[Cite as Colville v. Meijer Stores Ltd., 2012-Ohio-2413.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                     MIAMI COUNTY

SHARON COLVILLE                                    :
                                                   :     Appellate Case No. 2011-CA-011
        Plaintiff-Appellant                        :
                                                   :     Trial Court Case No. 10-204
v.                                                 :
                                                   :
MEIJER STORES LIMITED                              :     (Civil Appeal from
PARTNERSHIP, et al.                                :     (Common Pleas Court)
                                                   :
        Defendant-Appellees                        :
                                                   :
                                                ...........

                                               OPINION

                                 Rendered on the 1st day of June, 2012.
                                              .........


JEFFREY G. CHINAULT, Atty. Reg. #0076723, Dyer, Garofalo, Mann & Schultz, 131 N.
Ludlow Street, Suite 1400, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellant, Sharon Colville

ERIN B. MOORE, Atty. Reg. #0061638, and JARED WAGNER, Atty. Reg. #0076674,
Green & Green, Lawyers, 800 Performance Place, 109 N. Main Street, Dayton, Ohio 45402
      Attorneys for Defendant-Appellee, Meijer Stores


STEVEN F. STOFEL, Atty Reg. #0073332, and BRIAN R. McHENRY, Atty. Reg.
#0065876, 130 West Second Street, Suite 1850, Dayton, Ohkiio 45402
      Attorney for Defendant-Appellee, Home City Ice Company
                                                                                               2


                                            .........
HALL, J.

       {¶ 1}     This is an appeal from a final order granting both Defendants’ respective

motions for summary judgment in Plaintiff’s action claiming damages for personal injuries

she suffered in a slip-and-fall accident.

       {¶ 2}    The action was commenced by Sharon Colville against Meijer Stores Limited

Partnership (“Meijer”) and The Home City Ice Company (“Home City Ice”). The complaint

alleged that Colville was injured as a proximate result of her slip and fall in a Meijer store that

proximately resulted from a hazardous condition that Meijer and Home City Ice negligently

permitted to exist.

       {¶ 3}     Meijer and Home City Ice each filed a responsive pleading denying the

allegations of negligence and claims of liability. Thereafter, depositions were taken of the

plaintiff, Sharon Colville, and two other witnesses, Claudia J. Bates and Ian Unger.

       {¶ 4}     Colville testified that on the morning of June 29, 2008, she drove to the

Meijer store in Troy, Ohio, to purchase groceries and pay her credit-card bill. When she

drove her car into the store parking lot, Colville “noticed a white panel truck in the parking lot

in front of the east door * * * unloading ice.” (T. 20). Colville parked her car near the east

entrance and entered Meijer around 11:50 a.m.

       {¶ 5}     Colville paid her credit-card bill at the service desk and then walked through

the women’s clothing department, just to look. She then “walked to the grocery section and

got * * * peaches, sunflower seeds, and a kind of berry juice and some Diet Coke and

check[ed] out of the self-service lane.” (T. 21). The self-service lanes are near the store’s

west entrance. Colville then made her way toward the east entrance, where she had entered,
                                                                                            3


pushing a grocery cart containing her purchases. The aisle she followed runs the width of the

store, between the store’s front windows and the check-out lanes.

       {¶ 6}       Colville testified that she did not notice anything unusual. (T. 25). She

said that she saw people in the check-out lanes and “was walking toward the door watching to

make sure no one came out and got in my way.” (T. 26). Colville said she was focused on

the door she was approaching: she “had the cart in front of [her]” and “wasn’t looking at the

ground.” (T. 27). As she neared the east-exit door, Colville testified, “[w]hen I got in front

of the ice machine, [I] slipped in something, went down hard on my right knee, all my weight,

hanging onto my cart when I did it.” (T. 21). Colville said she immediately experienced

“intense pain” in her right knee. (T. 29).

       {¶ 7}       Colville testified that she got up and sat on some nearby boxes. When she

stood up from the boxes and looked where she had fallen, Colville “could see that there was

water” on the floor. (T. 27-28). When asked whether she was able to determine that water

was on the floor, Colville testified: “Well, yeah, after I looked.” (T. 28). Colville said she

did not see the water as she approached the location. When asked whether anything had

distracted her before she fell, Colville answered, “No.” (T. 33). She testified that the only

reason she did not see the puddle was because her attention was focused on the door in front

of her. (T. 71).

       {¶ 8}       Colville testified that the water was “[r]ight beside the ice machine. Maybe

two feet from it.” (T. 26). She described the water as being in puddles extending “the

length of the ice machine and two or three inches wide all along there.” (T. 30). She

testified that the puddles were about three-feet long and extended out more than three inches
                                                                                           4


from the ice machine. Colville did not see that the water came from the ice machine, and

couldn’t determine where it came from. (T. 31). And she had no idea how long the puddle

was there before her fall. (T. 34). Colville said that initially she was not aware of the name

of the ice company because “there was no Home City Ice on the truck,” but she said, “I’ve

learned since then * * * because Meijer told me.” (T. 34-35). Colville further testified: “I

knew that they were delivering ice, and I surmised from there as they loaded the bags, the

water dripped from the bags.” (T. 34-35). She was unable to tell who created the puddle,

(T. 35), and she did not know if Home City Ice was aware that there was a puddle on the floor.

(T. 73).

        {¶ 9}     When a store employee approached her, Colville told him about the water on

the floor. Colville said that the employee saw the water when she pointed it out. The

employee then mopped it up. Colville declined ambulance assistance and drove home. She

consulted her physician the following day, and he diagnosed a chipped patella and referred

Colville to an orthopedic surgeon. An MRI revealed a torn meniscus in Colville’s right knee,

and she underwent outpatient surgery to repair it. Colville continues to experience knee and

hip pain that she attributes to her fall.

        {¶ 10}    Claudia J. Bates, who was a service-team leader at Meijer on the day Colville

fell, was also deposed. Bates could recall only speaking with a woman who had slipped and

fallen. Bates subsequently left Meijer’s employ.

        {¶ 11}    Ian Unger, who worked for Home City Ice and delivered ice to Meijer stores

in July 2008, was deposed too. When asked what his job involved, Unger replied, “fill up the

ice box, then you clean up all your messes.” (T. 9). The “messes” could include water on
                                                                                                5


the floor “right in front of the icebox if some ice fell out.” Id. A towel was attached by a

rope to each icebox for that purpose. However, Unger “rarely” found water on the floor

around an icebox. (T. 10).

          {¶ 12}      Unger testified that Home City Ice had a contract with Meijer “to fill their

icebox completely full and bill them.” (T. 14). Delivery persons would inspect the iceboxes

they filled to make sure they were working properly. This included checking for water “at all

times.”        (T. 15).     They were to clean up any water but were to call Home City Ice

maintenance if there were any other problems.

          {¶ 13}      Unger testified that, in his experience, water didn’t drip from ice bags when

they were loaded into an icebox because the ice was solidly frozen. He said that the time it

took to transport the bags from the delivery truck to the icebox was too short to permit any

melting. After watching a video at the offices of counsel for Home City Ice, which may have

depicted Unger delivering ice to the Troy Meijer store on the day Colville slipped and fell,

Unger testified that he saw no water on the floor that day.1

          {¶ 14}      Defendants each filed a motion for summary judgment. Meijer argued that

it cannot be held liable to Colville for her injuries and losses proximately resulting from her

fall on its premises because the puddle of water on which she allegedly slipped was an

open-and-obvious condition as a matter of law. Meijer relied on the Ohio Supreme Court’s

holding in Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088,

and the holding of this Court in Brant v. Meijer, Inc., 2d Dist. Montgomery No. 21369,

2006-Ohio-6300. (Dkt. 25).

           1
           The video is not a part of the record of this proceeding.
                                                                                           6


       {¶ 15}    In her opposition to Meijer’s summary-judgment motion, Colville relied on

her own deposition testimony, arguing that the “attendant circumstances” exception to the

open-and-obvious-condition rule applied. Relying on Godwin v. Erb, 167 Ohio St.3d 645,

2006-Ohio-3638, 856 N.E.2d 321 (5th Dist.), and Hudspath v. Caffaro Co., 11th Dist.

Ashtabula No. 2004-A-0073, 2005-Ohio-6911, Colville argued that her testimony, that she

was pushing a grocery cart containing her purchases, a grocery cart that Meijer supplied for

that very purpose, and was looking around to avoid colliding with shoppers coming from the

check-out lanes is evidence that attendant circumstances were present. This evidence, she

contended, creates a genuine issue of material fact with respect to whether the puddle of water

was an open-and-obvious condition that Colville should have seen. (Dkt. 38).

       {¶ 16}    The trial court granted Meijer’s motion for summary judgment, relying on

our holding in Brant v. Meijer to find that the puddles of water were an open-and-obvious

condition as a matter of law. The court cited Colville’s testimony that she “could see the

puddles after she slipped.” The court rejected Colville’s attendant-circumstances argument,

stating: “Good grief, every shopper has to watch where they are pushing their cart so as not to

run into others and store displays; and it is not as if the carts are moving at 25 mph.” The

court noted that Colville did not say that the cart was so full that it blocked her view of the

floor ahead of her; rather, she “simply indicated she was not looking at the floor.” The court

further found: “The condition in this case was observable; they were the type of conditions

(puddles of water) which are known to be located in front of ice vending machines in the

summer, and there was nothing which distracted the Plaintiff from seeing the puddles and

avoiding them.” (Dkt. 40).
                                                                                             7


       {¶ 17}    In support of its motion for summary judgment, Home City Ice argued that

Colville had no evidence that it was in any way negligent. Home City Ice contended that

Colville’s belief that it was somehow responsible for the puddle of water was purely

speculative. Home City Ice also relied on Unger’s testimony that on the day he was recorded

putting ice into the icebox at the Troy Meijer there was no water on the floor. Finally, Home

City Ice also argued that the puddle was an open-and-obvious condition, relieving it of any

liability under premises liability theory. (Dkt. 30).

       {¶ 18}    Colville argued in her opposition to Home City Ice’s summary-judgment

motion that, based on her testimony that she saw ice being delivered when she arrived at the

Meijer store, reasonable minds could infer that Home City Ice was responsible for the puddle

of water in front of the ice machine that had caused her to slip and fall. Colville relied on the

holding of the Fourth District Court of Appeals in Hickman v. Wal-Mart Stores E., Inc., 4th

Dist. Washington No. 07CA41, 2008-Ohio-1221, in which the appellate court found that

genuine issues of material fact existed as to whether an employee who had earlier been

working on a display with a clear, slick substance was the cause of the “clear waxy substance”

directly in front of the display on which that plaintiff slipped. Colville also pointed to the

same evidence of attendant circumstances that she cited in her opposition to Meijer’s motion

to argue that a genuine issue of material fact existed regarding whether the puddles were an

open-and-obvious condition.

       {¶ 19}    The trial court also granted Home City Ice’s motion for summary judgment.

The court distinguished the holding in Hickman, noting that in that case there was testimony

that Wal-mart’s vendor had been servicing the display in the store containing the waxy
                                                                                              8


substance that later caused the plaintiff to slip and fall.         The court rejected Colville’s

attendant-circumstances argument for the same reasons that it rejected the argument when it

granted Meijer’s motion for summary judgment. (Dkt. 43).

       {¶ 20}    Colville filed a notice of appeal in this Court from both grants of summary

judgment. She now assigns two errors for our review. We will begin with the second

assignment of error, an order that better facilitates our review.

       {¶ 21}    SECOND ASSIGNMENT OF ERROR

                THE       TRIAL         COURT         ERRED           IN     GRANTING

       DEFENDANTS-APPELLEES MEIJER AND HOME CITY SUMMARY

       JUDGMENT BASED ON THE OPEN AND OBVIOUS DOCTRINE.

       {¶ 22}    Summary judgment may not be granted unless the entire record demonstrates

that there is no genuine issue of material fact and that the moving party is, on that record,

entitled to judgment as a matter of law. Civ.R. 56(c). The burden of showing that no

genuine issue of material fact exists is on the moving party.              Harless v. Willis Day

Warehousing Co., 54 Ohio St.2d 64, 375 N.E.2d 46 (1978). All evidence submitted in

connection with a motion for summary judgment must be construed most strongly in favor of

the party against whom the motion is made. Morris v. First National Bank & Trust Co., 21

Ohio St.2d 25, 254 N.E.2d 683 (1970). In reviewing a trial court’s grant of summary

judgment, an appellate court must view the facts in a light most favorable to the party who

opposed the motion. Osborne v. Lyles, 63 Ohio St.3d 326, 587 N.E.2d 825 (1992). Further,

the issues of law involved are reviewed de novo. Nilavar v. Osborn, 127 Ohio App.3d 1, 711

N.E.2d 726 (2d Dist.1998).
                                                                                             9


       {¶ 23}     It is fundamental that in order to establish a cause of action for negligence

the plaintiff must show (1) the existence of a duty, (2) a breach of that duty, and (3) an injury

proximately resulting therefrom. Menifee v. Ohio Welding Prod., Inc., 15 Ohio St.3d 75, 77,

472 N.E.2d 707 (1984).

                A business owner owes an invitee a duty of ordinary care and must

       maintain the business premises in a reasonably safe condition so that invitees

       are not unnecessarily and unreasonably exposed to danger.            Campbell v.

       Hughes Provision Co. (1950), 153 Ohio St. 9, 41 O.O. 107, 90 N.E.2d 694.

       Whether an owner has breached that duty depends on the owner’s knowledge

       of the hazard and opportunity to remove it or warn of it. Anaple v. Standard

       Oil Co. (1955), 162 Ohio St. 537, 55 O.O. 424, 124 N.E.2d 128. Whether

       the owner acted with reasonable care under the circumstances is a question of

       fact for the jury. Keister v. Park Centre Lanes (1981), 3 Ohio App.3d 19, 3

       OBR 20, 443 N.E.2d 532.

[Detrick v. Columbia Sussex Corp., 90 Ohio App.3d 475, 477, 629 N.E.2d 1081 (2d

Dist.1993).]

       {¶ 24}    In Sidle v. Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589 (1968), a boy

delivering newspapers slipped and fell on ice and snow that had accumulated on the front

steps of the defendant’s building. The boy saw the accumulation when he approached the

steps. Affirming a directed verdict for the defendant on the slip-and-fall claim, the Supreme

Court held in its syllabus:

                1. An occupier of premises is under no duty to protect a business
                                                                                           10


       invitee against dangers which are known to such invitee or are so obvious and

       apparent to such invitee that he may reasonably be expected to discover them

       and protect himself against them.

                2.     The dangers from natural accumulations of ice and snow are

       ordinarily so obvious and apparent that an occupier of premises may

       reasonably expect that a business invitee on his premises will discover those

       dangers and protect himself against them. (Debie v.Cochran Pharmacy-

       Berwick, Inc., 11 Ohio St.2d 38, 227 N.E.2d 603, approved and followed.)

                3. Ordinarily, an owner and occupier has no duty to his business invitee

       to remove natural accumulations of snow and ice from private walks and steps

       on his premises. (Paragraph two of the syllabus in Debie v. Cochran

       Pharmacy- Berwick, Inc., 11 Ohio St.2d 38, 227 N.E.2d 603, approved and

       followed.)

       {¶ 25}        In Brant v. Meijer, Inc., 2d Dist. Montgomery No. 21369, 2006-Ohio-6300,

the plaintiff slipped and fell in a puddle of water near the floral department inside a Meijer

store. Id. at ¶ 1. The trial court granted summary judgment to Meijer on the plaintiff’s claim

of negligence. We affirmed the trial court’s decision, stating:

                Brant’s testimony makes clear that she would have been able to

       discover and avoid the puddle if she had exercised ordinary care in watching

       where she was going.         Brant testified that her view of the floor was not

       obstructed. Her testimony that she saw the puddle after her fall establishes

       that it was visible to an ordinary observer looking directly where she was
                                                                                           11


       walking.     By looking   elsewhere, Brant “abandoned the duty imposed to

       look.” Backus v. Giant Eagle (1996), 115 Ohio App.3d 155. Had she not

       done so, she would have seen the puddle.

       {¶ 26}     Subsequent to Brant, this Court decided two similar cases about the open and

obvious doctrine.       In Trimble v. Frisch’s Ohio, Inc., 2d Dist. Clark No. 07CA18,

2007-Ohio-4616, the plaintiff stepped onto the ceramic-tile floor around the breakfast bar of a

restaurant and slipped and fell on water that was standing on the floor. The trial court

granted the defendant’s motion for summary judgment on the plaintiff’s negligence claim.

We reversed, stating:

                [R]easonable minds could reach different conclusions on whether the

       condition and the hazard associated with it that caused Trimble’s fall were

       open and obvious. Therefore, a genuine issue of material fact remains for

       determination, and the trial court erred when it granted Frisch’s motion for

       summary judgment.

But, in Trimble there was a witness’s affidavit that indicated that the water on the floor “was

clear and odorless and was not visible until I knelt down to help Mrs. Trimble.” Id. at ¶ 7.

       {¶ 27}     In Middleton v. Meijer, Inc., 2d Dist. Montgomery No. 23789,

2010-Ohio-3244, the plaintiff walked to the rear of a Meijer store and picked up two gallons

of milk, one in each hand. The plaintiff then walked through the main grocery aisle to look at

sale displays. As he was walking, the plaintiff felt his left foot slide out from beneath him,

causing him to “do the splits and hit his knee on the ground.” When he examined the floor,

which was a light color, the plaintiff discovered that he had slipped on a puddle of clear,
                                                                                            12


liquid laundry detergent. The evidence showed that, “when on the floor, Middleton could see

that the ‘substance had been all tracked through.’” Id. at ¶ 2. There was also evidence that

another store patron saw the substance about ten minutes before the fall and went to inform

store management about the spill. Id. at ¶ 3.



       {¶ 28}    Citing Brant v. Meijer, Inc., the trial court in Middleton granted summary

judgment for the defendant, finding that the clear liquid laundry detergent was an

open-and-obvious condition.     In a divided opinion, with both concurring and dissenting

aspects, this Court reversed, stating: “Although store owners have no duty to protect its

patrons from tracked-in water from snow or rain near the entrance to the stores, they do have a

duty to protect patrons from clear substances on their store floors that are not open and

obvious dangers. We believe a jury could find from the plaintiff’s evidence that the laundry

detergent was not an open and obvious danger to the plaintiff Middleton and that the

defendant had sufficient notice of its presence in order to protect the plaintiff from falling in

it.” Id. at ¶ 17. Thus, the Middleton decision is a mixed analysis of the open-and-obvious

doctrine and of whether a store’s actual notice of a hazard affects the store’s duty to eliminate

it.

       {¶ 29} In the present case, we agree with the trial court that, on this record, there is

no genuine issue of material fact that the hazard was open and obvious.

       {¶ 30}    Plaintiff argues, though, that the open-and-obvious defense should not apply

in this case because there were “attendant circumstances.”            “As a corollary to the

open-and-obvious doctrine, [this Court has] recognized that there may be attendant
                                                                                           13


circumstances [that] divert the individual’s attention from [a] hazard and excuse her failure to

observe it.” Olivier v. Leaf & Vine, 2d Dist. Miami No. 2004 CA 35, 2005-Ohio-1910, ¶ 22.

While there is no precise definition of “attendant circumstances,” it generally refers to “any

distraction that would come to the attention of [the plaintiff] in the same circumstances and

reduce the degree of care an ordinary person would exercise at the time.”            McLain v.

Equitable Life Assur. Co. of the U. S., 1st Dist. Hamilton No. C-950048, 1996 WL 107513, *5

(Mar. 13, 1996), quoting France v. Parliament Park Townhomes, 2d Dist. Montgomery No.

14264, 1994 WL 151658 (Apr. 27, 1994). Attendant circumstances do not, though, include

regularly encountered, ordinary, or common circumstances. Cooper v. Meijer, 10th Dist.

Franklin No. 07AP-201, 2007-Ohio-6086, ¶ 17.

       {¶ 31}    The plaintiff’s testimony is that she was not distracted at all. Accordingly,

there is no factual basis on which to apply the attendant-circumstances exception. Moreover,

she has not cited evidence of any circumstances that were out of the ordinary, uncommon, or

not regularly encountered. We agree with the trial court that “there was nothing which

distracted the plaintiff from seeing the puddles and avoiding them,” (Dkt. 40). There is no

evidence, and therefore no genuine issue of material fact, to support a finding of attendant

circumstances.

       {¶ 32}    We see no reason that, under the circumstances of this case, Home City Ice

cannot also assert the open-and-obvious defense, even though their potential for responsibility

is not derived from a premises-liability theory. Home City Ice concedes in its brief that it

“owns and maintains an ice machine within the Meijer store [that] is located within the

vicinity of Mrs. Colville’s fall.”    (Brief, p.11).   That concession is supported by the
                                                                                           14


deposition testimony of Ian Unger. But Home City Ice was not the owner of the premises,

and although their equipment occupied part of the store, the fall occurred in front of the

machine, not in or under it. Home City Ice’s concession does not display that degree of

control over the premises necessary for it, as an occupier, to have an affirmative duty to

discover and cure a danger that it may have created. If Home City Ice is liable to Colville for

the injuries that proximately resulted from her slip and fall, it is for ordinary negligence – a

breach of a duty of care that Home City Ice owed Colville that proximately resulted in

Colville’s injuries and losses. But the open-and-obvious defense applies in product-liability

cases too, the common law development of which has been codified in R.C. 2307.76(B). The

defense further applies when the theory of liability is the creation of a nuisance. See Moody

v. Coshocton Cty., 9th Dist. Wayne No. 05CA0059, 2006-Ohio-3751. Furthermore, Home

City Ice’s duty, if it has any, would be co-extensive with that of Meijer, the actual owner of

the premises. Accordingly, we believe the open-and-obvious defense applies and the trial

court’s grant of summary judgment to Home City Ice on that basis should be affirmed.

       {¶ 33}    The second assignment of error is overruled.

       {¶ 34}    FIRST ASSIGNMENT OF ERROR

                THE      TRIAL        COURT         ERRED         BY       GRANTING

       DEFENDANT-APPELLEE HOME CITY SUMMARY JUDGMENT BASED

       ON LACK OF CREATION OR KNOWLEDGE OF THE HAZARD.

       {¶ 35}    A second argument raised by Home City Ice, and adopted by the trial court,

is that the plaintiff presented no evidence that it created or was aware of the puddle.

Therefore, Home City Ice argues, summary judgment was proper.
                                                                                           15


       {¶ 36}    Colville testified that she saw bags of ice being delivered to the Meijer store

when she arrived that day. The trial court found: “The Plaintiff’s perception leads to the

inference that Home City delivered the ice on the morning in question.” (Dkt. 43). The

court rejected Colville’s contention that Home City Ice had created the puddles as “simply a

guess.” We agree.

       {¶ 37}    We assume, and the evidence supports, that Home City Ice delivered ice

sometime that morning. But that fact alone, in our view, is insufficient to draw a reasonable

inference that Home City must have therefore breached a duty by creating, or failing to

remove, water on the floor in a public area adjacent to their machine. Undoubtedly, when

considering a motion for summary judgment, the court must construe the evidence and

pleadings “most strongly” in that party’s favor. Civ.R. 56(C). But an inference should not

be drawn on a speculative or remote basis. The plaintiff did not see water coming from the

machine.    (T. 31).   Nor did she know where the water came from.           Id. At best, she

“surmised” that the water came from dripping bags of ice.     We agree with the trial court that

this is “simply a guess.”

       {¶ 38}    Unger’s deposition testimony includes references to a video he viewed prior

to his deposition testimony. The questions posed to him that referred to that video, and

Unger’s responses, suggest that the video depicts Unger delivering ice to the machine at the

Troy Meijer on the day Colville fell. The colloquy further suggests that the video shows that

Unger didn’t clean the floor around the machine. Perhaps if the video itself had been offered

in evidence, we could draw an inference that would preclude summary judgment. But we are

unable to rely on Unger’s testimony about the video. The video is not part of the record.
                                                                                            16


Further, there is no indication from Unger’s testimony what time of day he was recorded

making the delivery or even any positive statement that it was the same day that Colville fell.

       {¶ 39}    As the trial court did, we distinguish Hickman v. Wal-Mart Stores E., Inc.,

4th Dist. Washington No. 07CA41, 2008-Ohio-1221. In Hickman there was evidence that a

display technician had been working in the exact area of the fall. More importantly, there

was testimony from the store manager who said that it was his (lay) opinion that the “clear,

slick substance” on the floor was left by that display technician. Thus, in Hickman the link

between the substance and person responsible for it was the subject of direct testimony rather

than the “surmise” of the plaintiff.

       {¶ 40}    Because the plaintiff here has presented no admissible evidence that

defendant Home City Ice created or was aware of the water, the trial court correctly granted

the motion for summary judgment on that issue.

       {¶ 41}    The first assignment of error is overruled.

       {¶ 42}    The judgment of the trial court is affirmed.

                                       ..............



DONOVAN, J., concurring:

       {¶ 43}    In my view the dissent mischaracterizes the majority opinion by suggesting

that our holding creates “further mischief.” The open and obvious nature of a hazard on any

premises is analyzed by a fact-specific inquiry and must be determined on a case by case

basis. For this reason, previously decided open and obvious cases tend to be of limited value.

 Although the dissent is critical of the Springer and Brant decisions, both cases affirmed a
                                                                                               17


finding by the trial court that the conditions at issue were “readily observable.” Thus, an

objective test was ultimately utilized in both cases, supporting an affirmance of summary

judgment for the defendants.

          {¶ 44}    Furthermore, the dissent unnecessarily urges a motion for enbanc review

when a majority of the current court recently found no conflict in our open and obvious

jurisprudence. Middleton v. Meijer, Inc., 2d Dist. Montgomery No. 23789, 2010-Ohio-3244.

 The dissent does not rely upon any case decided after Middleton to suggest a conflict now

exists.

                                            ..........



GRADY, P.J., dissenting:

          {¶ 45}   The majority perpetuates the erroneous test the Supreme Court expressly

rejected for applying the “open and obvious” doctrine in premises liability cases in Armstrong

v. Best Buy, Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088. The Supreme Court

wrote:

          We continue to adhere to the open-and-obvious doctrine today. In reaching this

          conclusion, we reiterate that when courts apply the rule, they must focus on the

          fact that the doctrine relates to the threshold issue of duty. By focusing on the

          duty prong of negligence, the rule properly considers the nature of the

          dangerous condition itself, as opposed to the nature of the plaintiff's conduct in

          encountering it. The fact that a plaintiff was unreasonable in choosing to

          encounter the danger is not what relieves the property owner of liability.
                                                                                                                                     18


          Rather, it is the fact that the condition itself is so obvious that it absolves the

          property owner from taking any further action to protect the plaintiff. Ferrell,

          Emerging Trends in Premises Liability Law: Ohio's Latest Modification

          Continues to Chip Away at Bedrock Principles (1995), 21 Ohio N.U.L.Rev.

          1121, 1134. Even under the Restatement view, we believe the focus is

          misdirected because it does not acknowledge that the condition itself is

          obviously hazardous and that, as a result, no liability is imposed. (Emphasis

          supplied).

          {¶ 46}        In the present case, the majority relies on two facts to find that the puddle of

water that Plaintiff Colville claims caused her to fall presented an open and obvious hazard.

First, Plaintiff was able to see the puddle after she fell.2 Second, because her attention was

on the door she was approaching, Plaintiff failed to see the puddle of water before she fell.

However, both matters involve Plaintiff’s conduct in encountering the hazardous condition,

which Armstrong expressly rejected as a basis to find the condition was an open and obvious

hazard.

          {¶ 47}        The genesis of the majority’s error appears to be the holding in Springer v.

University of Dayton, 2d Dist. Montgomery No. 21358, 2006-Ohio-3198, in which we wrote

that “the determinative issue is whether the condition is observable. Even in cases in which

the plaintiff did not actually notice the condition until after he or she fell, [courts] have found

no duty to exist in cases where the plaintiff could have seen the condition if he or she had


            2
            The fact that Colville, upon subsequent close examination, was able to see the puddle after she fell is, of course, not determinative
 of whether she should have seen it before she fell, in the exercise of ordinary care.
                                                                                            19


looked.” Id. at ¶ 5.

       {¶ 48}    Whether a condition is “observable” for purposes of the open and obvious

doctrine is not determined by whether a plaintiff could have seen the condition if he or she

had looked. That’s the very subjective test that Armstrong rejected in favor of an objective

test, “the fact that the condition itself is so obvious that it absolves the property owner from

taking any further action to protect the plaintiff.” Armstrong at ¶ 13.

       {¶ 49}    We explained the open and obvious standard in Armstrong in Trimble v.

Frisch’s Ohio, Inc., 2d Dist. Clark No. 07CA0018, 2007-Ohio-4616, writing: “Hazards are

open and obvious when they are inherent in the condition from which they arise and the

condition itself is known to the invitee or by reason of its particular size or configuration the

condition is readily discoverable.” Trimble at ¶ 27.

       {¶ 50}    The objective criteria for open and obvious hazards we explained in Trimble

has been the basis for application of the open and obvious doctrine by the Supreme Court in

multiple cases: Sidle v. Humphrey, 13 Ohio St.3d 45, 233 N.E.2d 589 (1968), and Debie v.

Cochran Pharmacy-Berwick, Inc., 11 Ohio St.2d 38, 277 N.E.2d 603 (1967), natural

accumulations of snow and ice; Armstrong, a metal guardrail fixed to a floor; and, more

recently, Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d

120, steps that failed to conform to a building code. None of those cases applied the

subjective test the majority employs in the present case. Further, in none of these cases was

the open and obvious doctrine applied to a transient condition involving a substance foreign to

its location, such as the puddle of water in the present case.

       {¶ 51}    Plaintiff argues that “attendant circumstances” distracted her attention.
                                                                                              20


Unfortunately, that matter relates to Plaintiff’s conduct in encountering the hazard, which is

the test that Armstrong rejects. To that extent, Plaintiff is the author of the error the majority

commits. But, we should not ourselves create error merely because the error is invited.

         {¶ 52}   The further mischief this holding creates is that it continues a conflict in this

court’s decisions applying the open and obvious doctrine. In Brant v. Meijer, Inc., 2d Dist.

Montgomery No. 21369, 2006-Ohio-6300, we affirmed a summary judgment for a defendant

on a plaintiff’s claim that she slipped and fell on a puddle of water on the floor of a retail

store.   In Middleton v. Meijer, 2d Dist. Montgomery No. 23789, 2010-Ohio-3244, we

reversed a summary judgment for a defendant on a plaintiff’s claim that he slipped and fell on

a puddle of clear detergent on the floor of a retail store. Now, on similar facts, we affirm a

summary judgment for a defendant. Each of those cases involved different collateral facts

which were of nebulous significance. The problem is in our conflicting applications of the

open and obvious doctrine based on the plaintiff’s conduct. I urge Plaintiff in the present

case to seek an en banc review of this decision pursuant to App.R. 26(A)(2).

                                           ..........

Copies mailed to:

Jeffrey G. Chinault, Esq.
Erin B. Moore, Esq.
Jared Wagner
Steven F. Stofel, Esq.
Brian R. McHenry
Hon. Robert J. Lindeman
