         [Cite as Ligon v. Winton Woods Park, 2019-Ohio-1217.]

                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO




SUSAN LIGON,                                     :         APPEAL NO. C-180073
                                                           TRIAL NO. A-1505332
        Plaintiff-Appellant,                     :
                                                                 O P I N I O N.
  vs.                                            :

WINTON WOODS PARK,                               :

GREAT PARKS OF HAMILTON                          :
COUNTY,
                                                 :
  and
                                                 :
BOARD OF PARK COMMISSIONERS
OF HAMILTON COUNTY, OHIO,                        :

    Defendants-Appellees.                        :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: April 3, 2019



Robbins, Kelly, Patterson & Tucker, Jarrod M. Mohler and Sean P. Mahaffey, for
Plaintiff-Appellant,

Schroeder, Maundrell, Barbiere & Powers, Lawrence E. Barbiere and Kurt M. Irey,
for Defendants-Appellees.
                      OHIO FIRST DISTRICT COURT OF APPEALS




MYERS, Presiding Judge.

        {¶1}   Plaintiff-appellant Susan Ligon has appealed from the trial court’s

entry granting summary judgment to defendants-appellees Winton Woods Park,

Great Parks of Hamilton County, and the Board of Park Commissioners of Hamilton

County (collectively referred to as “Great Parks”), on Ligon’s complaint for

negligence.

        {¶2}   In a single assignment of error, Ligon argues that the trial court’s grant

of summary judgment was in error. We find her argument to be without merit and

affirm the trial court’s judgment.

                         Factual and Procedural Background


        {¶3}   Ligon was visiting her adult son, Stephen Ligon, at Winton Woods

Park. Stephen was on a camping trip in the park. Ligon drove from Stephen’s

campsite to the park’s laundry facility. She suffered injury when she tripped and fell

over a mat while walking on the sidewalk that led from the parking lot to the laundry

facility.

        {¶4}    Ligon sued Great Parks for negligence. Her complaint included the

following allegations: that Great Parks had a duty to keep the sidewalk in repair and

free of nuisance; that Great Parks had negligently failed to maintain the sidewalk and

improperly placed the mat on the sidewalk; that Great Parks knew or should have

known that placing the mat on the sidewalk was unsafe and that injuries were likely;

that her fall was a direct result of the negligent failure of Great Parks to maintain the

park and keep it reasonably safe and free from physical defects; that her fall was a




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                     OHIO FIRST DISTRICT COURT OF APPEALS



reasonably foreseeable consequence of Great Parks’ negligence; and that she suffered

serious injuries and incurred medical expenses and economic damages.

       {¶5}   Great Parks moved for summary judgment. The trial court granted

Great Parks’ motion after determining that the mat posed an open and obvious

danger, thus negating any duty owed by Great Parks to Ligon.

                                 Standard of Review


       {¶6}   We review a trial court’s grant of summary judgment de novo. Grafton

v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary

judgment is appropriately granted when there exists no genuine issue of material

fact, the party moving for summary judgment is entitled to judgment as a matter of

law, and the evidence, when viewed in favor of the nonmoving party, permits only

one reasonable conclusion that is adverse to that party. State ex rel. Howard v.

Ferreri, 70 Ohio St.3d 587, 589, 639 N.E.2d 1189 (1994).

                                 Open and Obvious


       {¶7}   In a single assignment of error, Ligon argues that the trial court erred

by granting Great Parks’ motion for summary judgment. She contends that it was

error to find that the mat posed an open and obvious danger.

       {¶8}   To succeed on a negligence claim, a plaintiff must establish that “(1)

the defendant owed a duty of care to the plaintiff; (2) the defendant breached

that duty; and (3) the plaintiff suffered injury proximately caused by the

defendant’s breach of duty.” Patterson v. Adleta, Inc., 1st Dist. Hamilton Nos. C-

180015 and C-180026, 2018-Ohio-3896, ¶ 7, citing Menifee v. Ohio Welding Prods.,

Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984).




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶9}   But “[w]here a danger is open and obvious, a landowner owes no duty

of care to individuals lawfully on the premises.” Lang v. Holly Hill Motel, Inc., 122

Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d 120, ¶ 11, quoting Armstrong v. Best

Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, syllabus. This is

because the open and obvious nature of the condition serves as a warning. Martin v.

Christ Hosp., 1st Dist. Hamilton No. C-060639, 2007-Ohio-2795, ¶ 13. An open and

obvious danger is one that is not “hidden, concealed from view, or undiscoverable

upon ordinary inspection.” Esterman v. Speedway LLC, 1st Dist. Hamilton No. C-

140287, 2015-Ohio-659, ¶ 7, quoting Thompson v. Ohio State Univ. Physicians,

Inc., 10th Dist. Franklin No. 10AP-612, 2011-Ohio-2270, ¶ 12.         It is reasonably

expected that a person will discover such dangers and protect against them. Id. at ¶

6. A court uses an objective standard to determine whether a danger is open and

obvious, and “[t]he fact that a particular appellant himself or herself is not aware of

the hazard is not dispositive of the issue.” Williams v. Strand Theatre & Cultural

Arts Assn., Inc., 5th Dist. Delaware No. 18 CAE 06 0042, 2019-Ohio-95, ¶ 24.

       {¶10} Typically, whether a danger is open and obvious is a question of law.

McLaughlin v. Andy’s Coin Laundries, LLC, 2018-Ohio-1798, 112 N.E.3d 57, ¶ 15 (1st

Dist.). But the presence of attendant circumstances can create an issue of fact as to

whether a danger is open and obvious.             Id.   Attendant circumstances are

“distractions that contribute to an injury by diverting the attention of the injured

party and reduce the degree of care an ordinary person would exercise at the time.”

Id., quoting Galinari v. Koop, 12th Dist. Clermont No. CA2006-10-086, 2007-Ohio-

4540, ¶ 21.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶11} In a deposition, Ligon testified that she had driven from her son’s

campsite to the parking lot of the laundry facility. As she walked along the sidewalk

leading to the facility entrance, she tripped on a mat that was lying on the sidewalk.

She had first noticed the mat when she exited from her vehicle, but from that

distance she had not noticed that any part of the mat was raised. Ligon described the

mat as being black and approximately five feet wide. As she had approached the

mat, Ligon had been looking at the trees and her surroundings, but she explained

that at the moment she fell, she “was looking at the mat stepping on it when I came

right up on it.”

       {¶12} She testified that she first stepped onto the mat as she turned a corner

on the sidewalk, intending to walk on the mat to get to the laundry room door. Ligon

stepped onto the mat with her right foot without incident. But when she stepped

with her left foot she “felt something, [her] foot was right underneath the mat.” In

more detail, she explained that “I remember looking down at the mat but then when

my left foot—as I was going around the corner and then my left foot just went

underneath the mat and as soon as I felt it—when I stepped down I felt it, my left

foot felt something with it, and seen it was underneath the mat.” Ligon believed that

her left foot had gotten caught in flaps that were sticking up on the mat. She testified

that she had not seen the flaps as she approached. She described the flaps as

forming a “tepee” or hump in the mat, which her foot slid underneath. She further

testified that what she described as a large garbage can or ashtray blocked her view of

the hump in the mat. Using a photograph of the scene that depicted the garbage can

or ashtray, she drew an outline of the mat and the location of the hump.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶13} In determining that the mat posed an open and obvious danger, the

trial court made the following statement: “Plaintiff visited the laundry facility at the

Winton Woods campground. Upon exiting her vehicle she noticed a black mat lying

on the concrete sidewalk. Plaintiff continued into the laundry facility. Upon exiting,

while carrying a small bag of laundry, Plaintiff stepped onto the black mat.” It

further found that Ligon “noticed that black mat before entering the laundry facility,

and once again after exiting.” The court then held that a person exercising ordinary

care would have observed any danger the mat presented.

       {¶14} The trial court incorrectly also found that Ligon had twice encountered

the black mat upon which she tripped. The record clearly indicates that Ligon

tripped on the mat the first time she encountered it. But despite the trial court’s

reliance on this inaccurate fact when reaching its conclusion, we nonetheless find

that it did not err in determining that any danger posed by the mat was open and

obvious.

       {¶15} The mat was relatively large and its black color distinguished it from

the sidewalk on which it lay. Ligon noticed the mat as she approached and as she

stepped on it. And even if Ligon had not observed the hump, we find, based on

Ligon’s own sketch and testimony, that it would have been visible to a reasonable

person and that the garbage can or ashtray did not rise to the level of an attendant

circumstance sufficient to create an issue of fact. See Esterman, 1st Dist. Hamilton

No. C-140287, 2015-Ohio-659, at ¶ 13. We hold that the mat posed an open and

obvious danger and, consequently, that Great Parks owed Ligon no duty to warn.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶16} Because the mat posed an open and obvious danger, the trial court did

not err in granting summary judgment to Great Parks. Ligon’s assignment of error is

overruled, and the judgment of the trial court is affirmed.

                                                                      Judgment affirmed.



CROUSE and WINKLER, JJ., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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