         [Cite as Milatz v. Cincinnati, 2019-Ohio-3938.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



MARGARET MILATZ,                                           APPEAL NO. C-180272
                                                   :       TRIAL NO. A-1603564
        Plaintiff-Appellant,
                                                   :
  vs.                                                        O P I N I O N.
                                                   :
CITY OF CINCINNATI, OHIO,
                           :
CINCINNATI   USA  REGIONAL
CHAMBER OF COMMERCE,       :

  and                                              :

LOUD AND CLEAR, INC.,                              :

    Defendants-Appellees.                          :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 27, 2019


Brannon & Associates, Dwight D. Brannon and Matthew C. Schultz, for Plaintiff-
Appellant,

Paula Boggs Muething, City Solicitor, and Peter J. Stackpole, Deputy City Solicitor,
for Defendant-Appellee City of Cincinnati, Ohio,

Douglas J. May, for Defendant-Appellee Cincinnati USA Regional Chamber of
Commerce,

Reminger Co., L.P.A., and Ian D. Mitchell, for Defendant-Appellee Loud and Clear,
Inc.
                     OHIO FIRST DISTRICT COURT OF APPEALS


BERGERON, Judge.


       {¶1}   A night at Oktoberfest in downtown Cincinnati went awry when a

patron fell and injured herself. As the culprit for the fall, the patron zeroed in on a

safety utility box (placed over wires on the ground to prevent people from tripping),

which appeared haphazardly assembled when the patron returned to the scene a day

after the accident. In the ensuing lawsuit, the trial court granted summary judgment

based on the “open and obvious” nature of the box—a conclusion that the plaintiff

does not seriously dispute at this point.           Instead, she claims that attendant

circumstances distracted her attention, thereby granting her entitlement to a trial.

But her position would represent a substantial expansion of the attendant-

circumstances doctrine, which is a step we are unwilling to take on this record,

particularly in light of the lack of evidence of actual causation. For the reasons

detailed below, we affirm the grant of summary judgment.

                                           I.

       {¶2}   In September 2015, plaintiff-appellant Margaret Milatz traveled to

Cincinnati to attend the annual Oktoberfest celebration with a friend. Enjoying the

festival (and the funnel cake she was holding), the night ended abruptly when Ms.

Milatz fell and injured herself. After picking herself up off of the ground, she noticed

pain in her chest and that her sandal strap had snapped apart. Embarrassed by the

episode and in pain, Ms. Milatz decided to leave the event with her friend and

returned to her hotel.

       {¶3}   The next day, Ms. Milatz returned to the scene of the accident and took

pictures of an incorrectly-assembled safety utility box, which she believed caused her

fall. Scattered throughout the event, safety utility boxes covered the cables supplying

power to the various vendor booths and event stages. These boxes consisted of

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raised, elongated rectangles with sloped edges which allowed the power cables

running along the ground to fit safely underneath (to prevent tripping). Covered in

bright yellow to attract attention, the top of the box also contained an anti-skid,

texturized surface. Ms. Milatz’s photograph of the scene depicted an incorrectly

assembled box. Instead of the power cables running neatly underneath the box, the

top of the safety utility box had popped open, allowing the power cables to spill out.

Because sometimes a picture is worth a thousand words, we include a photo below.




       {¶4}   Based on her observations, Ms. Milatz brought suit alleging negligence

against the organizers of Oktoberfest, the city of Cincinnati and the Cincinnati USA

Regional Chamber of Commerce (the “Chamber”), as well as Loud and Clear, Inc.,

the independent contractor that assembled the safety utility boxes. Though Loud

and Clear initially missed the deadline for filing its answer to the complaint, the trial

court granted it leave to submit its answer out of time. Eventually, all three parties

moved for summary judgment, which the court granted. The court concluded that

the safety utility box constituted an “open and obvious” hazard, negating any duty

that the parties owed to Ms. Milatz.

       {¶5}   Ms. Milatz now appeals from the grant of summary judgment, raising

two assignments of error. She challenges the grant of summary judgment as

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erroneously premised on the “open and obvious” doctrine and additionally

challenges as improper the grant of leave to Loud and Clear to file its answer out of

time.

                                             II.

                                             A.

        {¶6}   Construing the facts in the light most favorable to Ms. Milatz,

summary judgment is appropriate where no genuine question of material fact exists

and the moving party is entitled to judgment as a matter of law. See Armstrong v.

Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 15. We

review a grant of summary judgment de novo. Ligon v. Winton Woods Park, 1st Dist.

Hamilton No. C-180073, 2019-Ohio-1217, ¶ 6.

        {¶7}   A claim of negligence requires the plaintiff to show (1) a duty of care

running between the plaintiff and defendant, (2) a breach of that duty by the

defendant, and (3) injury suffered by the plaintiff proximately caused by the breach.

Id. at ¶ 8. As an attendee of the festival Ms. Milatz was considered an invitee, which

meant that the organizers—the city and the Chamber—generally her owed a “duty of

ordinary care” to maintain the premises in a reasonably safe condition and warn of

any latent or hidden dangers. Duell v. City of Cincinnati, 2018-Ohio-4400, 122

N.E.3d 640, ¶ 5 (1st Dist.).

        {¶8}   Dangers deemed to be “open and obvious,” however, vitiate this duty

owed to those lawfully on the premises, Armstrong at syllabus, on the theory that the

open and obvious nature of the condition itself serves as a warning of the danger.

Ligon at ¶ 9 (black mat lying unobstructed on a concrete sidewalk was open and

obvious danger). As a result, we have defined an open and obvious hazard as one

that is not “hidden, concealed from view, or undiscoverable upon ordinary

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inspection.” Esterman v. Speedway LLC, 1st Dist. Hamilton No. C-140287, 2015-

Ohio-659, ¶ 7, quoting Thompson v. Ohio State Univ. Physicians, Inc., 10th Dist.

Franklin No. 10AP-612, 2011-Ohio-2270, ¶ 12; Armstrong at ¶ 16 (“[V]iewing the

photographs supplied by both parties, we find that as a matter of law, the rail in

question was visible to all persons entering and exiting the store.”). Finally, a party’s

subjective awareness of a hazard’s existence is not determinative of whether the

danger is in fact open and obvious; this evaluation instead utilizes an objective

standard. Ligon at ¶ 9. Nevertheless, if a person actually sees and appreciates the

hazard, that fact must be considered in the overall calculus.

       {¶9}   Ms. Milatz goes through the motions of challenging the open and

obvious nature of the safety utility box in question, but wisely does not hinge her

appeal on this issue. Suffice it to say, she faces an uphill battle here in light of the

warning color of the box, its size, and relative prominence. Indeed, she concedes

that she saw the box in question before approaching it.

       {¶10} With that backdrop, Ms. Milatz takes a different tack and reframes the

open and obvious inquiry by positing that faulty assembly of the box constituted an

attendant circumstance, which obviated the open and obvious nature of the hazard.

She suggests that because other safety utility boxes were properly assembled that

night (which she saw), she let her guard down and did not fully appreciate the danger

of the improperly-assembled box. These attendant circumstances, she maintains,

created a question of fact.     See Esterman at ¶ 11 (“In determining whether a

dangerous condition is open and obvious, attendant circumstances can create a

genuine issue of material fact.”).

       {¶11} Attendant circumstances, however, are “distractions that contribute to

an injury by diverting the attention of the injured party and reduce the degree of care

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an ordinary person would exercise at the time.” McLaughlin v. Andy’s Coin

Laundries, LLC, 2018-Ohio-1798, 112 N.E.3d 57, ¶ 15 (1st Dist.), quoting Galinari v.

Koop, 12th Dist. Clermont No. CA2006-10-086, 2007-Ohio-4540, ¶ 21. They reflect

an “unusual circumstance of the property owner’s [own] making.” Esterman at ¶ 14,

quoting McConnell v. Margello, 10th Dist. Franklin No. 06AP-1235, 2007-Ohio-

4860, ¶ 17; Lattimore v. K&A Market, Inc., 1st Dist. Hamilton No. C-150753, 2016-

Ohio-5295, ¶ 7 (chip display in convenience store was not an attendant circumstance

as it was not an unusual circumstance which would divert someone’s attention). We

have not seen, nor has Ms. Milatz directed our attention to, a case where the

attendant circumstance was actually the hazard itself.

           {¶12} Unlike a prototypical attendant circumstance (i.e., some type of

distraction), Ms. Milatz described the area around the safety utility box as well lit,

with “lights lit up everywhere,” and free from large crowds that might have obscured

her view. She further acknowledged familiarity with the appearance of the safety

utility boxes prior to her fall, having witnessed them throughout the event. And,

importantly, Ms. Milatz admittedly saw the box immediately prior to trying to step

over it:

           Q: Right before you stepped over the safety utility box that’s depicted

           in this picture, did you see it?

           A: I saw it.

           Q: So you saw the box, and then stepped over it?

           A: I saw the box, and I walked - - was walking, yes, and I stepped over

           it.

Nothing in the record reflects that the safety utility box was either an unusual

circumstance, or that she was distracted at the time of the fall. See Shepherd v.

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                      OHIO FIRST DISTRICT COURT OF APPEALS



Cincinnati, 168 Ohio App.3d 444, 2006-Ohio-4286, 860 N.E.2d 808, ¶ 31 (1st Dist.)

(“And attendant circumstances must, taken together * * * divert the attention of the

pedestrian[.]”). Thus, no attendant circumstance existed to distract Ms. Milatz’s

attention from the safety utility box.

       {¶13} Attempting to frame the issue as one of faulty construction of the box,

Ms. Milatz runs headlong into a causation problem, because she presented no

evidence to establish that improper assembly actually caused her injuries:

       Q: Do you know why you tripped on this specific ramp?

       A: There was no rhyme or reason why I tripped on anything.

       Q: I mean, do you – is that what you believe happened, or do you

       know?

       A: That there’s no rhyme or reason why I tripped?

       Q: No. Do you believe you tripped?

       A: I believe I did.

       Q: And why do you believe that you tripped?

       A: Because when I was on the ground, and when I got up, obviously I

       tripped.

       Q: Do you remember feeling your foot being arrested by something

       before you fell?

       A: It happened so fast.

       Q: So you don’t remember, correct?

       A: No.

Speculation alone, however, is insufficient to establish that some type of assembly

glitch with the safety utility box caused the fall. See, e.g., McLain v. Equitable Life

Assur. Co. of U.S., 1st Dist. Hamilton No. C-950048, 1996 WL 107513, *7 (March 13,

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                     OHIO FIRST DISTRICT COURT OF APPEALS



1996) (where plaintiff admitted she had no idea how she fell summary judgment was

proper); Rosenbrook v. Lucas Cty. Bd. of Commrs., 2015-Ohio-1793, 33 N.E.3d 562,

¶ 50 (6th Dist.) (summary judgment was properly granted when the plaintiff could

not state that the curled rug caused her fall and only saw it after she fell); Bozsik v.

Aldi, Inc., 9th Dist. Summit No. 23146, 2006-Ohio-5880, ¶ 9 (“Without more than

conjecture about what caused her fall at the Aldi store, [the appellant] is precluded

from establishing a negligence claim.”). The question might be closer, for instance, if

she testified that she stepped on top of the box, and it buckled because of shoddy

assembly, causing her to fall. But that is not the record before us. We accordingly

find that the trial court properly granted summary judgment as to the city and the

Chamber.

       {¶14} The analysis is slightly different for Loud and Clear, but ultimately

reaches the same result. As an independent contractor, Loud and Clear could not

avail itself of the open and obvious doctrine to negate its duty to warn. See Simmers

v. Bentley Constr. Co., 64 Ohio St.3d 642, 645, 597 N.E.2d 504 (1992) (holding that

open and obvious doctrine exonerating an owner or occupier of land from duty to

warn those entering the land did not extend to independent contractor). The open

and obvious nature of the danger, however, can be employed in evaluating whether

Loud and Clear breached this duty of care. See Brock v. Food, Folks & Fun, Inc., 2d

Dist. Montgomery No. 25719, 2014-Ohio-2668, ¶ 21 (open and obvious nature of

handicap ramp assumed relevance in court’s analysis of whether independent

contractor breached its duty of ordinary care). And, of course, the causation problem

highlighted above looms large here as well—Ms. Milatz cannot establish that

negligence by Loud and Clear actually caused her injury. Whether viewed as a

question of breach or one of causation, the record evidence confirms the propriety of

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                     OHIO FIRST DISTRICT COURT OF APPEALS



the trial court’s grant of summary judgment to Loud and Clear. See id. at ¶ 23 (no

breach where it was unforeseeable that the plaintiff would fail to recognize the

ordinary danger associated with a handicap ramp). Therefore, we accordingly

overrule Ms. Milatz’s first assignment of error.

                                          B.

       {¶15} Ms. Milatz also contends that the trial court abused its discretion in

denying her motion for a default judgment and allowing Loud and Clear to file its

answer to the complaint out of time. See Watts v. Fledderman, 1st Dist. Hamilton

No. C-170255, 2018-Ohio-2732, ¶ 36 (trial court’s grant of moving party’s motion to

file an answer out of time will not be reversed absent an abuse of discretion). “An

abuse of discretion involves more than an error of law or of judgment; it connotes an

attitude on the part of the court that is unreasonable, unconscionable or arbitrary.”

Id., citing Rock v. Cabral, 67 Ohio St.3d 108, 112, 616 N.E.2d 218 (1993).

       {¶16} In its discretion, a court may allow an answer to be filed out of time

“upon motion made after the expiration of the specified period * * * where the failure

to act was the result of excusable neglect[.]” Civ.R. 6(B)(2). A court’s determination

of “excusable neglect” must take into account “all the surrounding facts and

circumstances, with the admonition that cases should be decided on their merits,

where possible.” Fourtounis v. Verginis, 2017-Ohio-8577, 101 N.E.3d 101, ¶ 12 (8th

Dist.). Denial of a motion to file an answer out of time is warranted where a party

demonstrated a “complete disregard for the judicial system.” Kay v. Marc Glassman,

Inc., 76 Ohio St.3d 18, 20, 665 N.E.2d 1102 (1996), quoting GTE Automatic Elec.,

Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 153, 351 N.E.2d 113 (1976).

       {¶17} Realizing its error after Ms. Milatz moved for a default judgment, Loud

and Clear filed its motion within days. It explained therein that it erroneously

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                     OHIO FIRST DISTRICT COURT OF APPEALS



miscalculated the answer date, attaching supporting affidavits of its vice president of

business operations and its insurance claims adjuster to explain the snafu.

       {¶18} This is precisely the sort of of excusable neglect contemplated by Civ.R.

6(B)(2). E.g., Brooks v. Progressive Ins. Co., 9th Dist. Summit No. C.A. 16639, 1994

WL 376768, *3 (July 20, 1994) (“[M]iscalculation of the answer date [is] the type of

oversight or clerical error that the trial court could consider excusable neglect[.]”);

Bryan v. Valley Care Health Sys. of Ohio, 11th Dist. Trumbull No. 2015-T-0130,

2016-Ohio-7156, ¶ 24 (excusable neglect when affidavits from party’s legal

department supported the claim that complaint and summons were never received

due to clerical error); Evans v. Chapman, 28 Ohio St.3d 132, 135, 502 N.E.2d 1012

(1986) (not an abuse of discretion to find that clerical errors constitute excusable

neglect). Nothing in Loud and Clear’s counduct implicates a flagrant disregard of the

judicial system warranting a denial of its motion. Coupled with the notion that the

judicial system prefers to resolve issues on the merits, we find that the court did not

abuse its discretion when it granted leave to file the answer out of time.         We

accordingly overrule Ms. Milatz’s second assignment of error.

       {¶19} Having overruled Ms. Milatz’s two assignments of error, we

accordingly affirm the judgment of the trial court granting summary judgment.

                                                                  Judgment affirmed.


MYERS, P.J., and WINKLER, J., concur.
Please note:
       The court has recorded its own entry this date.




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