[Cite as Meloy v. Circle K Store, 2013-Ohio-2837.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


GENEVA MELOY, et al.,                                :   OPINION

                 Plaintiffs-Appellants,              :
                                                         CASE NO. 2012-P-0158
        - vs -                                       :

CIRCLE K STORE, et al.,                              :

                 Defendant-Appellee.                 :


Civil Appeal from the Portage County Court of Common Pleas, Case No. 2011 CV
00305.

Judgment: Reversed and remanded.


George W. Cochran, 2016 Sherwood Avenue, Louisville, KY 40205 (For Plaintiffs-
Appellants).

Vincent J. Lodico and Robert C. Buchbinder, Crabbe, Brown & James, LLP, 500 South
Front Street, Suite 1200, Columbus, OH 43215 (For Defendant-Appellee).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellants, Geneva Meloy, et al., appeal from the judgment of the Portage

County Court of Common Pleas granting appellee, Circle K Store, summary judgment.

At issue is whether there is a genuine issue of material fact on whether the condition

which allegedly caused appellant-Geneva Meloy (“Meloy”) to trip and fall was open and

obvious. For the reasons discussed in this opinion, we reverse the judgment of the trial

court and remand the matter for further proceedings.
       {¶2}   Just before 7 a.m., on August 6, 2010, Meloy stopped into appellee’s store

in Brimfield, Ohio to purchase lottery tickets. After making the purchase, she exited the

store, turned left, and proceeded to walk toward her vehicle. Displays situated outside

the Circle K narrowed the walkway that served as both the ingress and egress to the

store. As Meloy approached a pallet of Morton water-softening salt, she moved toward

the display to accommodate other patrons attempting to enter the store. Meloy felt the

fabric of her pants snag on something and, unable to regain her balance, fell to the

ground, injuring her knees and shoulder. According to Meloy, as she passed the pallet,

her leg became caught on a sign advertising the price of the salt. She further claimed

she did not notice the sign until after she fell due to its location and size.

       {¶3}   With the assistance of two unknown individuals, Meloy returned to her feet

and filed an incident report with Robert Wolfe, the store’s manager. After returning

home, Meloy sought medical treatment, which revealed she suffered a fracture to her

right shoulder and bruises to her knees.

       {¶4}   Appellants filed a complaint against appellee alleging negligence. After

completing discovery, appellee moved for summary judgment.                 Appellants filed a

memorandum in opposition to the motion. On December 7, 2012, the trial court granted

appellee’s motion, ruling appellee owed Meloy no duty of care because the condition at

issue was open and obvious. This appeal follows.

       {¶5}   Appellants assign six errors for this court’s review. Each assigned error

contests the trial court’s entry of summary judgment on their negligence claim.

Summary judgment is a procedural tool that terminates litigation and thus should be

entered with circumspection. Davis v. Loopco Industries, Inc., 66 Ohio St.3d 64, 66




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(1993). Summary judgment is proper where (1) there is no genuine issue of material

fact remaining to be litigated; (2) the movant 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 the evidence in the non-moving party’s favor, that conclusion

favors the movant. See e.g. Civ.R. 56(C).

       {¶6}   When considering a motion for summary judgment, the trial court may not

weigh the evidence or select among reasonable inferences.               Dupler v. Mansfield

Journal Co., 64 Ohio St.2d 116, 121 (1980). Rather, all doubts and questions must be

resolved in the non-moving party’s favor. Murphy v. Reynoldsburg, 65 Ohio St.3d 356,

359 (1992). Hence, a trial court is required to overrule a motion for summary judgment

where conflicting evidence exists and alternative reasonable inferences can be drawn.

Pierson v. Norfork Southern Corp., 11th Dist. No. 2002-A-0061, 2003-Ohio-6682, ¶36.

In short, the central issue on summary judgment is, “whether the evidence presents

sufficient disagreement to require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 251-252 (1986). On appeal, we review a trial court’s entry of summary judgment

de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996).

       {¶7}   For their first assignment of error, appellants allege:

       {¶8}   “The trial court committed prejudicial error in granting defendant’s-

appellee’s, Circle K Store’s[,] motion for summary judgment based upon its

determination that defendant’s-appellee’s evidence on the ‘open and obvious’ defense

was stronger than plaintiffs’-appellants’ evidence.”




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       {¶9}   Initially, we note that appellants’ first assignment of error suggests the trial

court engaged in a weighing exercise in granting appellee summary judgment. A review

of the entry, however, demonstrates the trial court’s conclusion was premised upon its

finding that appellants did not advance sufficient evidence to create an issue for trial on

the issue of duty. The court did not find appellee’s defense “stronger” than appellants’

evidence. Rather, the court determined appellants failed to meet their reciprocal burden

under Civ.R. 56. Given this clarification, we shall proceed to consider the propriety of

the trial court’s conclusion.

       {¶10} In order to set forth a claim for negligence, a plaintiff must prove the

following elements: (1) a duty of care owed by the defendant to the plaintiff, (2) a breach

of that duty, (3) causation, and (4) damages. See e.g. Hudspath v. The Cafaro

Company, 11th Dist. No. 2004-A-0073, 2005-Ohio-6911, ¶9. In this case, Meloy was an

invitee on appellee’s business premises. A business owner owes his or her invitees a

duty of reasonable care in maintaining the business premises in a safe condition.

Estate of Mealy v. Sudheendra, 11th Dist. No. 2003-T-0065, 2004-Ohio-3505, ¶29.

This duty does not extend to dangers or obstructions that are so obvious that the invitee

may reasonably be expected to discover them and protect herself against their potential

danger. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 80, 2003-Ohio-2573.

       {¶11} The open-and-obvious doctrine is premised upon the legal recognition that

one is put on notice of a hazard by virtue of its open and obvious character. Id. Where

the danger is obvious, an owner may reasonably expect that invitees will discover those

hazards and take proper measures to protect themselves. Thus, “[w]hen applicable, the

open and obvious doctrine abrogates the duty to warn and completely precludes




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negligence claims.” Hudspath, supra, citing Hobart v. Newton Falls, 11th Dist. No.

2002-T-0122, 2003-Ohio-5004, ¶10.

       {¶12} The question of whether a danger is open and obvious is an objective one.

Goode v. Mt. Gillion Baptist Church, 8th Dist. No. 87876, 2006-Ohio-6936, ¶25.         The

fact that a plaintiff was unaware of the danger is not dispositive of the issue. Id. Hence,

a court must consider whether, in light of the specific facts and circumstances of the

case, an objective, reasonable person would deem the danger open and obvious. See

Stanfield v. Amvets Post No. 88, 2d Dist. No. 06CA35, 2007-Ohio-1896, ¶12.

       {¶13} Notwithstanding the objective nature of the inquiry, the question of

whether a danger is open and obvious is not always a question that can be decided as

a matter of law simply because it may be visible. Furano v. Sunrise Inn of Warren, Inc.,

11th Dist. No. 2008-T-0132, 2009-Ohio-3150, ¶23, citing Hudspath, supra.            To the

contrary, the “attendant circumstances” of a slip and fall may create a material issue of

fact regarding whether the danger was open and obvious. Id. Attendant circumstances

involve all facts relating to the slip and fall, such as “the condition of the sidewalk as a

whole, the volume of pedestrian traffic, the visibility of the defect, and whether the

accident site was such that one’s attention could easily be diverted.” Armstrong v.

Meade, 6th Dist. No. L-06-1322, 2007-Ohio-2820, ¶14. In effect, therefore, attendant

circumstances include any distraction that might divert an ordinary person’s attention in

the same circumstances and consequently reduce the amount of care a reasonable

person would exercise. Hudspath, supra, at ¶19.

       {¶14} In this case, appellee’s store had multiple window signs and two displays

on the walkway traversed by Meloy when she fell. The first, a five feet tall, four feet long




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display advertising window washing fluid; the second, a water-softening-salt display that

incorporated two adjacent pallets of salt, each of which had a sign advertising the price

of the salt. The signs were one-eighth of an inch thick and flexible such that they could

be bent at their base and slid under the pallets. After the signs were slid under the

pallets, the signs protruded from the displays approximately six inches. Testimony from

appellee’s manager, as well as pictures depicting the displays, demonstrated that the

signs had a tendency to droop both forward toward the walkway and backward onto the

display. Given the size of the pallets, appellee’s manager estimated customers had

approximately three and one-half to four feet of walking space when entering or exiting

the store. It is not clear whether this spatial estimation accounted for the signs’ six-inch

protrusion from the pallets.

       {¶15} Appellant, as she left the store, testified she had to share the walkway with

other customers who were attempting to enter the store, moving in the opposite

direction. Appellant stated she had little room to walk given the placement of the pallets

and the oncoming pedestrians.       As a result, she testified she moved closer to the

display to accommodate the passers-by. Upon doing so, appellant testified she felt a

hard snag on her pant leg; she was unable to regain her balance and fell to the ground.

       {¶16} Appellant testified she believed her pant leg caught one of the protruding

signs because, after the fall, she noticed the sign was pulled from the pallet. Prior to the

fall, however, appellant testified she had not noticed the signs at all. Furthermore, in an

affidavit, appellant made the following averment: “The danger I am complaining about

is not the frontal view of Morton’s signs. Rather, it is the combination of three fatal




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factors: (a) the difficulty of perceiving the signs from the side (b) their tendency to droop

over time and (c) the narrow passageway on the sidewalk.” (Emphasis sic.)

       {¶17} The trial court concluded the protruding signage was an open and obvious

hazard to appellee’s business invitees.      Given the testimony, exhibits, and Meloy’s

affidavit, however, we maintain the attendant circumstances surrounding the trip and fall

are sufficient to create a genuine issue of material fact on the issue of whether the

danger at issue was obvious. The sidewalk was narrowed due to the largeness of the

pallets and Meloy averred she did not notice the signs from the side because they were

only one-eighth of an inch thick and their positioning rendered them not easily

perceivable. Appellant underscored she moved closer to the display as she walked to

make room for customers attempting to enter the store, yet she still was unable to avoid

the danger given the surrounding circumstances.

       {¶18} To conclude that the hazard in this case was open and obvious as a

matter of law, in light of the foregoing facts, would require this court to weigh the

evidence and select among competing, reasonable inferences relating to the character

and magnitude of the distractions as well as the other circumstances surrounding the

incident; such an exercise, which is completely verboten in the context of summary

judgment review, would be tantamount accepting appellee’s interpretation of the nature

of the danger it created and ignoring the mandate to “resolve all doubts in the non-

moving party’s favor.” See e.g. Kalan v. Fox, 187 Ohio App.3d 687, 2010-Ohio-2951,

¶44 (11th Dist.). Although appellee urges us to affirm the trial court’s decision, its

arguments do not diminish the contrary evidence to the point that “it is so one-sided that

[appellee] must prevail as a matter of law.” Anderson, supra, at 251-252; see also




                                             7
Pierson, supra. We therefore hold the conflicting evidence and the inferences that can

be drawn therefrom create a genuine issue of material fact that cannot be resolved

through summary judgment.

      {¶19} We acknowledge that appellant may have been able to protect herself

from the danger had she been looking at the ground prior to approaching the pallet.

This court has emphasized, however, that the law does not impose an obligation on an

individual to constantly look down while walking.       Hudspath, supra, at ¶22, citing

Grossnickle v. Germantown, 3 Ohio St.2d 96 (1965) paragraph two of the syllabus.

This is especially so where an individual is justifiably focused on avoiding a potential

collision with other individuals who may not be paying attention to her.

      {¶20} Viewing the facts most strongly in appellant’s favor, we hold the trial court

erred in finding the dangerous condition was open and obvious as a matter of law. The

attendant circumstances demonstrate that an invitee attempting to negotiate a narrow

walkway while attempting to avoid other invitees entering the store would not

necessarily discover the protruding signs given the way in which they were situated.

We therefore conclude there is a genuine issue of material fact as to whether, in light of

the specific circumstances of this case, the danger at issue was open and obvious.

      {¶21} Appellants’ first assignment of error is sustained.

      {¶22} Appellants’ remaining assignments of error provide:

      {¶23} “[2.] The trial court committed prejudicial error in granting defendant’s-

appellee’s, Circle K Store’s, motion for summary judgment based upon its opinion that

plaintiffs-appellants had not generated sufficient evidence to ‘rebut’ defendant’s-

appellee’s assertions.




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        {¶24} “[3.] The trial court committed prejudicial error in granting defendant’s –

appellee’s Circle K Store’s, motion for summary judgment based upon its opinion that

defendant-appellee owed no duty to plaintiffs-appellants because the danger was ‘open

and obvious’ as a matter of law.

        {¶25} “[4.] The trial court committed prejudicial error in granting defendant’s-

appellee’s Circle K Store’s, motion for summary judgment based upon its determination

that defendant-appellee owed no duty of care to plaintiffs- because the factual evidence

regarding the nature of the danger favored defendant-appellee.

        {¶26} “[5.] The trial court committed prejudicial error in granting defendant’s-

appellee’s Circle K Store’s, motion for summary judgment based upon its determination

that defendant-appellee satisfied the ‘open and obvious’ defense without consideration

of the attendant circumstances surrounding plaintiff’s-appellant’s injury.

        {¶27} “[6.] The trial court committed prejudicial error in granting defendant’s-

appellee’s, Circle K Store’s, motion for summary judgment based on the ‘open and

obvious’ doctrine without considering whether the sidewalk was the only means of

egress to the store.”

        {¶28} Each of appellants’ remaining five assignments of error raise issues that

are either duplicative of the arguments asserted under their first assigned error or assert

abstract challenges that need not be addressed due to our disposition of that assigned

error. We therefore overrule each of appellants’ remaining assignments of error as

moot.




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      {¶29} For the reasons discussed in this opinion, the judgment of the Portage

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

proceedings.



COLLEEN MARY O’TOOLE, concurs,

TIMOTHY P. CANNON, P.J., dissents with Dissenting Opinion.

                                   _______________


TIMOTHY P. CANNON, P.J., dissenting.


      {¶30} Because I would affirm the trial court’s ruling that the danger at issue was

open and obvious as a matter of law, I respectfully dissent.

      {¶31} Open and obvious dangers are neither hidden nor concealed from view.

Bond v. Mathias, 11th Dist. No. 94-T-5081, 1995 Ohio App. LEXIS 979, *10 (Mar. 17,

1995); see also Haymond v. B.P. Am., 8th Dist. No. 86733, 2006-Ohio-2732, ¶16. The

determination of the openness and obviousness of a danger requires a review of the

facts and circumstances of the particular case. Id. Consequently, the benchmark for

the courts is not whether the person saw the object or danger, but whether the object or

danger was observable. Kirksey v. Summity Cty. Parking Deck, 9th Dist. No. 22755,

2005-Ohio-6742, ¶11.     As the majority observes, however, attendant circumstances

may create a material issue of fact as to whether the open and obvious doctrine applies.

      {¶32} While, as the majority notes, attendant circumstances embrace all

distracting aspects of a slip and fall to overcome the obviousness of a hazard, it stands

to reason that the circumstances must be sufficiently significant such that a reasonable




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person would be unable to acknowledge and appreciate the obvious danger about

which a business owner would otherwise have no duty to warn. As such, the Tenth

Appellate District has commented that “attendant circumstances must be ‘so abnormal

that it unreasonably increased the normal risk of a harmful result or reduced the degree

of care an ordinary person would exercise.’” Mayle v. Dept. of Rehab. & Corr., 10th

Dist. No. 09AP-541, 2010-Ohio-2774, ¶20, quoting Cummin v. Image Mart Inc., 10th

Dist. No. 03AP-1284, 2004-Ohio-2840, ¶10.

        {¶33} In this case, the sign at issue was attached to a large pallet of salt.

Appellant admitted she passed the pallets, apparently without incident, when she was

entering the store. She stated, however, she did not notice the displays or the signs

when she entered because she was not “paying attention.” Upon exiting, she asserted

she tripped because she moved toward the display to avoid other business invitees

entering the store.

        {¶34} A review of the exhibits demonstrates the signs and pallets were

objectively observable. Appellant is not even sure what she tripped over; however, she

thinks it must have been the cardboard sign protruding from the salt bag display.

Contrary to appellant’s protestations, the cardboard sign is anything but invisible. The

one-eighth of an inch measurement to which she refers is only accurate under one

circumstance: if the sign was hanging straight up and down, and one was approaching

on a direct line from the side. There is no evidence that this circumstance was the

case.    In fact, appellant argues the sign was dangerous because it was probably

drooped over. However, this fact certainly does not help appellant’s argument; quite the




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opposite is true. If the sign was drooped over, it would have been hovering above the

ground—clearly observable.

          {¶35} Moreover, oncoming pedestrian traffic at a convenience store cannot be

considered “so abnormal” or significant a circumstance that the risk of harm was

unreasonably increased by the nature and situation of the readily observable display.

Consequently, I would hold that appellant failed to establish any “attendant

circumstances,” and the danger at issue was open and obvious as a matter of law

therefore rendering any duty to warn unnecessary. While the law is clear that one does

not have to constantly look down while walking, it does require one to pay attention to

where one is going. If appellant had been paying attention, there would have been no

injury.




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