[Cite as Stewart v. AMF Bowling Ctrs., Inc., 2010-Ohio-5671.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              HANCOCK COUNTY




RONALD E. STEWART, et al.,

        PLAINTIFFS-APPELLANTS,                                  CASE NO. 5-10-16

        v.

AMF BOWLING CENTER, INC., et al.,                               OPINION

        DEFENDANTS-APPELLEES.




                Appeal from Hancock County Common Pleas Court
                           Trial Court No. 2009CV121

                                     Judgment Affirmed

                          Date of Decision: November 22, 2010




APPEARANCES:

        Bernard K. Bauer for Appellants

        Michael P. Gilbride for Appellee, AMF Bowling Centers, Inc.

        Lance K. Oliver for Appellee, Anthem Blue Cross & Blue Shield
Case No. 5-10-16


ROGERS, J.

       {¶1} Plaintiff-Appellants, Ronald and Mary Stewart, appeal from the

judgment of the Court of Common Pleas of Hancock County granting AMF

Bowling Centers’ motion for summary judgment. On appeal, Ronald and Mary

(the “Stewarts”) argue that the trial court erred in dismissing their claims on

summary judgment on that basis that the injury caused to Ronald was the result of

an open and obvious hazard. Based on the following, we affirm the judgment of

the trial court.

       {¶2} In February 2009, the Stewarts filed a complaint against AMF

Bowling Centers (“AMF”) and Anthem Blue Cross and Blue Shield (“Anthem”)

asserting a claim for damages in excess of $50,000 incurred as a result of injuries

Ronald suffered from a fall allegedly caused by AMF’s negligence in failing to

adequately warn patrons of the hazards of a ramp leading to the bowling lanes

within its establishment. Additionally, the Stewarts’ complaint asserted loss of

consortium damages for Mary and a demand for Anthem to seek reimbursement

for any medical expenses it paid on Ronald’s behalf.

       {¶3} In March 2009, AMF filed its response, denying the allegations set

forth in the Stewarts’ complaint and asserting several affirmative defenses,

including that Ronald’s injuries were the result of intervening and superseding

causes and his comparative negligence.



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       {¶4} In June 2009, Anthem filed its answer, asserting that Ronald was a

covered member of a health care plan it administered; that it had paid at least

$37,376.55 in benefits on his behalf for injuries related to this action; and, that it

had a right of subrogation and reimbursement under Ronald’s health care plan.

       {¶5} In September 2009, Ronald testified via deposition that he had no

prior injuries to his left ankle; that, on February 16, 2007, he arrived at the AMF

Bowling Center around 6:30 p.m. to bowl in the firemen’s tournament; that he was

a retired volunteer firefighter; that he had previously bowled in a league at this

same establishment sometime in the 1990’s; that he bowled in that league for three

years; that the setup of the bowling center had always been such that the lanes

were on a lower level than the rest of the bowling center; that the setup of most

bowling centers has the bowling lanes lower than the rest of the facilities; that,

prior to his bowling in February 2007, he had not bowled for one year; that he had

his own bowling shoes and ball; that he arrived at the bowling center

approximately an hour and a half before his fall occurred; that, while waiting to

bowl, he purchased food from the bowling center and sat down at a table to eat;

that no one else was sitting at the table when he sat down; that, after he finished

eating, his nephew John sat down at the table, and they talked for a few minutes;

that an announcement was made to start bowling, so he stood up from the table,

stepped backwards, and fell into the step-down going to the bowling lanes; that he



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only took one step backwards before he fell; and, that, when he stepped

backwards, his foot went all the way down into the recess.

       {¶6} Ronald continued that he was helped up after the fall; that he was

unable to walk and was carried out of the bowling center; that he did not feel the

pain immediately after the incident, but when he was carried out; that there were

no railings around the step-down areas; that, prior to his fall, he was aware there

was a step-down to the bowling lanes; that at no time before his fall did he walk

down into the bowling lanes; that, since his incident, the bowling center replaced

the ramp that went down to the bowling lanes with a step and added yellow

“strips” along the sides of the step (Ronald Stewart dep., p. 40); and, that, as a

result of his fall, he suffered a fractured ankle that required three surgeries.

       {¶7} In November 2009, AMF filed a motion for summary judgment,

arguing that no genuine issue of material fact existed because the step-down in the

bowling center was an open and obvious hazard of which Ronald was aware and

reasonably should have been aware.

       {¶8} In December 2009, the Stewarts filed a memorandum in opposition

to AMF’s motion for summary judgment, contending that genuine issues of

material fact existed on the question of whether the step-down hazard was open

and obvious, as the carpet created an optical illusion concealing the step-down,




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AMF failed to place any warning strips or railings on the side of the step-down,

and AMF placed a table and chairs next to the step-down.

      {¶9} In March 2010, the trial court granted AMF’s motion for summary

judgment, stating the following in its judgment entry:

      The open and obvious doctrine provides that a premises owner
      owes no duty to persons entering the premises regardless of the
      dangers attended [sic] thereto when those dangers are open and
      obvious. Open and obvious dangers are neither hidden,
      concealed from view nor non-discoverable upon ordinary
      inspection. * * * This test however does not mean that the
      condition has to be observed by the claimant only it [sic] could
      have been reasonably and easily observed. The open and
      obvious doctrine, when applicable, obviates the duty of a
      premises owner to warn all invitees of premises conditions and
      acts as a complete bar to a negligence claim. * * *

      Conversely, the Plaintiff contends that the determination of this
      area as an “open and obvious” condition constitutes a material
      issue of the disputed fact. * * * Plaintiff claims that by choosing
      a pattern identical for the carpet and the step down without
      proper markings created [sic] an optical illusion making it
      impossible for the Plaintiff to determine where to safely travel.

      As found by the Third District Court of Appeals [sic] Mohne vs.
      Wal-mart Stores, Inc. [sic] 2008-Ohio-6184, a condition or
      obstruction that sits low to the ground in an area frequented by
      customers may be an open and obvious [sic] as a matter of law
      so long as it is not concealed. This Court finds no evidence in the
      record to suggest the existence of an attendant circumstance.

      More importantly, the Plaintiff’s own admission during the
      course of his deposition testimony and his actions are dispositive
      of this matter. Specifically, Stewart acknowledged that he was
      aware of the step prior to the time he fell. * * * As the
      Defendant established through the Plaintiff’s deposition
      testimony, the Plaintiff chose to sit at a table near the entrance


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      and then stepped backwards without first looking precipitating
      his fall. His fall was not caused by an “optical illusion” created
      by the pattern of the carpet, but by the Plaintiff’s own
      forgetfulness, inadvertence, or both.

      Based upon a careful review of the evidence and arguments of
      counsel, the Court finds that the bowling alley ramp way, [sic]
      was an open and obvious condition. Consequently, the Court
      finds that there are no disputed issues of material fact and as a
      matter of law the Defendant owed no duty of care to the
      Plaintiff. Therefore, the Court Orders that the claims of both
      Plaintiffs are dismissed.

(Mar. 2010 Decision of Motion for Summary Judgment, pp. 5-6).

      {¶10} It is from the trial court’s grant of summary judgment that the

Stewarts appeal, presenting the following assignment of error for our review.

      THE TRIAL COURT COMMITTED ERROR PREJUDICIAL
      TO THE PLAINTIFFS-APPELLANTS [SIC], BY ENTERING
      A SUMMARY JUDGMENT IN FAVOR OF THE OWNER OF
      A BOWLING ALLEY ON THE BASIS THAT A CONDITION
      WHICH CAUSED INJURY TO A PATRON WAS “OPEN AND
      OBVIOUS,” AS A MATTER OF LAW.

      {¶11} In their sole assignment of error, the Stewarts argue that the trial

court erred in granting summary judgment to AMF. Specifically, they contend

that attendant circumstances existed on the issue of whether the hazard at the

bowling center was open and obvious, such that the issue should not have been

decided as a matter of law. We disagree.

      {¶12} An appellate court reviews a summary judgment order de novo.

Hillyer v. State Farm Mut. Auto. Ins. Co. (1999), 131 Ohio App.3d 172, 175.



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Accordingly, a reviewing court will not reverse an otherwise correct judgment

merely because the lower court utilized different or erroneous reasons as the basis

for its determination. Diamond Wine & Spirits, Inc. v. Dayton Heidelberg Distr.

Co., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶25, citing State ex rel. Cassels v.

Dayton City School Dist. Bd. of Ed., 69 Ohio St.3d 217, 222, 1994-Ohio-92.

Summary judgment is appropriate when, looking at the evidence as a whole: (1)

there is no genuine issue as to any material fact; (2) reasonable minds can come to

but one conclusion and that conclusion is adverse to the party against whom the

motion for summary judgment is made; and, therefore, (3) the moving party is

entitled to judgment as a matter of law. Civ.R. 56(C); Horton v. Harwick

Chemical Corp., 73 Ohio St.3d 679, 686-687, 1995-Ohio-286. If any doubts exist,

the issue must be resolved in favor of the nonmoving party. Murphy v.

Reynoldsburg, 65 Ohio St.3d 356, 358-59, 1992-Ohio-95.

      {¶13} The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of

material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107. In doing

so, the moving party is not required to produce any affirmative evidence, but must

identify those portions of the record which affirmatively support his argument. Id.

at 292. The nonmoving party must then rebut with specific facts showing the




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existence of a genuine triable issue; he may not rest on the mere allegations or

denials of his pleadings. Id.; Civ.R. 56(E).

       {¶14} “[I]n order to establish actionable negligence, one seeking recovery

must show the existence of a duty, the breach of the duty, and injury resulting

proximately therefrom.” Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 285.

At common law, the legal duty owed by a landowner to one who enters upon his

land was contingent upon the status of the entrant: trespasser, licensee, or invitee.

Shump v. First Continental-Robinwood Assoc., 71 Ohio St.3d 414, 417, 1994-

Ohio-427.    ‘“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.’” Neumeier v. Lima, 3d Dist. No. 1-05-23, 2005-Ohio-5376, ¶13,

quoting Light v. Ohio University (1986), 28 Ohio St.3d 66, 68. The duty of care

owed by a landowner to a business invitee is to exercise ordinary care to keep the

premises in a reasonably safe condition so as to not expose the individual to any

unnecessary or unreasonable risks of harm. Paschal v. Rite Aid Pharmacy, Inc.

(1985), 18 Ohio St.3d 203, citing Campbell v. Hughes Provision Co. (1950), 153

Ohio St. 9. However, a landowner does not owe invitees a duty to warn of any

dangers on his property which are open and obvious. Armstrong v. Best Buy Co.,

Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, ¶5. As such, the open and obvious

doctrine “acts as a complete bar to any negligence claims.” Id. The justification



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for the doctrine is that “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.” Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 644,

1992-Ohio-42.

       {¶15} A hazard is open and obvious when in plain view and readily

discoverable upon ordinary inspection. ‘“[E]ven an obstruction that sits low to the

ground in an area frequented by customers may be open and obvious as a matter of

law, so long as it is not concealed.’” Mohn v. Wal-Mart Stores, Inc., 3d Dist. No.

6-08-12, 2008-Ohio-6184, ¶14, quoting Johnson v. Golden Corral, 4th Dist. No.

99CA2643, 2000 WL 1358635. However, attendant circumstances may exist

which distract an individual from exercising the degree of care an ordinary person

would have exercised to avoid the danger, and “may create a genuine issue of

material fact as to whether a hazard is open and obvious.” Aycock v. Sandy Valley

Church of God, 5th Dist. No. AP 09 0054, 2008-Ohio-105, ¶26. An attendant

circumstance has been defined as follows:

       “[A] factor that contributes to the fall and is beyond the control
       of the injured party. * * * The phrase refers to all facts relating
       to the event, such as time, place, surroundings or background
       and the conditions normally existing that would unreasonably
       increase the normal risk of a harmful result of the event. * * *
       However, ‘[b]oth circumstances contributing to and those
       reducing the risk of the defect must be considered.’”



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Williams v. Lowe’s of Bellefontaine, 3d Dist. No. 8-06-25, 2007-Ohio-2045, ¶18,

quoting Benton v. Cracker Barrel Old Country Store, Inc., 10th Dist. No. 02AP-

1211, 2003-Ohio-2890, ¶17, quoting Sack v. Skyline Chili, Inc., 12th Dist. No.

CA2002-09-101, 2003-Ohio-2226, ¶20.             But, attendant circumstances do not

include any circumstance existing at the moment of a fall, unless the individual

was distracted by an unusual circumstance created by the property owner. Id.,

citing McGuire v. Sears, Roebuck & Co. (1996), 118 Ohio App.3d 494, 498.

Additionally, an individual’s failure to avoid a known hazard is not excused

because he ‘“did not think”’ or ‘“forgot.”’ Sneary v. McDonald’s Restaurant No.

3830, 3d Dist. No. 1-2000-13, 2000-Ohio-1885, quoting Raflo v. Losantiville

Country Club (1973), 34 Ohio St.2d 1, 3. Moreover, a step hazard has been found

to be open and obvious even where the colors of the step and the floor are

uniform. See Hill v. W. Res. Catering, 8th Dist. No. 93930, 2010-Ohio-2896, ¶23.

         {¶16} In the case at bar, Ronald stated in his deposition that he was aware

of the step-down to the bowling lanes; that he had previously been on a league at

this bowling center and was aware that its setup had always been such that the

bowling lanes were lower than the rest of the bowling center; that most bowling

centers had lanes lower than the rest of the facilities; and, that, when he arose from

his chair, he stepped backwards into the step-down and fell, suffering a fractured

ankle.



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       {¶17} Based upon Ronald’s testimony, it is clear that this hazard was open

and obvious. Not only had Stewart been a patron of this bowling center in the past

and therefore aware of this step-down to the bowling lanes, he also saw the step-

down on this particular evening. Despite his knowledge of the hazard, he chose to

sit with his back to the step-down and step backwards into it.

       {¶18} Moreover, we also find that no attendant circumstances existed to

distract Ronald from the open and obvious nature of this hazard. First, Ronald

contends that warning strips should have been placed along the step-down or a

carpet pattern chosen that did not conceal the step-down. Nevertheless, any such

actions in this case would not have prevented Ronald’s fall, as he was aware of the

step-down but stepped backwards into it.        Additionally, Ronald asserts that

railings should have been put in place to prevent falls of this nature. However, we

do not find that a landowner’s duty to exercise ordinary care for his patrons

requires such comprehensive and expensive alterations for these types of open,

obvious, and necessary conditions.

       {¶19} Accordingly, we overrule the Stewarts’ assignment of error.

       {¶20} Having found no error prejudicial to the appellants herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                 Judgment Affirmed

WILLAMOWSKI, P.J. and PRESTON, J., concur.
/jlr


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