

        v.                                                    APPEAL FROM JUDGMENT
                                                              ENTERED IN THE
BEST BUY CO., INC.                                            COURT OF COMMON PLEAS
                                                              COUNTY OF WAYNE, OHIO
        Appellee                                              CASE No.   12-CV-0490

                                 DECISION AND JOURNAL ENTRY

Dated: September 30, 2014



        BELFANCE, Presiding Judge.

        {¶1}     Plaintiffs-Appellants Louise and Larry Yockey appeal from the judgment of the

Wayne County Court of Common Pleas granting summary judgment in favor of Defendant Best

Buy Co., Inc. For the reasons set forth below, we reverse.

                                                         I.

        {¶2}     On the afternoon of March 2, 2009, husband and wife, Mr. and Mrs. Yockey

visited the Wooster Best Buy to return a printer. To enter the store, they had to pass through a

set of automatic doors with tinted glass into a vestibule area. They had to then turn to the right

whereupon they encountered another set of automatic glass doors that opened into the main part

of the store. There was a rug in the vestibule area of the store. Mr. Yockey carried the printer

and walked into the store 3-5 steps ahead of Mrs. Yockey. When Mrs. Yockey entered the

vestibule area, she immediately tripped on the rug, fell, and broke her hip. Upon hearing his
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wife scream, Mr. Yockey looked back, saw his wife on the ground, and noticed several ripples in

the rug.

       {¶3}    In June 2012, Mr. and Mrs. Yockey re-filed a complaint against Best Buy alleging

that Best Buy’s negligence caused Mrs. Yockey’s injuries and, in addition, that Mr. Yockey

suffered a loss of consortium as a result of Best Buy’s negligence. Best Buy filed a motion for

summary judgment, asserting that the hazard was open and obvious and, thus, Best Buy owed no

duty. The Yockeys opposed the motion; however, the trial court awarded summary judgment to

Best Buy. The Yockeys have appealed, raising a single assignment of error for our review.

                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR
       BEST BUY WHERE THERE EXIST GENUINE ISSUES OF MATERIAL
       FACT THAT MADE SUMMARY JUDGMENT WHOLLY INAPPROPRIATE.

       {¶4}    In the Yockeys’ sole assignment of error they maintain that the trial court erred in

granting summary judgment to Best Buy because genuine issues of material fact remain with

respect to whether the ripples in the rug were open and obvious. We agree.

       {¶5}    In reviewing a trial court’s ruling on a motion for summary judgment, “[w]e apply

the same standard as the trial court, viewing the facts of the case in the light most favorable to

the non-moving party and resolving any doubt in favor of the non-moving party.” Garner v.

Robart, 9th Dist. Summit No. 25427, 2011-Ohio-1519, ¶ 8. Pursuant to Civ.R. 56(C), summary

judgment is appropriate when:

       (1) No genuine issue as to any material fact remains to be litigated; (2) the
       moving party is entitled to judgment as a matter of law; and (3) it appears from
       the evidence that reasonable minds can come to but one conclusion, and viewing
       such evidence most strongly in favor of the party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.
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Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). To succeed on a summary

judgment motion, the movant bears the initial burden of demonstrating that there are no genuine

issues of material fact concerning an essential element of the opponent’s case. Dresher v. Burt,

75 Ohio St.3d 280, 292 (1996). If the movant satisfies this burden, the nonmoving party “‘must

set forth specific facts showing that there is a genuine issue for trial.’” Id. at 293, quoting Civ.R.

56(E).

         {¶6}   “To prevail in a negligence action, the plaintiff must show (1) the existence of a

duty, (2) a breach of that duty, and (3) an injury proximately resulting from the breach.”

Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, ¶ 21. “The owner or occupier of

premises is not an insurer of the safety of his invitees, but he does owe a duty to exercise

ordinary or reasonable care for their protection.” Jackson v. Kings Island, 58 Ohio St.2d 357,

359 (1979). “This includes the duty to warn patrons of dangerous conditions known to, or

reasonably ascertainable by, a proprietor which a patron should not be expected to discover or

protect himself against.” Id. There is no dispute that Mrs. Yockey was an invitee of Best Buy.

         {¶7}   “The owner must protect the business invitee by maintaining the premises in a

safe condition. Yet, an owner owes no such duty to a business invitee when the danger at issue

is open and obvious.” (Internal quotations and citations omitted.) Baker v. Bob Evans Farms,

Inc., 9th Dist. Wayne No. 13CA0023, 2014-Ohio-2850, ¶ 10. “An open and obvious danger acts

as a complete bar to any negligence claims * * *[; h]owever, where a danger is not open and

obvious, an owner owes a duty * * * to warn any invitees of latent or concealed defects of which

the [owner] has or should have knowledge.” (Internal quotations and citations omitted.) Id.

         {¶8}   We analyze “the totality of the circumstances to determine if the danger is open

and obvious as a matter of law. Thus, the issue before us is whether, considering the totality of
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the circumstances, a genuine issue of material fact exists regarding whether a reasonable person

would have discovered the [hazard,] i.e. whether that hazard was open and obvious.” (Internal

quotations and citations omitted.) Tucker v. Dennis Baughman,Co., Ltd., 9th Dist. Summit Nos.

26620 & 26635, 2014-Ohio-2040, ¶ 15. In so doing, we consider “both the nature of the

dangerous condition and any attendant circumstances that may have existed at the time of the

injury.” (Internal quotations and citation omitted.) Baker at ¶ 11. “Attendant circumstances

include any distraction that would come to the attention of a [person] in the same circumstances

and reduce the degree of care an ordinary person would exercise at the time.”              (Internal

quotations and citations omitted.) Id. “‘Not surprisingly, whether a particular danger is open

and obvious depends heavily on the particular facts of the case.’” Tucker at ¶ 15, quoting

Hissong v. Miller, 186 Ohio App.3d 345, 2010-Ohio-961 (2d Dist.), ¶ 10.

       {¶9}    The Yockeys in their complaint asserted that Mrs. Yockey “tripped over the

rippled and bunched up rug and fell.” They further alleged that Best Buy “knew or should have

known of [the] rug inside the entrance of the store which had become rippled and bunched up,

thereby creating a dangerous condition for business invitees of this store.”

       {¶10} Mr. and Mrs. Yockey went to Best Buy on the afternoon of March 2, 2009, to

return a printer that Mrs. Yockey did not like. The Yockeys had been to this particular Best Buy

store on many occasions prior to this visit. Mr. Yockey indicated that he knew his wife walked

in behind him, but he could not say how far behind him she was. Mrs. Yockey testified that she

was approximately 3-5 steps behind him. To enter the store, patrons have to pass through a set

of automatic doors with tinted glass into a vestibule area. They have to then turn to the right

whereupon they encounter another set of automatic glass doors that open into the main part of

the store. At the time of the accident, there was a rug in the vestibule area of the store. Pictures
                                                 5


documenting the appearance of the Best Buy entrance were included in the summary judgment

materials which evidence the tinted nature of the exterior glass.

       {¶11} Describing the entryway to the store, Mr. Yockey stated that, “[t]he doors fly

open; I just walked in. And then other doors fly open, and I turned this way, and the guy put a

sticker on [the printer], because I was returning something.” Mr. Yockey then heard Mrs.

Yockey yell, and he turned and saw “her going down” and asked her what she was doing. Mrs.

Yockey told him that she “tripped over that rug.” Upon looking at the area where Mrs. Yockey

fell, Mr. Yockey then noticed the rug in the vestibule area. Mr. Yockey stated that the rug “was

in shambles [and] had about three or four loops.” Prior to seeing his wife on the ground, neither

Mr. or Mrs. Yockey had noticed the rug or the loops in it. However, Mr. Yockey stated that

nothing was covering the rug and that one could have seen the rug if one was looking for it.

Both Mr. and Mrs. Yockey testified that they did not believe that they created the ripples in the

rug.

       {¶12} Mrs. Yockey testified that, as she was walking in behind her husband, she noticed

the red washer and dryer and “signs all over the place.” As they had been to the Best Buy on

numerous occasions before, Mrs. Yockey indicated that she had seen this particular washer and

dryer previously. Mrs. Yockey testified that the doors to the store “just open up, and you walk

in.” She further stated that, on this occasion, she “just walked in the door when they opened.”

She indicated that she was not looking at the ground as she walked in, and, instead, was

“look[ing] at all the signs[.]” She stated that she fell during “the first basic step” going into the

vestibule area. She tried to catch herself on the washer and dryer but was unable to do so.

       {¶13} Thomas Piper, who at the time of the accident was an asset protection associate at

Best Buy, was working the day Mrs. Yockey was injured. He was stationed at the counter
                                               6


immediately adjacent to the second set of automatic doors near the store entrance. His job duties

included, “catch[ing] shoplifters, contact[ing] customers when they needed help, to make sure no

trip hazards were occurring at the time, make sure * * * the sidewalk outside was * * * salted in

the wintertime,” and to tag items being returned. In addition, he would announce “hot zone

checks” which would require employees in different areas to check for shoplifters and to look for

safety issues in their areas. While not specifically required of him, outside of the hot zone

checks, Mr. Piper would go out into the vestibule area every 15 to 20 minutes to check the rug

and make sure there were no rolls in it and to sweep up the area. He acknowledged that the rug

in that area would periodically get ripples and rolls in it and that it was a common problem. Mr.

Piper testified that he remembered checking the rug “right before [Mrs. Yockey] walked in.” At

that time, he did not notice anything wrong with it and so he “took [his] foot, wiped it, ma[d]e

sure it’s okay and then [] went back inside.” The customer experience manager at the time of

the accident, Nathan Bryant, testified that checking the vestibule area during a hot zone check

would have been the responsibility of the asset protection person. Mr. Bryant testified that he

did not notice anything out of place with the rug upon coming to the area following Mrs.

Yockey’s fall.

       {¶14} Considering the entirety of the summary judgment materials, and viewing them in

light most favorable to the Yockeys, we conclude that the trial court erred in concluding the

hazard Mrs. Yockey encountered upon entering the vestibule was open and obvious as a matter

of law. This Court determines a genuine dispute of material fact remains with respect to whether

the hazard was open and obvious.

       {¶15} Best Buy and the trial court relied primarily on this Court’s opinion in Alfonso v.

Marc Glassman, Inc., 9th Dist. Summit No. 24604, 2009-Ohio-5149, in concluding that the
                                                 7


condition of the rug was open and obvious. However, the facts of this case are distinguishable

from those in Alfonso. Ms. Alfonso fell after taking a couple steps on the rug/carpet at issue, see

id. at ¶ 14, whereas Mrs. Yockey immediately fell upon taking her first step into the vestibule.

Further, there was evidence in the record in Alfonso that the hump in the carpet was visible to the

average person walking into the store. See id. at ¶ 15. In the instant matter, there was no

testimony from anyone walking behind Mrs. Yockey concerning the state of the rug at the time

Mrs. Yockey fell. Instead, here, the record evidences that Mrs. Yockey was following her

husband into the store and that he successfully navigated the entryway without observing

anything about the rug. Finally, there was nothing in Alfonso that indicated that there was tinted

glass at the entranceway to Marc’s, whereas the record in this matter is clear that outside glass of

Best Buy is tinted.

       {¶16} The fact that there was nothing obscuring the rug or that the rug itself would have

been visible if the Yockeys had been looking down is not dispositive of whether the ripples in

the rug would have been observable to Mrs. Yockey as she was walking in the store. Given that

the glass of the Best Buy entryway was tinted and that Mrs. Yockey fell immediately upon

entering the vestibule area, it is not clear that the ripples would have been open and obvious to

Mrs. Yockey. Given the totality of the circumstances and viewing them in a light most favorable

to the Yockeys, we conclude that there remains a dispute of fact with respect to whether the

hazard presented by the rug was open and obvious.          See Tucker, 2014-Ohio-2040, at ¶ 15

(“[T]he issue before us is whether, considering the totality of the circumstances, a genuine issue

of material fact exists regarding whether a reasonable person would have discovered the

[hazard,] i.e. whether that hazard was open and obvious.”). Summary judgment based upon the

open and obvious doctrine was, therefore, inappropriate.
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       {¶17} In light of the foregoing, we sustain the Yockeys’ assignment of error.

                                                III.

       {¶18} The judgment of the Wayne County Court of Common Pleas is reversed.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                       EVE V. BELFANCE
                                                       FOR THE COURT




CARR, J.
CONCURS.
                                                9


HENSAL, J.
DISSENTING.

       {¶19} I do not believe the Plaintiff raised any issue of fact in this case sufficient to find

it materially distinguishable from Alfonso or Smock v. Bob Evans Farms, Inc., 9th Dist. Lorain

No. 02CA008075, 2003-Ohio-832. I, therefore, would affirm the judgment of the trial court.


APPEARANCES:

J. JEFFREY HECK, Attorney at Law, for Appellants.

TODD A. GRAY and JEFFREY E. DUBIN, Attorneys at Law, for Appellee.
