[Cite as Kobasko v. Jo's Dairy Dream, L.L.C., 2015-Ohio-496.]
                            STATE OF OHIO, BELMONT COUNTY
                                 IN THE COURT OF APPEALS
                                       SEVENTH DISTRICT

DAVID KOBASKO, ET AL.,                                 )
                                                       )
        PLAINTIFFS-APPELLANTS,                         )
                                                       )             CASE NO. 13 BE 35
VS.                                                    )
                                                       )                   OPINION
JO’S DAIRY DREAM, LLC,                                 )
                                                       )
        DEFENDANT-APPELLEE.                            )

CHARACTER OF PROCEEDINGS:                              Civil Appeal from Court of Common
                                                       Pleas of Belmont County, Ohio
                                                       Case No. 12CV321

JUDGMENT:                                              Reversed and Remanded

APPEARANCES:
For Plaintiffs-Appellants                              Attorney Sanford A. Meizlish
                                                       250 E. Broad St., 10th Floor
                                                       Columbus, Ohio 43215

For Defendant-Appellee                                 Attorney Mark A. Kepple
                                                       1219 Chapline St.
                                                       Wheeling, WV 26003




JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro


                                                       Dated: January 26, 2015
[Cite as Kobasko v. Jo's Dairy Dream, L.L.C., 2015-Ohio-496.]
DONOFRIO, J.

        {¶1}    Plaintiffs-appellants, David and Traci Kobasko, appeal from a Belmont
County Common Pleas Court judgment granting summary judgment to defendant-
appellee, Jo’s Dairy Dream, LLC, on appellants’ negligence claim.
        {¶2}    On July 19, 2010, David Kobasko was working for United Dairy making
deliveries. At approximately 4:00 a.m., Kobasko was delivering ice cream mix to Jo’s
Dairy Dream (“Jo’s” or “appellee”) in St. Clairsville. Kobasko was filling in for another
delivery driver that day. He had never been to Jo’s before. Kobasko had the keys to
Jo’s and was to bring five cases of ice cream mix inside. This required him to use a
dolly to transport the ice cream mix. Kobasko unlocked the door and proceeded to
walk into Jo’s backwards so that he could pull his dolly up the steps and through the
door. It was dark at that time. Jo’s was dimly lit inside with a nightlight and the light
from a Pepsi cooler.
        {¶3}    As Kobasko backed into Jo’s and pulled his dolly through the door, he
fell down a flight of stairs directly behind him. He was injured as a result of the fall.
        {¶4}    Appellants filed a negligence complaint against appellee alleging
appellee failed to maintain its premises in a reasonably safe condition. Appellee filed
a motion for summary judgment asserting the stairway and the darkness were open
and obvious conditions and, therefore, it had no duty to warn Kobasko of any
dangers. Appellants filed a response in opposition arguing that the open and obvious
defense raised several questions of fact that precluded summary judgment. They
claimed the obviousness of the unguarded and inadequately illuminated stairway and
its proximity to the entrance were factual issues for a jury.
        {¶5}    The trial court granted appellee’s summary judgment motion.           After
setting out the undisputed facts, the court made the following findings. Kobasko was
appellee’s business invitee. Darkness is not a concealed defect. It was open and
obvious that someone could not see and trip over or down anything. The darkness
was easily resolvable, and therefore, the stairs were easily discoverable and
avoidable. Appellee did not present any hidden hazard. Appellee had no duty to
warn Kobasko of obvious darkness and to explain to him the risks of walking into an
                                                                               -2-


unknown location in total darkness. The fact that the lights were not on and they
could have been on does not mean appellee maintained the premises in an unsafe
condition. Therefore, the court found no genuine issue of material fact and awarded
summary judgment in appellee’s favor.
      {¶6}   Appellants filed a timely notice of appeal on November 5, 2013.
      {¶7}   Appellants now raise a single assignment of error that states:

             THE TRIAL COURT ERRED IN GRANTING SUMMARY
      JUDGMENT IN FAVOR OF DEFENDANT-APPELLEE WHEN THE
      CASE PRESENTS GENUINE ISSUES OF MATERIAL FACT AND
      DEFENDANT-APPELLEE WAS NOT ENTITLED TO JUDGMENT AS A
      MATTER OF LAW.

      {¶8}   In reviewing a trial court's decision on a summary judgment motion,
appellate courts apply a de novo standard of review.        Cole v. Am. Industries &
Resources Corp., 128 Ohio App.3d 546, 552, 715 N.E.2d 1179 (7th Dist.1998).
Thus, we shall apply the same test as the trial court in determining whether summary
judgment was proper. Civ.R. 56(C) provides that the trial court shall render summary
judgment if no genuine issue of material fact exists and when construing the
evidence most strongly in favor of the nonmoving party, reasonable minds can only
conclude that the moving party is entitled to judgment as a matter of law. State ex
rel. Parsons v. Flemming, 68 Ohio St.3d 509, 511, 628 N.E.2d 1377 (1994).            A
“material fact” depends on the substantive law of the claim being litigated. Hoyt, Inc.
v. Gordon & Assoc., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th
Dist.1995), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986).
      {¶9}   Appellants argue that because Kobasko was appellee’s business
invitee, appellee owed him a duty to warn of hidden dangers. They contend the open
and obvious doctrine raises questions of fact in this case that preclude summary
judgment. Appellants point our attention to the obviousness of the risk presented by
                                                                              -3-


an unguarded, unprotected, and inadequately illuminated stairway that is in close
proximity to the entryway of the business, which they assert is a factual issue.
Appellants further assert that the poor lighting alone could constitute an attendant
circumstance that would preclude summary judgment.
      {¶10} A negligence claim requires the plaintiff to prove: (1) duty; (2) breach of
duty; (3) causation; and (4) damages. Anderson v. St. Francis-St. George Hosp.,
Inc., 77 Ohio St.3d 82, 84, 671 N.E.2d 225 (1996).
      {¶11} In this case, Kobasko was appellee's business invitee.          “Business
invitees are persons who come upon the premises of another, by invitation, express
or implied, for some purpose which is beneficial to the owner.”         Light v. Ohio
University, 28 Ohio St.3d 66, 68, 502 N.E.2d 611 (1986). Kobasko was at Jo’s for
the purpose of delivering ice cream mix that Jo’s owner, Nancy Kelich, had ordered.
(Kelich Dep. 13). Kelich knew someone from United Dairy was going to deliver her
order on the morning in question. (Kelich Dep. 13). Thus, Kobasko was on Jo’s
premises by Kelich’s implied invitation to deliver the ice cream mix Kelich had
ordered for the benefit of her business.
      {¶12} Generally, a premises owner owes a business invitee a duty to exercise
ordinary care and to protect the invitee by maintaining the premises in a safe
condition. Id.; Presley v. Norwood, 36 Ohio St.2d 29, 31, 202 N.E.2d 81 (1973).
      {¶13} But a business owner does not owe invitees a duty to warn of dangers
that are open and obvious. Armstrong v. Best Buy Co. Inc., 99 Ohio St.3d 79, 2003-
Ohio-2573, 788 N.E.2d 1088, ¶5.            “Where a danger is open and obvious, a
landowner owes no duty of care to individuals lawfully on the premises.” Id. at the
syllabus.   That is because the owner may reasonably expect those entering the
property to discover the dangers and take appropriate measures to protect
themselves. Simmers v. Bentley Constr. Co., 64 Ohio St.2d 642, 644, 597 N.E.2d
504 (1992).
      {¶14} The trial court found that the darkness on the night Kobasko fell was
open and obvious. It further found the darkness was easily resolvable and, therefore,
                                                                               -4-


the stairs were easily discoverable and avoidable.
      {¶15} We are to look objectively at whether a particular danger is open and
obvious, without regard to the injured plaintiff. Hissong v. Miller, 186 Ohio App.3d
345, 2010-Ohio-961, 927 N.E.2d 1161, ¶10 (2d Dist.).          As such, the open-and-
obvious test “‘properly considers the nature of the dangerous condition itself, as
opposed to the nature of the plaintiff's conduct in encountering it.’”     Id., quoting
Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088,
¶13. A plaintiff’s failure to look where he is walking is not necessarily dispositive of
whether a danger is open and obvious. Id. at 12. But if the plaintiff admits that had
he looked down he would have noticed the danger, then the danger is open and
obvious. Id.
      {¶16} Whether a particular danger is open and obvious is very fact specific
and, therefore, comparing the facts of this case to other cases is of limited value.
Kidder v. Kroger, 2d Dist. No. 20405, 2004-Ohio-4261, ¶11.
      {¶17} The facts in this case are as follows.        Kobasko arrived at Jo’s at
approximately 4:00 a.m. (Kobasko Dep. 34). He had never been inside Jo’s before.
(Kobasko Dep. 33). The inside of Jo’s had minimal lighting. (Kobasko Dep. 35). The
ceiling lights were not on. (Kobasko Dep. 35). Kobasko did not turn on any lights
when he entered the building. (Kobasko Dep. 39).
      {¶18} Kelich knew United Dairy was to make a delivery sometime overnight.
(Kelich Dep. 13). Nonetheless, she turned off the ceiling lights when she closed Jo’s
at 10:00 p.m. (Kelich Dep. 27). Kelich stated that Jo’s is “well lit” at night by a
nightlight in the hallway and the light from the Pepsi cooler in the kitchen. (Kelich
Dep. 25-26). Kelich “believed” the light from the Pepsi cooler in the kitchen would
have illuminated the threshold of the entrance door. (Kelich Dep. 26). She estimated
that the Pepsi cooler was 10 to 12 feet from the entrance way and stated it contained
two light bulbs. (Kelich Dep. 28). Additionally, Kelich admitted that the stove and the
convection oven were in front of the cooler and might “block off a little bit” of light.
(Kelich Dep. 28-29). But she stated there was also a window above the oven that let
                                                                               -5-


in the light from a pole in the parking lot. (Kelich Dep. 29).
       {¶19} Kobasko used his key to enter the door. (Kobasko Dep. 35). He had a
dolly stocked with five cases of ice cream mix weighing approximately 250 pounds.
(Kobasko Dep. 43, 45). Kobasko entered the building walking backwards so that he
could pull his dolly up the steps leading to the door.     (Kobasko Dep. 36-37). Once
Kobasko entered Jo’s, he continued to walk backwards because there was no room
to turn the dolly around. (Kobasko Dep. 37). As Kobasko pulled his dolly through the
threshold of the door, he fell down the basement steps.           (Kobasko Dep. 38).
Kobasko could not recall whether he looked to see what was on the other side of the
threshold. (Kobasko Dep. 39). But he did state that he looked where he was going
and if he had seen the steps, he would not have fallen down them. (Kobasko Dep.
38).
       {¶20} According to Kelich, the distance from the threshold of the door to the
opening in the floor for the stairway is four to four-and-a-half feet. (Kelich Dep. 22).
For Kelich, that was about five steps. (Kelich Dep. 22).
       {¶21} This case depends on whether a genuine issue of material fact exists
as to whether the open stairway in Jo’s was an open and obvious danger given the
lighting conditions. Where reasonable minds can differ with respect to whether a
danger is open and obvious, the obviousness of the risk is a factual issue for the jury
to determine. Klauss v. Glassman, 8th Dist. No. 84799, 2005-Ohio-1306, ¶18.
       {¶22} A genuine issue of material fact exists based on the proximity of the
open staircase to the entranceway and the lighting conditions at the time of
Kobasko’s fall.
       {¶23} Attendant circumstances may exist that distract a person from
exercising the degree of care an ordinary person would have exercised to avoid the
danger and can create a genuine issue of material fact as to whether a particular
hazard is open and obvious. Carpenter v. Mt. Vernon Gateway, Ltd., 5th Dist. No.
13CA6, 2014-Ohio-465, ¶23, quoting Aycock v. Sandy Valley Church of God, 5th
Dist. No.2006AP090054, 2008-Ohio-105. Thus, “the open and obvious rule does not
                                                                                -6-


apply if attendant circumstances prevent the invitee from discovering the otherwise
open and obvious danger.” Boston v. A&B Sales, Inc., 7th Dist. No. 11 BE 2, 2011-
Ohio-6427, ¶29, citing Zuzan v. Shutrump, 155 Ohio App.3d 589, 802 N.E.2d 683,
2003-Ohio-7285, ¶15 (7th Dist.). Attendant circumstances are distractions that would
come to the attention of a person in the same circumstances and reduce the degree
of care an ordinary person would exercise at the time. Id., citing Godwin v. Erb, 167
Ohio App.3d 645, 856 N.E.2d 321, 2006-Ohio-3638, ¶36 (5th Dist.).
       {¶24} Darkness is a warning of danger and may not be disregarded. Jeswald
v. Hutt, 15 Ohio St. 2d 224, 239 N.E.2d 37 (1968), paragraph three of the syllabus.
But this case does not involve total darkness. Instead, it involves either a dimly-lit or
a well-lit shop, depending on whose statements are taken as true. Additionally, it
involves an open stairway just steps from the threshold of the shop.
       {¶25} In two similar cases, the courts found genuine issues of fact existed to
preclude summary judgment.
       {¶26} First, in Hissong, 186 Ohio App.3d 345, Hissong sustained injuries by
falling down a flight of stairs after walking into what she thought was a restroom in a
footwear store, following directions from a clerk. She opened the door inward about a
foot and a half. As the door opened, she walked in and reached for a light switch and
fell down a flight of stairs. The Second Appellate District concluded the danger was
not open and obvious:
                 Do most people look down before stepping inside a restroom?
       This question, we think, cannot be answered as a matter of law. On the
       one hand, one can reasonably think that people should always watch
       where they step, so one could conclude that by not looking down
       Hissong failed to exercise ordinary care to protect herself from a visible
       danger.
                 On the other hand, one could also reasonably think that most
       people, like Hissong, simply do not look down when stepping into a
       restroom. One could think that a door, particularly one that opens
                                                                               -7-


       inward like the door here, hides the danger. See Allgauer v. Le Bastille,
       Inc. (1981), 101 Ill.App.3d 978, 981-982, 57 Ill.Dec. 466, 428 N.E.2d
       1146 (a jury could find a concealed danger in “[a] steep staircase
       without any landing or with one beginning before the end of the edge of
       the door when it is opened onto the stair” because “the danger was
       hidden by the door until it was opened and the fact that the stair could
       be seen for the split second plaintiff was placing her foot on it does not
       necessarily remove it from the realm of hidden dangers”). We think this
       question, especially, “invokes the jury's function: to find and apply the
       dictates of the community conscience in the matter.' ” McNally v.
       Liebowitz (1982), 498 Pa. 163, 171, 445 A.2d 716, quoting 2 Harper &
       James, The Law of Torts (1956) Section 22.10.
Id. at ¶¶34-35.
       {¶27} In the second case, a patron of a coffee shop went to use the restroom.
He opened a door, believing it to be the restroom. The hallway he was in was lit, but
the room he entered from the hallway was not. He walked into the room and fell
down a staircase. The patron filed a negligence suit against the coffee shop. The
trial court granted summary to the coffee shop, finding that the darkness was an open
and obvious danger and, therefore, the coffee shop owed no duty to the patron.
Relying on Hissong, the Eleventh District reversed finding:
                  Similarly here, reasonable minds could differ as to whether the
       dangers in this case were open and obvious. It cannot be concluded
       that a reasonable person would find the danger of darkness in this case
       to be open and obvious, especially when the darkness is not revealed
       until the doorway is opened, and at that point, absent an awkward halt,
       one foot may already be in the room. Moreover, one could conclude the
       darkness is not necessarily dangerous, but common or expected
       because many public establishments do not keep a light on in a
       restroom at all times, just as one would not find a staircase in an unlit
                                                                                -8-


      restroom. That is, a jury may conclude the hazard itself (darkness) may
      not act as a warning in this setting to a reasonable observer, upsetting
      the rationale of the doctrine.
               Further, the unmarked door opened inward, and those invitees
      unfamiliar with the passage would find themselves instantaneously atop
      a stairwell. One could similarly conclude that the doorway concealed
      the stairwell. Even a well-lit passage could lead to injury on stairs that
      are not noticeable until the door swings open, and as the Second
      District opined, whether it is reasonable for a person to look down when
      entering what they might reasonably believe to be a bathroom is a
      factual question for a jury. Id. That is, the hazard (the stairwell) may not
      have been apparent to a reasonable person in the ordinary course.
               In either respect, these are matters for a jury to decide. We
      cannot conclude that, as a matter of law, the open-and-obvious doctrine
      precludes recovery with regard to the duty element of appellants'
      negligence claim.
Miller v. Wayman, 11th Dist. No. 2012-G-3057, 2012-Ohio-5598, ¶¶39-41.
      {¶28} Moreover, this court has found that poor lighting conditions can be an
attendant circumstance that prevents an invitee from discovering an otherwise open-
and-obvious danger. Boston, at ¶48 (poor lighting conditions in a hallway created a
genuine issue of material fact as to whether water on the floor was open and
obvious); Smith v. Gracon, 7th Dist. No. 05 MA 125, 2006-Ohio-886, ¶18 (“lack of
lighting could dramatically hinder a person's ability to protect themselves against
open and obvious dangers in a crosswalk or sidewalk.”).
      {¶29} The parties both described the lighting in Jo’s on the night of Kobasko’s
fall. The parties agreed that the ceiling lights were not on. (Kobasko Dep. 35; Kelich
Dep. 27). Kobasko described Jo’s as having “minimal lighting” and agreed there
were only “little lights here and there.” (Kobasko Dep. 35). Kelich, on the other hand,
described Jo’s at night as being “well lit” by a nightlight and Pepsi cooler light.
                                                                                 -9-


(Kelich Dep. 25-26). Construing the facts in appellants’ favor, as we are required to
do, leads us to presume the store was only dimly lit.
       {¶30} The trial court found that the darkness was not a concealed defect and
the darkness was open and obvious. However, the trial court failed to take into
consideration that this was not a case of total darkness, which would be an open and
obvious danger Kobasko. Additionally, this case involved an open staircase just
steps inside the doorway, which may or may not have been open and obvious under
the circumstances.
       {¶31} The trial court also found that the darkness was resolvable, presumably
because Kobasko could have turned on a light or carried a flashlight as appellee
suggested. When asked about this at his deposition, however, Kobasko stated that
he was only in the entranceway and had not entered “the meat” of the building.
(Kobasko Dep. 39). He stated he was not yet in an area where he could turn the
lights on. (Kobasko Dep. 39). Moreover, Kobasko stated that the store was dimly lit
with “little lights here and there.”    (Kobasko Dep. 35).       So the shop was not
completely dark.
       {¶32} As appellants argue in their brief, ordinary care for one’s own safety
does not require a person to anticipate the negligence of another. Artez v. Rue, 106
Ohio App.3d 605, 606, 666 N.E.2d 652 (1st Dist.1995). Thus, it is unreasonable to
place the burden on Kobasko to look for any dangers (such as an open, unguarded
stairway four feet in front of the entrance way) by further illuminating appellee’s store
when he is on the premises making a delivery for appellee’s benefit.
       {¶33} Additionally, the open stairway down which Kobasko fell was only four
feet from the threshold of the entrance door.        It is conceivable that an ordinary
person, who had never been to Jo’s before, who entered the dimly-lit building might
fall down an unguarded stairway that was located only four feet in front of the
entrance. This is a genuine issue of material fact that should be left for a jury.
       {¶34} Accordingly, appellants’ sole assignment of error has merit.
                                                                                  - 10 -


      {¶35} For the reasons stated above, the trial court’s judgment is hereby
reversed and the matter is remanded to the trial court for further proceedings.

Vukovich, J., concurs.

DeGenaro, P.J., dissents with dissenting opinion attached.

DeGenaro, J., dissents.
      {¶36} Because the majority has misapplied the open and obvious doctrine to
the facts of this case, I dissent. The darkness in this case constitutes an open and
obvious danger, negating any duty appellees owed to Kobasko, and warranting the
trial court granting summary judgment in appellee's favor.
      {¶37} Given the facts of this case, the darkness was not an attendant
circumstance; it was the open and obvious danger which in and of itself served as a
warning, thereby negating any duty. "'Darkness' is always a warning of danger, and
for one's own protection it may not be disregarded." Jeswald v. Hutt, 15 Ohio St.2d
224, 239 N.E.2d 37 (1968), paragraph three of the syllabus.          This District has
similarly recognized in multiple cases that "[d]arkness itself constitutes a sign of
danger, and the person who disregards a dark condition does so at his or her own
peril." Bionci v. Boardman Local Schools, 7th Dist. No. 00 CA 6, 00 CA 83, 2001-
Ohio-3197, *3; Nemit v. St. Elizabeth Hosp. Med. Ctr., 7th Dist. No. 99–CA–202,
2001-Ohio-3315, *4; Mowery v. Shoaf,148 Ohio App.3d 403, 411, 2002-Ohio-3006,
773 N.E.2d 1053, 1059, ¶ 39-41. In Mowery, we held that in a slip and fall situation,
darkness defeats the duty element in a negligence claim, and affirmed summary
judgment in favor of the property owner. Id., ¶ 38, ¶ 59-60.
      {¶38} The trial court correctly concluded that the darkness was an open and
obvious danger, negating the duty element of appellants' negligence claim.
Accordingly, the trial court's summary judgment in favor of appellee should be
affirmed.
