[Cite as Johnson v. Am. Italian Golf Assn. of Columbus, 2018-Ohio-2100.]


                                IN THE COURT OF APPEALS OF OHIO

                                     TENTH APPELLATE DISTRICT

Georgia Johnson, et al.,                               :

                   Plaintiffs-Appellants,              :

v.                                                     :                         No. 17AP-128
                                                                             (C.P.C. No. 15CV-11180)
American Italian Golf Association of                   :
Columbus d/b/a Rivera Country Club,                                      (REGULAR CALENDAR)
                                                       :
                   Defendant-Appellee.
                                                       :



                                              D E C I S I O N

                                         Rendered on May 31, 2018


                   On brief: Isaac Wiles Burkholder & Teetor, LLC, Michael L.
                   Close, Andrew N. Yosowitz, and Dale D. Cook, for appellants.
                   Argued: Dale D. Cook.

                   On brief: Raymond H. Decker, Jr., for appellee. Argued:
                   Regan Tirone.

                     APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.
           {¶ 1} Plaintiffs-appellants, Georgia Johnson and Robert W. Johnson1 (collectively
"the Johnsons"), appeal from a decision of the Franklin County Court of Common Pleas
entered on January 26, 2017, granting the motion for summary judgment of defendant-
appellee, American Italian Golf Association of Columbus d/b/a Riviera Country Club ("the
association"), against the Johnsons' claims for damages. Because we find that genuine
issues of material fact exist with regard to the evidence considered by the trial court on
summary judgment, we reverse its decision and remand this matter for further
proceedings.


1   Because the appellants share the same last name, for ease of reference we refer to them by their first name.
No. 17AP-128                                                                              2


I. FACTS AND PROCEDURAL BACKGROUND
       {¶ 2} Georgia was attending a golfing event at the association's property, Riviera
Country Club ("Riviera"), on July 10, 2015, when she tripped and fell over a concrete curb
between a grass surface and an artificial turf surface, suffering a right proximal humerus
fracture, which required two surgeries to repair. It was Georgia's first time at Riviera, and
she claimed she did not see the curb because it was hidden by overgrown grass. Moreover,
she testified that, as an experienced golfer, she would never have anticipated a concrete
curb being in that location.
       {¶ 3} On December 11, 2015, the Johnsons filed a complaint in the Franklin County
Court of Common Pleas alleging that Georgia was a business invitee at Riviera when she
tripped over the curb while walking to the driving range. The Johnsons asserted that the
curb "was a hazard that was not open, obvious or observable." (Dec. 11, 2015 Compl. at ¶ 6.)
The Johnsons alleged that the association was negligent because it knew of the hazard, but
had failed to alleviate, remove, or post warnings about it, creating unreasonable risk of
harm to patrons. The Johnsons claimed that, as a direct and proximate cause of the
association's negligence, Georgia incurred serious injuries and lost earnings. Additionally,
Robert claimed loss of care, companionship, consortium, services, and society of his wife,
Georgia.
       {¶ 4} As part of the discovery process, the association deposed Georgia on
September 23, 2016. The association's counsel asked Georgia to described the fall, and she
testified as follows:
               I stepped and I couldn't--all I saw was grass and Astroturf. I
               saw nothing else but grass and Astroturf, and in a golfer's mind,
               when you see grass and Astroturf, there is a rubber mat under
               that to soften the blow for the clubs, okay. Never in my wildest
               dreams would I have dreamed there was concrete under the
               Astroturf.

               My foot stepped, so my foot stepped and it stepped like this
               (indicating). And because there was a deep, deep step that I did
               not see, my foot, when it hit like this, when it did that, because
               of the weight--when I stepped, it propelled me forward. This
               shoulder hit the other edge of the Astroturf and that's how it
               broke in four places (indicating). It kind of hit a line and
               shattered and then it threw me back. It's hard to explain.
(Sept. 23, 2016 Georgia Johnson Dep. at 53.)
No. 17AP-128                                                                               3


       {¶ 5} On October 28, 2016, the association filed a motion for summary judgment,
contending the Johnsons' claims fail because the curb was open and obvious. In support of
its motion, the association filed the deposition transcript of Georgia and several
photographs that had been admitted as deposition exhibits. The association claimed that
the photographs it provided (Georgia's deposition exhibits A through H) "clearly show a
difference in elevation that is visible to the naked eye between the grass and the turf
surface." (Oct. 28, 2016 Def.'s Mot. for Summ. Jgmt. at 6.) The association argued that,
had Georgia been paying attention, "she would have noticed the concrete slab itself
protruding from underneath the turf." Id. The association continued:
               What makes the elevation more obvious is that, even if the
               grass was in fact overgrown in places at the time of the fall as
               the Plaintiff alleges, one can easily see in the photos of the
               injury site that there is the presence of the grass, a grey
               material, followed by a thick layer of green artificial turf
               overlaying that grey material. The thickness of both materials,
               combined with the fact that they contrast in color, would lead a
               reasonable person to observe some difference in elevation
               despite whether or not they were actually aware it was concrete
               or any other surface on which the turf was mounted. * * * [O]ne
               can conclude that a reasonable person would have been able to
               observe the existence of an elevation difference in the exercise
               of reasonable care an [sic] could take reasonable precautions
               for their own safety.
Id.
       {¶ 6} On November 28, 2016, the Johnsons filed a memorandum contra asserting
the curb was obscured. They supported their memorandum contra with Georgia's affidavit,
as well as three "true and accurate photographs of the artificial turf and the surrounding
grass as it existed on July 10, 2014." (Georgia Johnson Aff. at ¶ 9, attached to Nov. 28, 2016
Pls.' Resp. in Opp.) Georgia testified that she had arrived at Riviera at approximately 7:45
a.m., took care of some preliminary matters and walked from the parking lot to the driving
range area. She testified that, between the parking lot and the area of the driving range
where golfers were warming up, there was a strip of artificial turf which appeared to be level
with the surrounding grass. She continued in her affidavit:
               11. When I went to cross the artificial turf, my foot stepped on
               the edge of an obscured concrete curb that could not be seen
               due to overgrown grass;
No. 17AP-128                                                                             4


                  12. I tripped over the hidden curb, fell forward, and broke my
                  right shoulder;

                  13. I later learned that the curb was several inches deep;
                  however, as the pictures make clear, as one approaches the
                  artificial turf, the turf and grass appear to be level. The concrete
                  curb underneath the turf was covered by weeds and grass and
                  was not visible to me;

                  14. Before this incident, I played golf five to six times per week.
                  I have played dozens of different golf courses. I have never seen
                  a concrete curb like the one in this case supporting artificial turf
                  on a golf course driving range;

                  15. Indeed, other than as part of a cart path, I have never seen
                  a concrete curb like the one depicted in [her three photographs]
                  in the middle of a driving range.
Id. at ¶ 11-15.
       {¶ 7} The Johnsons asserted that photographs provided by the association with its
motion for summary judgment also showed that the curb was obscured. They claimed that
the association owed a duty to protect invitee Georgia from concealed hazards. They argued
that there existed a genuine issue of fact as to whether the association breached that duty,
making summary judgment inappropriate.
       {¶ 8} The association filed a reply in support of its motion for summary judgment
on December 5, 2016.
       {¶ 9} By decision entered January 26, 2017, the trial court granted the association's
motion for summary judgment. The trial court stated in pertinent part as follows:
                  Defendant moves the Court for summary judgment, submitting
                  that Plaintiffs' claims fail because the curb is open and obvious.
                  Plaintiff counters that the curb was obscured. Under Ohio law,
                  there is no duty to warn invitees of or remove an open and
                  obvious hazard. Armstrong v. Best Buy, 99 Ohio St.3d 79, 80,
                  2003-Ohio-2573, 788 N.E.2d 1088. In support of its motion,
                  Defendant relies upon photos of the curb which clearly show a
                  difference in elevation that is visible to the naked eye between
                  the grass and the turf. (Plaintiff Depo. Exs. A-H). The Court
                  further notes that the curb itself is plainly visible in the photos
                  Plaintiff submitted with its Memorandum Contra.
No. 17AP-128                                                                            5


                As such, the Court finds that Defendant was under no duty to
                warn Johnson of the curb's existence and finds Defendant's
                motion for summary judgment well taken.
(Jan. 26, 2017 Decision and Entry at 3.)
          {¶ 10} The Johnsons now appeal the judgment of the trial court granting summary
judgment.
II. ASSIGNMENT OF ERRORS
          {¶ 11} The Johnsons present for our review two assignments of error:
                1. The trial court erred in granting summary judgment as there
                were genuine issues of material fact as to whether the hazard
                was open and obvious.

                2. The trial court in basing its analysis on some unspecified
                photos and ignoring other photos and testimonial evidence
                improperly weighed the evidence in considering the motion for
                summary judgment.
III. LAW AND DISCUSSION
   A. Standard of Review
          {¶ 12} The trial court resolved the Johnsons' complaint by summary judgment after
orders were entered governing discovery between the parties.
                Appellate review of summary judgment motions is de novo.
                Helton v. Scioto Cty. Bd. of ComGeorgia (1997), 123 Ohio App.
                3d 158, 162, 703 N.E.2d 841. When reviewing a trial court's
                decision granting summary judgment, we conduct an
                independent review of the record, and the appellate court
                "stands in the shoes of the trial court." Mergenthal v. Star
                Banc Corp. (1997), 122 Ohio App. 3d 100, 103, 701 N.E.2d 383.
Rose v. Ohio Dept. of Rehab. & Corr., 173 Ohio App.3d 767, 2007-Ohio-6184, ¶ 18 (10th
Dist.).
          {¶ 13} Thus, when reviewing an appeal of an order granting a motion for summary
judgment, this Court uses the same standard of review as the trial court. Freeman v.
Brooks, 154 Ohio App.3d 371, 2003-Ohio-4814, ¶ 6 (10th Dist.), citing Maust v. Bank One
of Columbus, N.A., 83 Ohio App.3d 103, 107 (10th Dist.1992), jurisdictional motion
overruled, 66 Ohio St.3d 1488 (1993). And an appellate court's review of a summary
judgment disposition is independent and without deference to the trial court's
determination. Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704, 711 (4th
Dist.1993). Thus, in determining whether a trial court properly granted a summary judgment
No. 17AP-128                                                                               6


motion, an appellate court must review the evidence according to the standard set forth in
Civ.R. 56, as well as according to applicable case law. Murphy v. Reynoldsburg, 65 Ohio
St.3d 356 (1992); Cooper v. Red Roof Inns, Inc., 10th Dist. No. 00AP-876 (Mar. 30, 2001).
       {¶ 14} Civ.R. 56(C) requires that:
               Summary 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 as to any material fact and that the
               moving party is entitled to judgment as a matter of law.
Civ.R. 56 has been described as a means to facilitate the early assessment of the merits of
claims, to foster pre-trial dismissal of meritless claims, and to define and narrow issues for
trial. Telecom Acquisition Corp. I v. Lucic Ents., 8th Dist. No. 102119, 2016-Ohio-1466,
¶ 92. See also Kulch v. Structural Fibers, Inc., 78 Ohio St.3d 134, 170 (1997) (Cook, J.,
concurring in part and dissenting in part). As such, summary judgment is a procedural
device designed to promote judicial economy and to avoid needless trials.
               "The goal of a motion for summary judgment is to narrow the
               issues in a case to determine which, if any, should go to trial.
               ' "The purpose of summary judgment is not to try issues of fact,
               but is, rather, to determine whether triable issues of fact
               exist." ' State ex rel. Anderson v. The Village of Obetz, 10th
               Dist. No. 06AP-1030, 2008-Ohio-4064, ¶ 64, quoting Lakota
               Local School Dist. Bd. of Edn. v. Brickner, 108 Ohio App.3d
               637, 643, 671 N.E.2d 578 (1996) (citations omitted.)"
Erickson v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 16AP-74, 2017-Ohio-1572, ¶ 19,
quoting Thevenin v. White Castle Mgmt. Co., 10th Dist. No. 15AP-204, 2016-Ohio-1235,
¶ 45 (Brunner, J., concurring.). Thus, a party seeking summary judgment on the grounds
that a nonmoving party cannot prove its case bears the initial burden of informing the trial
court of the basis for the motion and must identify those parts of the record which
demonstrate the absence of a genuine issue of material fact on the elements of the
nonmoving party's claims. Dresher v. Burt, 75 Ohio St.3d 280, 292-93 (1996).
       {¶ 15} If the moving party has satisfied its initial burden, the burden shifts to the
nonmoving party to set forth specific facts showing there is a genuine issue for trial. If the
nonmoving party does not respond, summary judgment, if otherwise appropriate, shall be
entered against the nonmoving party. Id. The nonmoving party may not rest on the mere
No. 17AP-128                                                                              7


allegations or denials of his or her pleadings, but must respond with specific facts showing
there is a genuine issue for trial. Civ.R. 56(E); Dresher at 293.
   B. First Assignment of Error
       {¶ 16} The Johnsons argue that the trial court abused its discretion in granting
summary judgment because there were genuine issues of material fact as to whether the
alleged hazard was open and obvious.
               [T]he open-and-obvious doctrine * * * states that a premises-
               owner owes no duty to persons entering those premises
               regarding dangers that are open and obvious. Sidle v.
               Humphrey (1968), 13 Ohio St.2d 45, 42 Ohio Op. 2d 96, 233
               N.E.2d 589, paragraph one of the syllabus. 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." Simmers v. Bentley Constr.
               Co. (1992), 64 Ohio St.3d 642, 644, 1992 Ohio 42, 597 N.E.2d
               504. A shopkeeper ordinarily owes its business 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. Paschal v. Rite Aid Pharmacy, Inc. (1985), 18
               Ohio St.3d 203, 18 OBR 267, 480 N.E.2d 474; Jackson v. Kings
               Island (1979), 58 Ohio St.2d 357, 12 O.O.3d 321, 390 N.E.2d
               810. When applicable, however, the open-and-obvious
               doctrine obviates the duty to warn and acts as a complete bar
               to any negligence claims.
Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 2003-Ohio-2573, ¶ 5. See also Thompson v.
Ohio State Univ. Physicians, Inc., 10th Dist. No. 10AP-612, 2011-Ohio-2270, ¶ 12. We have
uniformly recognized "that the existence and obviousness of an alleged danger requires a
review of the underlying facts." Freiburger v. Four Seasons Golf Ctr., L.L.C., 10th Dist.
No. 06AP-765, 2007-Ohio-2871, ¶ 11, citing Schmitt v. Duke Realty, 10th Dist. No. 04AP-
251, 2005-Ohio-4245, ¶ 10; Terakedis v. Lin Family Ltd. Partnership, 10th Dist. No.
04AP-1172, 2005-Ohio-3985, ¶ 10. The factual analysis involved in finding a danger to
be open and obvious is "whether the danger was free from obstruction and readily
appreciated by an ordinary person." Freiburger at ¶ 11. If there is no genuine issue as to
these material facts, that is, if reasonable minds could not differ about them, then, as a
matter of law, a court may decide that an alleged hazard is open and obvious. Id. But if
reasonable minds could differ about whether the danger was free from obstruction and
No. 17AP-128                                                                               8


readily appreciated by an ordinary person, a jury should resolve these factual issues
before the court determines whether the landowner has a duty to the business invitee.
Id., citing Schmitt at ¶ 17-19.
               In sum, our determination of whether the open-and-obvious
               nature of a hazard is a question of law for the court or question
               of fact for the jury will depend largely on the facts of each
               particular case. See Boles v. Montgomery Ward & Co. (1950),
               153 Ohio St. 381, 384, 92 N.E.2d 9.
Freiburger at ¶ 11. We have also held that, " '[a] person 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' or if 'plaintiff could have seen
the condition if he or she had looked.' " Smith-Huff v. Wal-Mart Stores, Inc., 10th Dist.
No. 15AP-454, 2015-Ohio-5238, ¶ 11, quoting Thompson v. Ohio State Univ. Physicians,
Inc., 10th Dist. No. 10AP-612, 2011-Ohio-2270, ¶ 12.
       {¶ 17} With this understanding, we review the evidence in the record to determine
whether genuine issues of any material facts exist that relate to whether, as a matter of law,
the alleged hazard was open and obvious. Construing the evidence in a light most favorable
to the Johnsons, the nonmoving parties (see Wilkins v. Harrisburg, 10th Dist. No. 14AP-
1028, 2015-Ohio-5472, ¶ 7), we find that there exist three matters of evidence creating
genuine issues of material fact about whether the alleged hazard was open and obvious.
       {¶ 18} First, from the photographs in the record, there is a question as to whether
the curb appears to be "so obvious and apparent to the invitee that he or she may reasonably
be expected to discover [it] and protect [oneself] against [it]." Ratcliff v. Wyandotte
Athletic Club, LLC, 10th Dist. No. 11AP-692, 2012-Ohio-1813, ¶ 16, citing Simmons v. Am.
Pacific Ent., L.L.C., 164 Ohio App.3d 763, 2005-Ohio-6957 (10th Dist.), citing Sidle v.
Humphrey, 13 Ohio St.2d 45 (1968). From its decision, it appears the trial court selected
the photo it wanted to use to make its decision from among competing photos of the parties.
This is evident from the record when the trial court stated that the curb is plainly visible,
even though there exists in the record photographic evidence provided by the Johnsons that
depicts an obscured curb.
       {¶ 19} Second, Georgia's undisputed testimony indicated that this configuration
involving the curb was an unusual type of hazard and that it was situated at an unusual
location, leaving open the question of whether or not the curb was so obvious that a
No. 17AP-128                                                                                9


reasonable patron would be reasonably expected to discover it and protect against it. The
trial court appears to have ignored or discounted this testimony from Georgia in reaching
summary judgment for the association.
       {¶ 20} Third, construing the location of the hazard in a light most favorable to the
nonmoving party, the question of whether the attendant circumstances (golfers warming
up) could have reduced an ordinary person's expectation of discovering and protecting
oneself against it remains reasonably open to question.          This is important because
attendant circumstances can create an exception to the open-and-obvious doctrine. Mayle
v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 09AP-451, 2010-Ohio-2774, ¶ 20. The
attendant circumstances must be so abnormal as to unreasonably increase the normal risk
of an ordinary person, or so as to reduce the ordinary person's degree of care. Id. The
circumstances must divert the invitee's attention, thus enhancing the danger and
contributing to the injury. Id. Potential attendant circumstances include "poor lighting, a
large volume of pedestrian traffic, the visibility of the defect, the overall condition of the
walkway, and whether the nature of the site is such that one's attention would be easily
distracted." Id. at ¶ 22, citing Humphries v. C.B. Richard Ellis, Inc., 10th Dist. No. 05AP-
483, 2005-Ohio-6105, ¶ 20. The trial court did not, in its determination of summary
judgment, make mention of the attendant circumstances alleged by Georgia to have
diverted her attention.
       {¶ 21} Our de novo review of the record and the arguments of the parties show that
the evidence provided for determining summary judgment to avoid a trial was in the form
of undisputed testimony and photographs, which in and of themselves we find elicited
material questions of fact. The photographic evidence, even only that provided by the
association, is subject to differing interpretations as to whether it constituted an observable
danger. Taking into consideration all the testimony and documentary evidence and
drawing all reasonable inferences in favor of the Johnsons, we cannot say that no genuine
issue of material fact remains. Thus, we cannot find as a matter of law that the placement
and condition of the curb that Georgia said she fell on was an open and obvious danger.
Nor can we say, when construing the evidence most strongly in favor of the Johnsons, that
the association was entitled to summary judgment as a matter of law.
No. 17AP-128                                                                              10


       {¶ 22} Having independently reviewed the record, we find there was ample evidence
from which the trial court, drawing all reasonable inferences in favor of the Johnsons,
should have found a genuine issue of material fact about whether the curb was open and
obvious. By simply looking at the photograph and drawing a conclusion, the trial court
engaged in weighing the evidence; that is, determining its quality, all of which is
impermissible on summary judgment. It is a standard jury instruction for determining
proof by a preponderance of the evidence, that, "[i]t is the quality of the evidence that must
be weighed, and quality may or may not be identical with the quantity or the greater
number of witnesses." State v. Levonyak, 7th Dist. No. 05 MA 227, 2007-Ohio-5044,
¶ 58. Thus, when a court on summary judgment draws inferences from photographs
deeming them to be of such quality that the court can make the factual call, it
impermissibly weighs the evidence. More simply put: "Where the evidence presented
allows conflicting inferences, a court considering a summary judgment motion may not
weigh the evidence." Thyssen Krupp Elevator Corp. v. Constr. Plus, Inc., 10th Dist. No.
09AP-788, 2010-Ohio-1649, ¶ 20.
       {¶ 23} Upon this record's evidence, the trial court committed an error of law when
it proceeded to determine whether the alleged hazard was observable and one that should
have been observed by a reasonable person. The trial court could not, under this set of
facts, negate a duty to warn of an open and obvious danger and award judgment to the
association. It should have denied the association's motion for summary judgment.
Instead, it weighed the evidence and impermissibly reached factual conclusions that
supplied the basis to render judgment for the association using the open-and-obvious
doctrine and thereby barred recovery by the Johnsons.
       {¶ 24} The Johnsons' first assignment of error is sustained.
   C. Second Assignment of Error
       {¶ 25} The Johnsons argue that the trial court, in basing its analysis on photographs
provided by the association, while ignoring the photographs and testimonial evidence
provided by the Johnsons, improperly weighed the evidence in considering the motion for
summary judgment. This is really a sub-argument of the first assignment of error relating
to the more general assignment the trial court erred in granting summary judgment as there
were genuine issues of material fact as to whether the hazard was open and obvious.
Because we have already determined that the trial court impermissibly weighed the
No. 17AP-128                                                                           11


evidence to reach the legal conclusion that no duty to warn was owed to the Johnsons under
the open-and-obvious doctrine, the Johnsons' second assignment of error is already
addressed by our finding as to the first assignment of error and we consider the second
assignment no further.
IV. CONCLUSION
       {¶ 26} In our de novo review of the record, we hold the trial court's summary
judgment in favor of the association was granted in error. Having reviewed the evidence
and drawn all reasonable inferences therefrom in favor of the Johnsons as we are required
to do by Civ.R. 56, we do find that the association was not legally entitled to summary
judgment. We sustain the Johnsons' first assignment of error and decline to address the
Johnsons' second assignment of error because we have already addressed the issues
relevant to that assignment in our first assignment of error. We thus reverse the judgment
of the Franklin County Court of Common Pleas and remand this matter to the trial court
for further proceedings consistent with this decision.
                                                    Judgment reversed; cause remanded.
                           TYACK and HORTON, JJ., concur.
