[Cite as Price v. Dept. of Rehab & Corr., 2014-Ohio-3522.]




                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

Raymond Price,                                       :

                 Plaintiff-Appellant,                :
                                                                    No. 14AP-11
v.                                                   :        (Ct. of Cl. No. 2012-05959)

Department of Rehabilitation and                     :        (REGULAR CALENDAR)
Correction,
                                                     :
                 Defendant-Appellee.
                                                     :


                                            D E C I S I O N

                                     Rendered on August 14, 2014


                 Swope and Swope and Richard F. Swope, for appellant.

                 Michael DeWine, Attorney General, Stacy Hannan and
                 Frank S. Carson, for appellee.

                             APPEAL from the Court of Claims of Ohio

DORRIAN, J.
        {¶ 1} Plaintiff-appellant, Raymond Price ("appellant"), appeals the December 4,
2013 judgment of the Court of Claims of Ohio granting summary judgment in favor of
defendant-appellee, Ohio Department of Rehabilitation and Correction ("ODRC"). For
the reasons that follow, we affirm the judgment of the trial court.
I. Facts and Procedural History
        {¶ 2} Appellant, at all times relevant to the instant matter, was an inmate in the
custody of ODRC at the Hocking Correctional Facility. On July 2, 2012, while walking to
the restroom, appellant tripped over a large chair and fell.
No. 14AP-11                                                                                 2


       {¶ 3} On August 3, 2012, appellant, proceeding pro se, filed a complaint in the
trial court, alleging ODRC negligently positioned the chair so as to create a hazard. On
November 9, 2012, appellant, with the representation of counsel, filed an amended
complaint.
       {¶ 4} On October 10, 2013, ODRC filed a motion for summary judgment pursuant
to Civ.R. 56. After being fully briefed by the parties, the trial court granted ODRC's motion
for summary judgment on December 4, 2013.
II. Assignments of Error
       {¶ 5} Appellant appeals assigning the following error for our review:
              THE TRIAL COURT ERRED IN GRANTING DEFENDANT-
              APPELLEE'S MOTION FOR SUMMARY JUDGMENT.
       {¶ 6} An appellate court reviews summary judgment under a de novo standard.
Reed v. Davis, 10th Dist. No. 13AP-15, 2013-Ohio-3742, ¶ 9. Summary judgment is proper
only when the parties moving for summary judgment demonstrate: (1) no genuine issue of
material fact exists; (2) the moving parties are entitled to judgment as a matter of law;
and (3) reasonable minds viewing the evidence most strongly in favor of the nonmoving
party could reach but one conclusion, and that conclusion is adverse to the nonmoving
party. Civ.R. 56; Todd Dev. Co., Inc. v. Morgan, 116 Ohio St.3d 461, 2008-Ohio-87, ¶ 11.
       {¶ 7} The party moving for summary judgment bears the initial burden of
informing the trial court of the basis for the motion and identifying those portions of the
record demonstrating the absence of a genuine issue of material fact by pointing to
specific evidence of the type listed in Civ.R. 56(C). Todd at ¶ 12, citing Dresher v. Burt, 75
Ohio St.3d 280, 293 (1996). If the moving party fails to satisfy its initial burden, the court
must deny the motion for summary judgment; however, if the moving party satisfies its
initial burden, summary judgment is appropriate unless the nonmoving party responds,
by affidavit or as otherwise provided under Civ.R. 56, with specific facts demonstrating a
genuine issue exists for trial. Id.; Hall v. Ohio State Univ. College of Humanities, 10th
Dist. No. 11AP-1068, 2012-Ohio-5036, ¶ 12, citing Henkle v. Henkle, 75 Ohio App.3d 732,
735 (12th Dist.1991).
       {¶ 8} " 'Trial courts should award summary judgment with caution, being careful
to resolve doubts and construe evidence in favor of the nonmoving party.' " Vossman v.
No. 14AP-11                                                                              3


AirNet Sys., 10th Dist. No. 12AP-971, 2013-Ohio-4675, ¶ 13, quoting Welco Industries,
Inc. v. Applied Cos., 67 Ohio St.3d 344, 346 (1993), citing Murphy v. Reynoldsburg, 65
Ohio St.3d 356 (1992). " 'Even the inferences to be drawn from the underlying facts
contained in the evidentiary materials, such as affidavits and depositions, must be
construed in a light most favorable to the party opposing the motion.' " Vossman at ¶ 13,
quoting Hannah v. Dayton Power & Light Co., 82 Ohio St.3d 482, 485 (1998), citing
Turner v. Turner, 67 Ohio St.3d 337, 341 (1993).
       {¶ 9} "To prevail in a negligence action, the plaintiff must show (1) the existence
of a duty, (2) a breach of that duty, and (3) an injury proximately resulting from the
breach." Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, ¶ 21. While the state is
not an insurer of the safety of inmates, the state generally owes a duty of reasonable care
and protection from harm to inmates under its custody. Williams v. Ohio Dept. of Rehab.
& Corr., 10th Dist. No. 04AP-1193, 2005-Ohio-2669, ¶ 8, citing Briscoe v. Ohio Dept. of
Rehab. & Corr., 10th Dist. No. 02AP-1109, 2003-Ohio-3533, ¶ 15. A plaintiff is also
required to use reasonable care to ensure his or her own safety. Briscoe at ¶ 20.
       {¶ 10} The open-and-obvious doctrine "eliminates the common law duty of
ordinary care to maintain the premises in a reasonably safe condition and to warn invitees
of latent or hidden dangers that a premises owner owes to invitees." Mann v. Northgate
Investors L.L.C., 10th Dist. No. 11AP-684, 2012-Ohio-2871, ¶ 9, affirmed 138 Ohio St.3d
175, 2014-Ohio-455. The rationale underpinning the open-and-obvious doctrine is that
"the open and obvious nature of the hazard itself serves as a warning, so that owners
reasonably may expect their invitees to discover the hazard and take appropriate
measures to protect themselves against it." Id. "The 'open and obvious doctrine,' where
warranted, may be applied in actions against the ODRC with the result that ODRC would
owe no duty to an injured inmate." Williams at ¶ 8.
       {¶ 11} "If the record reveals no genuine issue of material fact as to whether the
hazard was free from obstruction and readily appreciated by an ordinary person, the open
and obvious nature of the danger may appropriately be determined as a matter of law."
Mayle v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 09AP-541, 2010-Ohio-2774, ¶ 19.
However, a question remains for trial "if reasonable minds could differ about whether the
hazard was free from obstruction and readily appreciated by an ordinary person." Id. See
No. 14AP-11                                                                               4


also Strother v. Hutchinson, 67 Ohio St.2d 282, 286 ("To entitle the plaintiff in a personal
injury suit to have his case submitted to a jury, it is necessary that the plaintiff produce
some evidence upon every element essential to establish liability, or produce evidence of a
fact upon which a reasonable inference may be predicated to support such element.").
       {¶ 12} Here, the parties do not dispute that appellant tripped and fell over a chair
that was moved by an employee of ODRC to a position on the route from the inmate's
common area to the restroom, which appellant was attempting to reach. Appellant
acknowledges that, on the same day prior to the incident in question, he was aware of the
chair and maneuvered around it. Appellant, however, contends that attendant
circumstances existed at the time of the incident, rendering the open-and-obvious
doctrine inapplicable.
       {¶ 13} Attendant circumstances can serve as an exception to the open-and-obvious
doctrine where the circumstances are " 'so abnormal that [they] unreasonably increase[]
the normal risk of a harmful result or reduce[] the degree of care an ordinary person
would exercise.' " Mayle at ¶ 20, quoting Cummin v. Image Mart, Inc., 10th Dist. No.
03AP-1284, 2004-Ohio-2840, ¶ 10. "The attendant circumstances must, taken together,
divert the attention of the pedestrian, significantly enhance the danger of the defect, and
contribute to the fall. * * * Both circumstances contributing to and those reducing the risk
of the defect must be considered." (Citations omitted.) Mayle at ¶ 20. "Although not an
exhaustive list, attendant circumstances can include the following: 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.
       {¶ 14} Appellant asserts that the following attendant circumstances were present:
dim lighting caused by a power outage following a storm, crowding in the aisle near the
restroom due to others coming and going from the restroom, and the configuration of the
chair which obscured the wheels on its legs. Appellant also argues that, at the time of the
incident, he was trying to reach the restroom with haste because he was experiencing
incontinence as a result of a bladder condition.
       {¶ 15} First, we examine appellant's contention that the placement and
configuration of the chair contributed to the hazard. Testimony and exhibits reflect that
No. 14AP-11                                                                                5


the chair had several legs situated near the ground with wheels attached to the bottom of
the legs. Appellant does not contend that the chair was in any way defective, and it cannot
be said that the chair was configured in such a way as to obscure its presence or enhance
its inherent danger. See Cummin at ¶ 10 ("The existence and placement of the chair was
not so abnormal that it unreasonably increased the normal risk of a harmful result or
reduced the degree of care an ordinary person would exercise."). Absent circumstances
increasing the inherent danger, the existence of the chair in this setting is "no different
than the existence of any other stationary object that may be encountered and must be
avoided in the normal course of daily life." Id.
       {¶ 16} Further, appellant, along with other inmates, testified that he was aware of
the chair's position that day prior to the time of the incident. Indeed, appellant saw the
chair being repositioned and had already maneuvered around the chair without incident
once that morning before his fall. As a result, appellant, exercising reasonable care,
should have been familiar with the position of the chair and taken steps to ensure his
safety while passing it. See Mayle at ¶ 24; Bonner v. Glassman, 8th Dist. No. 96924,
2012-Ohio-86,     ¶ 31     (attendant-circumstances   exception   does   not   apply   where
"circumstances should have led the plaintiff to exercise heightened care for his personal
safety" (emphasis sic)).
       {¶ 17} Regarding the lighting of the area in which the incident occurred, other
inmates testified that, although there was no electric lighting due to the power outage,
there was sufficient natural light to play cards, see the chair and podium on the path to
the restroom, and even to see appellant's feet as he tripped over the chair. Appellant
admitted that some natural light from the windows illuminated the room and that it was
customary during the summer for the guards to turn off some lighting in the area since
natural light was sufficient. Even if the lighting was dimmer than normal, "darkness is
always a warning of danger, and may not be disregarded." McCoy v. Kroger Co., 10th
Dist. No. 05AP-7, 2005-Ohio-6965, ¶ 14, citing Jeswald v. Hutt, 15 Ohio St.2d 224, 227
(1968).
       {¶ 18} With regard to crowding on the path to the restroom, appellant testified
that, at the time he was attempting to reach the restroom, he was aware of four or five
inmates in front of him moving toward the restroom and some inmates moving in the
No. 14AP-11                                                                              6


opposite direction. Appellant suggests that this crowding and the narrowness of the space
made it difficult to move past the chair and contributed to the danger of the defect.
However, these conditions were not abnormal in their occurrence as other inmates
testified that the space was small and regularly crowded.
       {¶ 19} The presence of a crowd in and of itself does not constitute an attendant
circumstance so as to preclude the open-and-obvious doctrine. Vanderbilt v. Pier 27, LLC,
12th Dist. No. CA2013-02-029, 2013-Ohio-5205, ¶ 20 (crowd of persons around a fire pit
outside a restaurant did not constitute an attendant circumstance). Given that appellant
was aware of the confines of the space, having successfully traversed the area to reach the
restroom earlier on the same day, we cannot find that the foot traffic and dimensions of
the space created an attendant circumstance. McQueen v. Kings Island, 12th Dist. No.
CA2011-11-117, 2012-Ohio-3539, ¶ 21 (rejecting plaintiff's argument that the presence of a
crowd was a distraction qualifying as an attendant circumstance because plaintiff was not
facing unique circumstances or circumstances of which she was unaware given prior
experience with the area).
       {¶ 20} Finally, we address appellant's contention that his bladder condition caused
a distraction that qualifies as an attendant circumstance. While appellant's condition is
not in dispute, it is an internal, subjective condition, rather than an external, objective
circumstance. See Jenkins v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 12AP-787,
2013-Ohio-5106, ¶ 18 ("[A]n individual's particular sensibilities do not play a role in
determining whether attendant circumstances make the individual unable to appreciate
the danger."); Huey v. Neal, 152 Ohio App.3d 146, 2003-Ohio-391, ¶ 13 (3d Dist.) (finding
that "the fact that [the plaintiff] was in a hurry to get home is not an attendant
circumstance"). Although appellant was distracted by his own urgency, this would not
reduce the degree of care that an ordinary person would exercise.
       {¶ 21} Viewing the evidence most strongly in favor of appellant, reasonable minds
could only conclude that the placement of the chair was an open-and-obvious hazard in
that it was both observable and appreciable by an ordinary person, and such person
would be expected to discover the hazard and take measures to protect himself or herself.
See Mayle at ¶ 30. The circumstances present at the time of the incident, taken together,
were not so abnormal as to divert the attention of appellant, significantly enhance the
No. 14AP-11                                                                                 7


danger of the hazard, and contribute to the fall. See id. at ¶ 20. Therefore, we find that the
evidence does not support application of the attendant-circumstances exception to the
open-and-obvious doctrine and, as a result, appellant cannot establish that ODRC owed a
duty to warn him regarding the chair over which he tripped. See Briscoe at ¶ 20; Williams
at ¶ 15-16.
       {¶ 22} Because appellant failed to demonstrate that a genuine issue of material fact
remained for trial, the trial court properly granted ODRC's motion for summary
judgment. Mayle at ¶ 19; Strother at 286. Accordingly, appellant's assignment of error is
overruled.
III. Disposition
       {¶ 23} Having overruled appellant's sole assignment of error, we affirm the
judgment of the Court of Claims of Ohio.
                                                                        Judgment affirmed.
                       KLATT and LUPER SCHUSTER, JJ., concur.
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