[Cite as Lambert v. Sack 'N Save, Inc., 2012-Ohio-4686.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                               ROSS COUNTY

KRISTIN J. LAMBERT,             :
                                :
     Plaintiff-Appellant,       : Case No. 12CA3319
                                :
     vs.                        : Released: September 28, 2012
                                :
SACK ‘N SAVE, INC. et al.,      : DECISION AND JUDGMENT
                                : ENTRY
    Defendants-Appellees.       :
_____________________________________________________________
                          APPEARANCES:

J. Jeffrey Benson, Benson & Benson, LLC, Chillicothe, Ohio, for Appellant.

James M. Roper, Isaac, Brant, Ledman & Teetor, LLP, Columbus, Ohio, for
Appellee, Sack ‘N Save, Inc.
_____________________________________________________________

McFarland, J.:

        {¶1}This is an appeal of the decision of the Ross County Court of

Common Pleas granting summary judgment in favor of Appellee, Sack ‘N

Save, Inc. On appeal, Appellant Kristin J. Lambert, contends that the trial

court erred when it granted Appellee’s motion for summary judgment, and

when it entered judgment against Appellant. In light of our finding that no

genuine issue of material fact remains to be litigated at trial as to whether the

condition at issue herein was open and obvious, we cannot conclude that the

trial court erred in granting summary judgment in Appellee’s favor. Thus,
Ross App. No. 12CA3319                                                                                          2

Appellant’s sole assignment of error lacks merit. Accordingly, the decision

of the trial court is affirmed.

                                                 FACTS

         {¶2} On September 6, 2007, Appellant, Kristin Lambert, suffered an

injury after hitting her arm on a shopping cart at Appellee, Sack ‘N Save,

Inc. and sustaining a cut near her elbow. Appellant notified the cashier, who

gave her a band aid, and she then left the store. When the wound failed to

heal on its own, Appellant sought medical treatment and was admitted to the

hospital and treated with IV antibiotics for a staph infection. Appellant

eventually underwent two surgeries.

         {¶3} On September 10, 2010, Appellant filed a complaint against

Appellee asserting a negligence claim.1 Appellee filed a motion for

summary judgment on October 31, 2011, arguing that no genuine issue of

material fact remained as to their liability. Appellee specifically argued that

the condition of the shopping cart at issue was open and obvious and thus,

that it owed no duty of care to Appellant. Although Appellant opposed the

motion for summary judgment, after consideration of the matter, the trial

court granted summary judgment in favor of Appellee. It is from this


1
  The record reflects that this case was originally filed in 2008, and also named Hays Enterprises, Inc., the
manufacturer of the shopping cart, as a defendant. However, that case was voluntarily dismissed and then
re-filed in 2010, again naming both Appellee and Hays Enterprises as defendants. Appellant settled her
claims with Hays during the trial court proceedings and those claims are not at issue on appeal.
Ross App. No. 12CA3319                                                           3

decision that Appellant now brings her timely appeal, setting forth a sole

assignment of error for our review.

                        ASSIGNMENT OF ERROR

“I.   THE TRIAL COURT ERRED WHEN IT GRANTED THE MOTION
      FOR SUMMARY JUDGMENT FILED BY DEFENDANT, SACK
      ‘N SAVE, INC. AND WHEN IT ENTERED JUDGMENT
      AGAINST PLAINTIFF.”

                            LEGAL ANALYSIS

      {¶4} In her first assignment of error, Appellant contends that the trial

court erred when it granted the motion for summary judgment in favor of

Appellee, and when it entered judgment against Appellant. More

specifically, Appellant argues that summary judgment was improper because

the shopping cart did not contain an open and obvious danger. She further

alleges Appellee owed a duty to maintain its shopping carts in a safe

condition. We begin by considering the framework within which we must

consider the arguments raised by Appellant.

                  SUMMARY JUDGMENT STANDARD

      {¶5} Initially, we note that appellate courts conduct a de novo review

of trial court summary judgment decisions. See, e.g., Grafton v. Ohio Edison

Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Accordingly, an

appellate court must independently review the record to determine if

summary judgment is appropriate and need not defer to the trial court's
Ross App. No. 12CA3319                                                      4

decision. See Brown v. Scioto Bd. of Commrs., 87 Ohio App.3d 704, 711,

622 N.E.2d 1153 (1993); Morehead v. Conley, 75 Ohio App.3d 409, 411-12,

599 N.E.2d 786 (1991). Thus, to determine whether a trial court properly

granted a summary judgment motion, an appellate court must review the

Civ.R. 56 summary judgment standard, as well as the applicable law.

      Civ. R. 56(C) provides, in relevant part, as follows:

      * * * Summary judgment shall be rendered forthwith if the

      pleadings, depositions, answers to interrogatories, written

      admissions, affidavits, transcripts of evidence in the pending

      case, and written stipulations of fact, if any, timely filed in the

      action, show that there is no genuine issue as to any material

      fact and that the moving party is entitled to judgment as a

      matter of law. No evidence or stipulation may be considered

      except as stated in this rule. 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.
Ross App. No. 12CA3319                                                            5

      {¶6} Thus, pursuant to Civ.R. 56, a trial court may not award

summary judgment unless the evidence demonstrates that: (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) reasonable minds can come

to but one conclusion, and after viewing such evidence most strongly in

favor of the nonmoving party, that conclusion is adverse to the party against

whom the motion for summary judgment is made. See, e.g., Vahila v. Hall,

77 Ohio St.3d 421, 429-30, 674 N.E.2d 1164 (1997).

                                NEGLIGENCE

      {¶7} A successful negligence action requires a plaintiff to establish

that: (1) the defendant owed the plaintiff a duty of care; (2) the defendant

breached the duty of care; and (3) as a direct and proximate result of the

defendant's breach, the plaintiff suffered injury. See, e.g., Texler v. D.O.

Summers Cleaners, 81 Ohio St.3d 677, 680, 693 N.E.2d 217 (1998); Jeffers

v. Olexo, 43 Ohio St.3d 140, 142, 539 N.E.2d 614 (1989); Menifee v. Ohio

Welding Products, Inc., 15 Ohio St.3d 75, 472 N.E.2d 707 (1984). If a

defendant points to evidence to illustrate that the plaintiff will be unable to

prove any one of the foregoing elements, and if the plaintiff fails to respond

as Civ.R. 56 provides, the defendant is entitled to judgment as a matter of
Ross App. No. 12CA3319                                                        6

law. See Lang v. Holly Hill Motel, Inc., 4th Dist. No. 06CA18, 2007-Ohio-

3898, ¶ 19, affirmed, 122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d 120.

      {¶8} The existence of a defendant's duty is a threshold question in a

negligence case. See Armstrong v. Best Buy Company, Inc., 99 Ohio St.3d

79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 13. In a premises liability case, the

relationship between the owner or occupier of the premises and the injured

party determines the duty owed. See, e.g., Gladon v. Greater Cleveland

Regional Transit Auth., 75 Ohio St.3d 312, 315, 662 N.E.2d 287 (1996);

Shump v. First Continental-Robinwood Assocs., 71 Ohio St.3d 414, 417, 644

N.E.2d 291 (1994). In the case at bar, the parties do not dispute that

Appellant was a business invitee.

      {¶9} A premises owner or occupier possesses the duty to exercise

ordinary care to maintain its premises in a reasonably safe condition, such

that business invitees will not unreasonably or unnecessarily be exposed to

danger. Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 480 N.E.2d

474 (1985). A premises owner or occupier is not, however, an insurer of its

invitees' safety. Id. While the premises owner must warn its invitees of latent

or concealed dangers if the owner knows or has reason to know of the

hidden dangers, invitees are expected to take reasonable precautions to avoid

dangers that are patent or obvious. Jackson v. Kings Island, 58 Ohio St.2d
Ross App. No. 12CA3319                                                             7

357, 358, 390 N.E.2d 810 (1979); see also, Brinkman v. Ross, 68 Ohio St.3d

82, 84, 623 N.E.2d 1175 (1993); Sidle v. Humphrey, 13 Ohio St.2d 45, 233

N.E.2d 589, paragraph one of the syllabus (1968).

      {¶10} Therefore, when a danger is open and obvious, a premises

owner owes no duty of care to individuals lawfully on the premises. See

Armstrong, at ¶ 5; Sidle, paragraph one of the syllabus. By focusing on duty,

“the rule properly considers the nature of the dangerous condition itself, as

opposed to the nature of the plaintiff's conduct in encountering it.”

Armstrong at ¶ 13. The underlying rationale 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.” Id. at ¶ 5.

“The fact that a plaintiff was unreasonable in choosing to encounter the

danger is not what relieves the property owner of liability. Rather, 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.” Id. at ¶ 13. Thus, the

open and obvious doctrine obviates the duty to warn and acts as a complete

bar to recovery. Id. at ¶ 5. Furthermore, the issue of whether a hazard is open

and obvious may be decided as a matter of law when no factual issues are
Ross App. No. 12CA3319                                                           8

disputed. Nageotte v. Cafaro Co., 160 Ohio App.3d 702, 710, 2005-Ohio

2098, 828 N.E.2d 683, ¶ 28; citing Armstrong.

      {¶11} In the case sub judice, we do not believe any genuine issues of

material fact exist as to whether the condition of the shopping cart at

Appellee, Sack ‘N Save, Inc., constituted an open and obvious condition.

Although the specific cart at issue was not available for inspection, photos of

similar carts were. Appellant stated below that there was nothing broken or

damaged on the cart, just that the edge was sharp, and that when she hit her

arm on it, she sustained a cut. As properly noted by the trial court,

Appellant’s complaints regarding the shopping cart related to the cart’s

design of having vertical metal bars on the outside of the cart rather than on

the inside, which photos of similar carts illustrate. A review of the record

indicates that Appellant did not claim that the cart had been damaged or

broken in a manner resulting in an unsafe condition. The design of the

shopping cart at issue was an open and obvious condition. Additionally,

there was no evidence submitted that Appellee was responsible for the

design of the cart, that the cart was damaged in any way, or that Appellee

had knowledge of any damage or defect related to the cart.

      {¶12} Further, even if Appellant had acted reasonably and taken

precautions to avoid hitting her arm on the cart, the focus of the open and
Ross App. No. 12CA3319                                                            9

obvious condition doctrine is not based upon a plaintiff’s conduct. “Rather,

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.”

Armstrong at 82. Nonetheless, we also note that Appellant admitted that she

commonly shops at Sack ‘N Save and had done so for ten years prior to the

incident. Further on the date of the incident, Appellant had used the cart in

question for twenty minutes prior to injuring herself, and had been able to

observe the condition of the cart, which design was readily observable. Here

we agree with the trial court that no genuine issue of material fact remains to

be litigated at trial as to whether the design of the shopping cart constituted

an open and obvious condition and, thus, as to whether Appellee owed

Appellant a duty. As such, we conclude that the trial court did not err in

granting Appellee’s motion for summary judgment.

       {¶13} Accordingly, based upon the foregoing reasons, we hereby

overrule Appellants' sole assignment of error and affirm the trial court's

judgment.

                                                 JUDGMENT AFFIRMED.

Kline, J., concurring.

       {¶14} Because I cannot agree that the shopping cart was an open and

obvious hazard, I respectfully concur in judgment only. In my view,
Ross App. No. 12CA3319                                                   10

Lambert failed to “present evidence from which reasonable minds could

conclude that [Sack ’N Save] breached [a] duty and that the breach was the

proximate cause of [Lambert’s] injuries.” Miller v. Grewal Bros. Corp., 3d

Dist. No. 7-11-12, 2012-Ohio-1279, ¶ 13, citing Kaeppner v. Leading Mgt.,

Inc., 10th Dist. No. 05AP-1324, 2006-Ohio-3588, ¶ 9. Accordingly, I would

sustain the trial court’s judgment on other grounds.
Ross App. No. 12CA3319                                                     11

                           JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of Appellant costs herein taxed.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Ross County Common Pleas Court to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.

Abele, P.J.: Concurs in Judgment and Opinion.
Kline, J.: Concurs in Judgment Only with Opinion.


                          For the Court,

                          BY: _________________________
                              Matthew W. McFarland, Judge


                         NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
