         [Cite as Lattimore v. K & A Market, Inc., 2016-Ohio-5295.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



ANDREA LATTIMORE,                                 :          APPEAL NO. C-150753
                                                             TRIAL NO. A-1500383
        Plaintiff-Appellant,                      :
                                                                  O P I N I O N.
  vs.                                             :

K & A MARKET, INC.,                               :

 and                                              :

CARRIE L. MOLLER TRUST,                           :

    Defendants-Appellees,                         :

 and                                              :

MOLINA HEALTHCARE OF OHIO,                        :

        Defendant.                                :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: August 10, 2016


Anthony J. Iaciofano and R. David Weber, for Plaintiff-Appellant Andrea Lattimore,

James R. Hartke, for Defendant-Appellee K & A Market, Inc.,

Jeffrey A. Stepner, for Defendant-Appellee Carrie L. Moller Trust.
                     OHIO FIRST DISTRICT COURT OF APPEALS




D E W INE , Judge.

        {¶1}   This is an appeal in a slip and fall case. A customer tripped on the edge

of a handicap ramp while shopping at a convenience store.        The trial court granted

summary judgments in favor of the convenience store and the property owner. We

affirm. The defendants owed no duty to the customer because the rise in the floor on

which she fell was open and obvious. Further, the doctrine of negligence per se does not

apply to create a duty because the customer has failed to show the violation of a

legislative enactment.

                                   I.   Background

        {¶2}   Andrea Lattimore fell while shopping at K & A Market. As she tells it,

she entered the store and immediately spotted a display of snacks from which she

sought to make a purchase. She took two steps into the store and turned to her left to

reach the snack rack. When she did so, she tripped on a rise at the edge of a handicap

ramp.

        {¶3}   Apparently, there had once been a handrail on the ramp. The market

had removed the handrail—with the property owner’s permission—soon after it had

taken over occupancy of the building. Ms. Lattimore testified that she had been in the

building on numerous occasions before the handrail was removed. Following Ms.

Lattimore’s accident, a city of Cincinnati building inspector issued the property owner a

notice of violation of a Cincinnati Municipal Code section requiring that railings be

maintained in good repair.

        {¶4}   Ms. Lattimore filed a complaint for negligence and negligence per se

against K & A Market, Inc., and the owner and lessor of the property, the Carrie L.

Moller Trust. Both moved for and were granted summary judgment. The trial court




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concluded that the hazard was open and obvious and that the Cincinnati Municipal Code

provision alleged to have been violated was not sufficiently specific to allow for the

application of negligence per se.        Ms. Lattimore now appeals, challenging both

conclusions in a single assignment of error.

                       II.    The Rise Was Open and Obvious

       {¶5}     The owner or occupier of property owes no duty to warn a person

entering the premises of an open and obvious danger. Armstrong v. Best Buy Co.,

99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, 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.’ ” Id. at ¶ 5, quoting Simmers v. Bentley Constr.

Co., 64 Ohio St.3d 642, 644, 597 N.E.2d 504 (1992). “A danger is open and obvious if

it is not ‘hidden, concealed from view, or undiscoverable upon ordinary 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.

       {¶6}     We agree with the

trial court that the rise in the floor

was open and obvious. This is a

case where a picture is truly worth

a    thousand      words.          As

demonstrated by the photograph

to the right, the ramp was visible

and distinct from the raised floor. The ramp had a different type of floor covering,



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                       OHIO FIRST DISTRICT COURT OF APPEALS



and the drop was marked with orange tape. In addition, a warning sign on the door

alerted customers to the uneven rise.

        {¶7}      Ms. Lattimore argues that “attendant circumstances” militate against

a finding that the hazard was open and obvious. See Martin v. Christ Hosp., 1st Dist.

Hamilton No. C-060639, 2007-Ohio- 2795, ¶ 19. In determining whether a danger is

open and obvious, a court may consider attendant circumstances that would reduce

the attention of a patron in the same circumstances and increase the risk of a fall.

McGuire v. Sears, Roebuck & Co., 118 Ohio App.3d 494, 499, 693 N.E.2d 807 (1st

Dist.1996). Ms. Lattimore says she was “barely in the front door” when she became

so distracted by a bright display of potato chips and other snacks that she was

oblivious to the rise on the floor. But “attendant circumstances do not include a

person’s activity at the time of a fall unless the person’s attention was diverted by ‘an

unusual circumstance of the property owner’s own making.’ ” Esterman at ¶ 11,

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

4860, ¶ 17.       A potato chip display in a convenience store is hardly “an usual

circumstance.” Even considering the chips, we have little difficulty concluding the

danger confronting Ms. Lattimore was open and obvious.

           III.     Negligence Per Se Analysis Is Not Warranted Here

        {¶8}      Ms. Lattimore also maintains that the trial court erred in failing to

apply the doctrine of negligence per se to find that the defendants owed her a duty of

care.

        {¶9}      Even if a hazard is open and obvious, a landowner or occupier may

still owe a duty to one who comes on the property as the result of a specific legislative

enactment. Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495,

909 N.E.2d 120, ¶ 13. Thus, while “the open-and-obvious doctrine can excuse a



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defendant's breach of a common-law duty of care, it does not override statutory

duties.” Id. at ¶ 14. Violation of such a statutory duty is negligence per se. Id. This

doctrine allows the plaintiff to establish “the first two prongs of the negligence test,

duty and breach of duty, by merely showing that the defendant committed or omitted

a specific act prohibited or required by statute.” Id. at ¶ 15. In order for negligence

per se to apply, however, the legislative enactment must “set[] forth a positive and

definite standard of care.” Mann v. Northgate Investors, L.L.C., 138 Ohio St.3d 175,

2014-Ohio-455, 5 N.E.3d 594, ¶ 29.

       {¶10}   Ms. Lattimore argues that negligence per se should be applied in this

case based upon the purported violation of Cincinnati Municipal Code 1119-03.4. That

section requires that all “stairs, stair landings and railings shall be maintained in

sound condition and good repair.”

       {¶11}   Defendants counter that negligence per se is not applicable here because

the requirement alleged to have been violated was a building code requirement. They

rely upon Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d 120,

where the Ohio Supreme Court found that negligence per se could not be premised on a

violation of the Ohio Building Code. There, the court relied upon the fact that the Ohio

Building Code was not a legislative enactment, but rather was created by administrative

agency employees who implement the legislature’s policy directives. Id. at ¶ 18. The

provision in this case, although comparable in substance to the provision at issue in

Holly Hill, was part of the Cincinnati Municipal Code, enacted by Cincinnati City

Council. The Second Appellate District has concluded that because such municipal code

provisions are legislative enactments rather than administrative regulations, building

code requirements therein could be the basis for a finding of negligence per se. See

Gibbs v. Speedway LLC, 2014-Ohio-3055, 15 N.E.3d 444, ¶ 39 (2d Dist.).



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶12}    Assuming that a violation of the Cincinnati Municipal Code provision

could constitute negligence per se, we still do not find that there is any basis for

application of the principle on the facts before us. Here, the duty imposed by Cincinnati

Municipal Code 1119-03.4 was that railings be maintained in sound condition and good

repair. As we read the provision it does not mandate the existence of a railing, only that

if one exists that it be properly maintained. Nor does Ms. Lattimore point to any other

code section that requires the existence of a railing. Thus, there is no basis to apply

negligence per se.

                                  IV.     Conclusion

       {¶13}    The defendants owed no duty of care to Ms. Lattimore because the

danger was open and obvious and because they were not negligent per se.               The

assignment of error is overruled. The judgment of the trial court is affirmed.

                                                                      Judgment affirmed.

C UNNINGHAM , P.J., and M OCK , J., concur.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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