[Cite as Robinson v. Dance Studio, 2015-Ohio-320.]



                Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA



                                 JOURNAL ENTRY AND OPINION
                                         No. 101750




                                       TANYA L. ROBINSON

                                                           PLAINTIFF-APPELLANT

                                                     vs.

                                   THE DANCE STUDIO, ET AL.

                                                           DEFENDANTS-APPELLEES




                                         JUDGMENT:
                                   REVERSED AND REMANDED



                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                     Case No. CV-13-808242

        BEFORE: S. Gallagher, J., Celebrezze, A.J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED:                     January 29, 2015
ATTORNEYS FOR APPELLANT

Abby L. Botick
Neal E. Shapero
Shapero & Roloff Co., L.P.A.
1350 Euclid Avenue
Suite 1550
Cleveland, OH 44115


ATTORNEYS FOR APPELLEES

For The Dance Studio, et al.

Thomas M. Coughlin, Jr.
John A. Rubis
Ritzler, Coughlin & Paglia, Ltd.
1360 East Ninth Street
1000 IMG Center
Cleveland, OH 44114

For Cuyahoga Community College

Mike DeWine
Ohio Attorney General
By: Michael T. Fisher
Assistant Attorney General
615 Superior Avenue, 11th Floor
Cleveland, OH 44113-1899
SEAN C. GALLAGHER, J.:

        {¶1} Plaintiff Tanya Robinson appeals the trial court’s decision granting summary

judgment in favor of the defendants The Dance Studio, The Dance Studio, L.L.C., and Soles N

Sync (collectively “The Dance Studio”) and defendant Cuyahoga Community College (“Tri-C”).

For the following reasons, we reverse the decision of the trial court and remand for further

proceedings.

        {¶2} On June 4, 2011, Robinson attended a dance recital performed in Tri-C’s

auditorium.    The Dance Studio orchestrated the event, but Tri-C employees operated the

auditorium’s lighting system that included house, stage, and aisle lighting. The aisle lighting

was always on, while the house and stage lighting fluctuated throughout the recital. Robinson

was seated in a fifth-row, aisle seat. Before the recital, she left some gifts for a couple of the

performers in front of the stage and then ascended the aisle steps to her seat. After the second of

about 40 performances during the recital, Robinson stood to retrieve the gifts. At that time, the

stage lights illuminated the seating area sufficiently for her to clearly see everything. She

descended two steps before the stage lights momentarily dimmed, according to Robinson,

causing the auditorium to become pitch black. Robinson claimed that she carefully attempted to

negotiate the remaining steps, which she saw “as best she could” while bending over to get a

closer look. She either descended three additional steps or took three more steps in that way

before falling over the last step.

        {¶3} According to Robinson, only the last couple of steps were not illuminated, but she

never explains whether that means there was not an aisle light, the light available failed to

illuminate the step — if that was indeed the purpose of the aisle lights, or there were multiple

aisle lights extinguished. It is undisputed that the aisle lights were otherwise activated except
for the last one. A representative from The Dance Studio claimed that the last step was not

illuminated, but could not confirm that the single light was off, only that the step appeared unlit.

The campus security guard noted that the light on the step in question was on, but dimmer than

the others, although he did not testify regarding the effectiveness of the dimmer light or whether

any aisle light actually illuminated the respective step. After Robinson fell, the stage lights were

reactivated as the third performance started.

       {¶4} There are no pictures in the record of the aisle, the aisle-lighting system, or the step.

According to Tri-C’s representative and a simple diagram attached to his deposition, it appears

that each seating row was situated on a platform so that two steps were necessary to descend each

row, meaning the steps alternated between a standard step and a platform. The aisle lighting

consisted of lights attached on the side of the aisle seat, alternating between the left and right

aisle seats as one proceeded down the stairs, presumably meaning the light was on the platform

and not the standard-sized step. There is no evidence establishing whether the aisle lights were

meant to illuminate the step preceding the platform or merely served as an indication that a step

was near.

       {¶5} The trial court granted summary judgment in favor of The Dance Studio and Tri-C,

both of which claimed that the open-and-obvious doctrine or step-in-the-dark rule precluded

Robinson from recovering damages stemming from her fall. Robinson appealed, advancing

three assignments of error generally claiming that the lack of lighting is not an open-and-obvious

hazard, that the step-in-the-dark rule does not apply, and that the defendants had a duty to

provide adequate lighting during the recital. We find some merit to Robinson’s assignments of

error; the granting of judgment was premature based on the issues of fact surrounding the alleged

defect in the aisle-lighting system.
       {¶6} Appellate review of summary judgment is de novo, governed by the standard set

forth in Civ.R. 56. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8.

       Summary judgment may be granted only when (1) there is no genuine issue of
       material fact, (2) the moving party is entitled to judgment as a matter of law, and
       (3) viewing the evidence most strongly in favor of the nonmoving party,
       reasonable minds can come to but one conclusion and that conclusion is adverse
       to the nonmoving party.

Marusa v. Erie Ins. Co., 136 Ohio St.3d 118, 2013-Ohio-1957, 991 N.E.2d 232, ¶ 7.

       {¶7} “A business ordinarily owes its invitees a duty of ordinary care in maintaining the

premises in a reasonably safe condition and has the duty to warn its invitees of latent or hidden

dangers.” Hill v. W. Res. Catering, Ltd., 8th Dist. Cuyahoga No. 93930, 2010-Ohio-2896, ¶ 10,

citing Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088;

Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 480 N.E.2d 474 (1985); Jackson v. Kings

Island, 58 Ohio St.2d 357, 390 N.E.2d 810 (1979).               “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.” Id.

       {¶8} In this case, Robinson alleges that the aisle-lighting system was not completely

operative. Although her testimony and The Dance Studio’s representative’s testimony regarding

the broken or defective light was ambiguous, summary judgment cannot be predicated on

credibility determinations. See Turner v. Turner, 67 Ohio St.3d 337, 617 N.E.2d 1123 (1993),

paragraph one of the syllabus. Robinson did not adequately testify whether the step lacked

illumination because there was no aisle light on the last step or because the aisle lighting was

somehow defective. The Dance Studio’s representative, who could not adequately describe the
aisle-lighting system, stated the light attached to the last step was not illuminated, at least

implying a defect existed.

       {¶9} Regardless, we must accept the evidence most strongly in favor of the plaintiff,

which in this case demonstrates that the lighting system in the aisle stairway, meant to guide

patrons through the darkened theater, was not completely working and, therefore, defective.

According to Robinson’s evidence, the last step’s light was not illuminated. Regardless of the

strength of Robinson’s evidence, the defendants bore the burden of demonstrating the basis of

their motions.

       {¶10} In this regard, the defendants claim that this court has reached numerous decisions

standing for the proposition that a plaintiff, like Robinson, is precluded from advancing liability

claims when the fall in a darkened theater is caused by falling down a step. Cases from this

district do not go quite so far as to preclude all liability incurred as a result from a patron’s

slipping or tripping over stairs in darkened areas. Defendants have not cited any equivalent

instance in Ohio where a path-lighting system is alleged to be defective, yet summary judgment

is appropriate.

       {¶11} For instance, in Johnson v. Regal Cinemas, Inc., 8th Dist. Cuyahoga No. 93775,

2010-Ohio-1761, the plaintiff fell when a ramp leading into a darkened movie theater

transitioned into stairs. A panel of this court determined that either the open-and-obvious

doctrine obviated a duty to warn a plaintiff of a hazard in the darkened theater because the aisle

lights illuminating the path served its own warning, or in the alternative, if the stairway was

completely dark due to non-existent aisle lighting, the step-in-the-dark rule precluded recovery

because a plaintiff cannot discharge her own liability after walking into a darkened theater

without investigating possible dangers. Id. at ¶ 27; Draper v. Centrum Landmark Theater, 8th
Dist. Cuyahoga No. 72000, 1997 Ohio App. LEXIS 2555 (June 12, 1997) (defendants owed no

duty to plaintiff because the aisle lighting provided adequate notice of the pathway); McDonald

v. Marbella Restaurant, 8th Dist. Cuyahoga No. 89810, 2008-Ohio-3667, ¶ 2 (the hazardous

condition was the darkness and, therefore, the defendant owed no duty to the plaintiff before her

fall down completely unlighted stairs).1 In this case there was a lighting system in place to warn

patrons of the stairs. Unlike previous cases, the issue in this case focuses on whether a defect in

the aisle-lighting system existed and caused Robinson’s damages.

        {¶12} Accordingly, there is a genuine issue of material fact regarding whether the aisle

lighting was designed to serve as a warning to patrons using the aisles in the darkened theater,

and whether a defective light existed. Contrary to the defendants’ contention, Robinson has

pleaded and demonstrated a hazardous condition sufficiently to survive summary judgment

against the open-and-obvious doctrine.       The alleged hazardous condition is not darkness, rather

the failure to maintain the aisle lighting. The defendants have not addressed whether a duty

exists 2 or was breached in failing to maintain the aisle lighting, and therefore, any summary

judgment determination was premature.3



        1
         We note that there is a split among the Ohio districts regarding whether the open-and-obvious
doctrine, pertaining to the duty prong of negligence, encompasses darkness as a hazard in light of the
fact that the step-in-the-dark rule originated as a contributory negligence claim. Andler v. Clear
Channel Broadcasting, Inc., 670 F.3d 717, 726 (6th Cir.2012). Resolution of that issue is outside the
scope of the current appeal.
        2
          Robinson’s complaint is not clear as to her theory of liability, and the issue was not clarified
in any briefing. It appears that, in addition to the defective aisle light, she complains that a theater
has a duty to refrain from turning the house and stage lighting off between performances, but without
establishing the source of that duty. That issue was not addressed by any party and, therefore, we
are left to merely note the issue.
        3
         Robinson’s claims against The Dance Studio are also murky.           The Dance Studio had no
        {¶13} Our decision is not to be read as a steadfast refusal to apply the open-and-obvious

doctrine, which still may be applicable. See, e.g., Johnson, 8th Dist. Cuyahoga No. 93775,

2010-Ohio-1761; Draper, 8th Dist. Cuyahoga No. 72000, 1997 Ohio App. LEXIS 2555 (the dim

aisle lighting provided notice of the danger of stairs in a darkened theater as a matter of law).

We note this fact only because if, for example, it were undisputed that the aisle lighting system

was operational so the open-and-obvious doctrine applied, there was no notice of the defect

pursuant to general negligence principles, or the aisle light merely served as a point of warning

rather than illumination so that a dimmer light was sufficient, summary judgment may have been

otherwise appropriate. Our disposition is purely a reflection of the state of the record and

arguments advanced.

        {¶14} There is a genuine issue of material fact as to whether the aisle lighting system was

defective. In light of the foregoing, the trial court’s decision granting summary judgment is

reversed, and the matter is remanded for further proceedings.

        It is ordered that appellant recover of appellees 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 common pleas

court to carry this judgment into execution.

        A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.


responsibility over the aisle lighting based on the undisputed facts. In seeking summary judgment,
however, The Dance Studio relied on the step-in-the-dark rule and the open-and-obvious doctrine
without addressing whether it owed a duty to maintain the aisle lighting. It is undisputed that the aisle
lights were illuminated other than the one nearest the step at issue. We cannot, however, preserve
the trial court’s ruling on reasons not addressed with either court.
SEAN C. GALLAGHER, JUDGE

FRANK D. CELEBREZZE, JR., A.J., and
EILEEN A. GALLAGHER, J., CONCUR
