[Cite as Harper v. Chaney, 2013-Ohio-1160.]


STATE OF OHIO                    )                    IN THE COURT OF APPEALS
                                 )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

LORI HARPER                                           C.A. No.    26534

        Appellant

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
JOSEPH CHANEY, et al.                                 COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellees                                     CASE No.   CV 2011-06-2959

                                DECISION AND JOURNAL ENTRY

Dated: March 27, 2013



        MOORE, Presiding Judge.

        {¶1}    Plaintiff-Appellant, Lori Harper, appeals from the March 30, 2012, and June 6,

2012 judgment entries of the Summit County Court of Common Pleas. We reverse.

                                                 I.

        {¶2}    In 2009, Ms. Harper responded to an advertisement for a rental apartment owned

by Defendant-Appellee, Joseph Chaney. In the course of showing the apartment, Mr. Chaney

took Ms. Harper to view the basement. Mr. Chaney went down the basement stairs, followed by

Ms. Harper. At the bottom of the stairs, Ms. Harper fell on an extraneous step beyond the

landing breaking several bones in her left leg, ankle and foot.

        {¶3}    Ms. Harper filed a complaint against Mr. Chaney alleging (1) negligence, and (2)

intentional, reckless and/or negligent infliction of emotional distress.   Mr. Chaney filed an

answer and moved for summary judgment on the issue of negligence alone.
                                                 2


       {¶4}    In his motion, Mr. Chaney argued that he had no duty to warn Ms. Harper of the

step because it is an open and obvious danger. Ms. Harper then filed a memorandum in

opposition. Ms. Harper contended that her deposition testimony, in contrast to Mr. Chaney’s

deposition testimony, created differing views regarding whether the landing step was open and

obvious, and whether she acted reasonably in proceeding from the landing when she did not

know about the existence of the step. As such, Ms. Harper argued that genuine issues of material

fact existed for the trier of fact, and Mr. Chaney’s motion should be denied. Mr. Chaney also

filed a reply memorandum.

       {¶5}    In granting Mr. Chaney’s motion for summary judgment, the trial court

determined that no genuine issues of material fact existed, and Ms. Harper was injured as a result

of an open and obvious danger. The trial court reasoned that:

       At first glance, it appears that there are material issues of fact. Ms. Harper alleges
       that the steps down to the basement were dimly lit, and when she got to the
       landing it was dark. Mr. Chaney alleges that the lights in the basement were
       turned on before Ms. Harper arrived at the building. * * * [T]he Court finds that
       the issue of whether the lights were on is not a material fact. Material facts are
       “‘facts that might affect the outcome of the suit under governing law.’” Ms.
       Harper will be barred from recovery whether the lights were on or off because of
       the open-and-obvious doctrine. If the lights were out, [Ms. Harper] will be barred
       from recovery because darkness is considered an open and obvious danger. And
       if the lights were on, the step from the landing is [an] open and obvious danger.

(Internal citations omitted.)

       {¶6}    Ms. Harper now appeals and raises one assignment of error for our consideration.

                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN GRANTING [MR. CHANEY’S] MOTION
       FOR SUMMARY JUDGMENT [].
                                                 3


        {¶7}   In her sole assignment of error, Ms. Harper argues that the trial court erred by

granting Mr. Chaney’s motion for summary judgment. Specifically, she argues that genuine

issues of material fact remain as to whether: (1) Mr. Chaney stated that he would “go down first

and turn on some lights,” (2) there were any lights on at the bottom of the stairs, (3) the basement

window was partially blocked by a curtain, (4) Mr. Chaney was fully aware of the existence of

the landing and the step, and Ms. Harper was not aware of either, and (5) the dangerous

condition was open and obvious.

        {¶8}   This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). Pursuant to Civ.R. 56(C), summary judgment is

proper if:

        (1) [n]o genuine issue as to any material fact remains to be litigated; (2) the
        moving party is entitled to judgment as a matter of law; and (3) it appears from
        the evidence that reasonable minds can come to but one conclusion, and viewing
        such evidence most strongly in favor of the party against whom the motion for
        summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). The party moving for summary

judgment bears the initial burden of informing the trial court of the basis for the motion and

pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher

v. Burt, 75 Ohio St.3d 280, 292-93 (1996). The moving party must support the motion by

pointing to some evidence in the record of the type listed in Civ.R. 56(C). Id. at 292-293. Once

this burden is satisfied, the non-moving party bears the burden of offering specific facts to show

a genuine issue for trial.   Id. at 293. The nonmoving party may not rest upon the mere

allegations and denials in the pleadings but instead must point to, or provide, some evidentiary

material that demonstrates a genuine dispute over a material fact. In re Fike Trust, 9th Dist. No.

06CA0018, 2006-Ohio-6332, ¶ 10.
                                                4


       {¶9}    “In order to succeed under an action for negligence, a plaintiff must show the

existence of a duty, a breach of that duty, and that the breach of that duty was the proximate

cause of the plaintiff’s injuries.”    Galo v. Carron Asphalt Paving, Inc., 9th Dist. No.

08CA009374, 2008-Ohio-5001, ¶ 8, citing Chambers v. St. Mary’s School, 82 Ohio St.3d 563,

565 (1998). “Generally, an owner owes a duty of ordinary care to a business invitee for

hazardous conditions on the property.” Gardner v. Kinstlinger, 9th Dist. No. 26374, 2012-Ohio-

5486, ¶ 7. However, where a danger is open and obvious, the owner owes no such duty. See

Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, syllabus.

       {¶10} If a danger is open and obvious, “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.”

Zambo v. Tom-Car Foods, 9th Dist. No. 09CA009619, 2010-Ohio-474, ¶ 7, quoting Simmers v.

Bentley Constr. Co., 64 Ohio St.3d 642, 644 (1992). Further, when considering whether a

danger is open and obvious, a court must look to the totality of the circumstances and consider

the hazard itself and any attendant circumstances that may have existed at the time of the injury.

Zambo at ¶ 9. Additionally, “[o]pen and obvious dangers are not hidden, are not concealed from

view, and are discoverable upon ordinary inspection.” Id. at ¶ 8.

       {¶11} However, where a danger is not open and obvious, an owner “owes a duty * * * to

warn any invitees of latent or concealed defects of which the [owner] has or should have

knowledge.” Campbell v. GMS Management Co., Inc., 9th Dist. No. 16403, 1994 WL 108886,

*1 (Mar. 30, 1994). “[T]he mere occurrence of an injury to a business invitee does not give rise

to a presumption or an inference of negligence.” Thomas v. Rebman Recreation, Inc., 9th Dist.

No. 02CA008194, 2003-Ohio-2640, ¶ 8. Rather, the injured party must show that the owner had
                                                5


actual or constructive knowledge of the condition. See Alvarez v. Natl. City Bank, 9th Dist. No.

24292, 2008-Ohio-444, ¶ 7; Thomas at ¶ 13.

       {¶12} In support of his motion for summary judgment, and his contention that the step

posed an open and obvious danger, Mr. Chaney pointed to Ms. Harper’s deposition testimony,

his own deposition testimony, and several photographs of the basement taken months after the

accident occurred. In her deposition, Ms. Harper testified as follows:

       ***

       Q. We were talking about your path through the rental property and you were
       telling me that you were at the top of the stairs.

       A. Um-hum.

       Q. And that my client was at the top of the stairs as well.

       A. Um-hum.

       Q. And you said you looked down and you were able to see light from a window.

       A. Um-hum.

       Q. Were you able to see the window from the top of the stairs?

       A. I didn’t look at the window. I just know there was some light coming in as if
       from a window. It was daylight.

       Q. Were there—you said that [Mr. Chaney] had turned on a light at the top of the
       landing, correct?

       A. Correct.

       Q. And I am sorry, what did he say then, or what happened then?

       A. He said “Let me go down first and turn on some lights.”

       Q. Okay. And then what happened?

       A. Then he went down the steps and I was at the top of the steps and as I started
       to come down a couple of steps, he went off—I don’t know where he went. He
       disappeared out of my sight and I think I heard a door open at that time.
                                         6


So as I continued down the steps, got to the bottom of the steps, I was looking
around to see where he went, and I turned to my right, and took a couple of steps
to look behind the steps to see what was back there. I was actually looking to see
where the washer and dryer were. And that is when I fell. That is where I fell.

***

Q. Was it of any concern to you about going down into a basement with no
lights?

A. There was daylight coming from the window. It wasn’t pitch black. I could
see that there were steps and I clearly went down the steps fine.

Q. Did [Mr. Chaney] ever tell you, “Okay. The lights are on,” anything to that
effect?

A. No.

Q. Did you ever see him turn any lights on?

A. No.

***

Q. Did you believe that as you went down the steps, there was plenty of natural
light or other light which made it capable [sic] for you to see clearly where you
were going?

A. Well, I guess it depends on what you meant by “plenty.” I could see enough to
navigate the stairs.

***

Q. When you got to the bottom of the stairs, you stepped down the bottom, onto
the concrete?

A. Correct.

Q. And the window that you talked about, would that have been facing directly in
front of you?

A. Yes.

Q. And then you said that you turned to the right?

A. Yes.

Q. As you turned to the right, did you notice any lights being on at all?
                                         7


A. No. It was dark and I turned like I previously said, to see if the washer and
dryer or off in that direction, and that is the point when I fell.

***

Q. You chose to go down the steps before you were aware that [Mr. Chaney] had
turned the light on; is that correct?

A. I chose to go down the steps that I could see well enough to see, and then I
was standing holding onto the railing at the bottom of the landing, and like I said,
turned, I was waiting for this light to come on. But in the meantime, I am just
looking around to see what is under the steps.

Q. So you are waiting for the light to come on, the light never comes on?

A. No.

Q. And you choose to continue walking into an area that you can’t see; is that a
fair statement?

A. I really wasn’t planning on walking, I was just going to look around that
corner.

***

Q. Well, you did take some steps from the bottom of the steps, right?

A. I took like two steps, yes, if that. Maybe one.

Q. So you moved, you ambulated your body?

A. Yes, right.

Q. You moved from one place to another?

A. Um-hum.

Q. And were you able to see in that area?

A. I was able to see from, again, the light from the window.

Q. Were you able to see the floor?

A. I wasn’t looking at the floor, I was looking straight ahead to see if there was a
washer and a dryer.

Q. When the accident occurred, immediately before that, had you looked at the
area of the floor where you would have been walking.
                                               8


       A. No.

       Q. Why not?

       A. I have no reason to.

       ***

       Q. Now, as you were standing there at the bottom of the steps, if I understood
       correctly, you testified you never looked down at the floor?

       A. No, I didn’t look at the floor.

       Q. As you turned and started walking, you never looked at the floor?

       A. Correct.

       Q. And also if I understood—well, let me ask you this: Had you looked at the
       floor, would the natural light that was in there have illuminated it to have shown
       the step where you fell?

       A. No, because the step went down—if the step was an up step from where I was,
       it might have—light might have been reflecting on that. But because it was a
       down step, no, it wasn’t illuminated.

       ***

       Q. Okay. Had you, before you took the steps that you took, the couple of steps,
       had you looked down at the ground, do you believe you would have seen that
       step?

       A. I can’t say. It could go either way.     But I am guessing—it could go either
       way. I have no idea, because—

       Q. You are just not sure?

       A. Not sure, yeah.

       ***

(Emphasis added.)

       {¶13} It is well-settled that “[e]ven when an invitee does not actually see the object or

danger until after he or she falls, no duty exists when the invitee could have seen the object or

danger if he or she had looked.” McDonald v. Marbella Restaurant, 8th Dist. No. 89810, 2008-
                                                 9


Ohio-3667, ¶ 28, citing Haymond v. BP America, 8th Dist. No. 86733, 2006-Ohio-2732, ¶ 16.

As such, “[c]ourts must consider whether the object or danger itself was observable.” (Emphasis

added.) McDonald at ¶ 28.

       {¶14} Here, Ms. Harper testified that, on the day of her accident, there was enough

natural light coming from a window for her to safely navigate down the basement stairs. Further,

Ms. Harper testified that when she reached the concrete platform at the bottom of the stairs and

turned right, the lighting situation changed and the room became darker. However, Ms. Harper

also indicated that, although the room was dark, it was not “pitch black.” Finally, Ms. Harper

admitted that when she turned to take a couple steps to her right, she never looked down at the

floor. When asked if she thought she would have seen the step had she looked down at the floor,

Ms. Harper stated, “I can’t say. It could go either way. * * * I have no idea[.]” Mr. Chaney did

not present any evidence with regard to whether the step was visible, in any type of lighting, had

Ms. Harper been looking down at the floor on the day of her accident. As previously stated,

although Mr. Chaney provided photographs of the basement stairs and step, he admitted that

those photographs were not taken at the precise time of the accident, and as such, they do not

depict the same conditions that existed on the day of the accident.

       {¶15} Viewing the evidence in a light most favorable to Ms. Harper, the non-moving

party, we conclude that the totality of the circumstances give rise to a question of fact regarding

whether Ms. Harper would have been able to observe the step had she been looking down at the

basement floor on the day of her accident. See Zambo at ¶ 9. Specifically, there was evidence of

some daylight streaming in from a basement window, which may or may not have been partially

obstructed by a curtain.    Further, there was evidence of sufficient lighting to descend the

basement stairs, but insufficient lighting in the area beyond the basement stairs where this
                                                10


seemingly random step was located. While the trier of fact may ultimately find that, under these

lighting conditions, Ms. Harper was reasonably expected to discover the step and avoid the

hazard, we believe that such a factual determination must be resolved in Ms. Harper’s favor at

this stage of the proceedings. Accordingly, this Court concludes that a genuine issue of material

fact exists as to whether, under the existing lighting conditions, the step posed an open and

obvious danger. See Marock v. Barberton Liedertafel, 9th Dist. No. 23111, 2006-Ohio-5423, ¶

19.

       {¶16} Therefore, because Mr. Chaney did not meet his initial Dresher burden in

establishing that no genuine issues of material fact existed, he is not entitled to judgment as a

matter of law, and the trial court erred in granting his motion for summary judgment.

       {¶17} Ms. Harper’s assignment of error is sustained.

                                                III.

       {¶18} In sustaining Ms. Harper’s sole assignment of error, the judgment of the Summit

County Court of Common Pleas is reversed and the cause remanded for further proceedings

consistent with this decision.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
                                                11


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     CARLA MOORE
                                                     FOR THE COURT



WHITMORE, J.
BELFANCE, J.
CONCUR.


APPEARANCES:

ROBERT C. MEEKER, Attorney at Law, for Appellant.

EDWARD A. DARK, Attorney at Law, for Appellee.
