[Cite as Lowe v. Local Union No. 14 U.A.W., 2020-Ohio-703.]




                           IN THE COURT OF APPEALS OF OHIO
                               SIXTH APPELLATE DISTRICT
                                    LUCAS COUNTY


Patricia Lowe, et al.                                    Court of Appeals No. L-19-1042

        Appellants                                       Trial Court No. CI201703709

v.

Local Union No. 14 U.A.W., et al.                        DECISION AND JUDGMENT

        Appellees                                        Decided: February 28, 2020

                                                *****

        Pamela A. Borgess, for appellants.

        Robert J. Bahret and Andrew J. Ayers, for appellee Local Union
        No. 14 UAW.

        Julia R. Bates, Lucas County Prosecuting Attorney, Kevin A. Pituch
        and Elaine B. Szuch, Assistant Prosecuting Attorneys, for appellee.

                                                *****

        ZMUDA, P.J.

                                           I. Introduction

        {¶ 1} In this appeal, appellants, Patricia and Gene Lowe, appeal the judgment of

the Lucas County Court of Common Pleas, granting summary judgment in this premises

liability action in favor of appellees, Local Union No. 14 U.A.W. (the “union”) and
Lucas County Board of Elections (the “BOE”). Because we find that the trial court

properly concluded that appellants’ claim was precluded under the open-and-obvious

doctrine, we affirm.

                          A. Facts and Procedural Background

       {¶ 2} On August 11, 2017, appellants filed a complaint with the trial court, in

which they alleged that Patricia sustained two fractured wrists that required surgical

repair and rehabilitative therapy as a result of a fall that occurred as she was entering her

polling place on November 3, 2015. According to the complaint, the fall occurred at the

union’s hall, located at 5413 Jackman Road, Toledo, Lucas County, Ohio, which was

utilized as a polling place by the BOE under a contract with the union.

       {¶ 3} Regarding the cause of Patricia’s fall, appellants alleged:

              As [Patricia] was entering and before she could even realize, the top

       of her shoe got caught underneath the entry floor mat that had been placed

       over the top/edge of the inclining ramp located immediately upon entry

       behind the entry doors, causing her to fall.

       {¶ 4} In their complaint, appellants asserted a claim for negligence based upon the

allegation that appellees failed to maintain the premises in a reasonably safe condition

and breached their duty to Patricia as a business invitee. Appellants alleged that the

hazardous placement of the floor mat behind a closed entry door was not discernible by

Patricia in her exercise of ordinary care. Moreover, appellants claimed that appellees’

placement of the mat was either negligent or willful, wanton, and reckless.




2.
       {¶ 5} On August 24, 2017, the union filed its answer to appellants’ complaint, in

which it denied any liability with respect to Patricia’s fall. Likewise, the BOE denied any

wrongdoing in its answer, which was filed on September 7, 2017. In its answer, the BOE

asserted several affirmative defenses, including sovereign and statutory immunity.

       {¶ 6} The matter proceeded through pretrial discovery, during which deposition

testimony was elicited from several witnesses, including appellants. The depositions

were filed with the trial court and are part of the record on appeal.

       {¶ 7} On July 13, 2018, the BOE filed a motion for summary judgment, in which

it argued that it was statutorily immune from suit as to appellants’ negligence claims.

Alternatively, the BOE asserted that it was not negligent, and any dangerous condition

that existed in this case was open and obvious.

       {¶ 8} One week later, on July 20, 2018, the union filed its motion for summary

judgment, in which it contended that it owed Patricia a duty merely to refrain from

willfully or wantonly causing her injury because she was a licensee, not a business

invitee. Claiming that the record contained no evidence of such willful or wanton

conduct, the union insisted that it was entitled to summary judgment. The union went on

to argue that it was entitled to summary judgment even if Patricia was considered a

business invitee. The union insisted that it had no duty to warn Patricia of any danger

associated with the floor mat that appellants alleged was the cause of Patricia’s fall, as the

mat was an open and obvious condition.




3.
       {¶ 9} On July 25, 2018, appellants filed their motion for partial summary

judgment, in which they argued that Patricia was a business invitee to whom appellees

owed a duty of care, the incline of the entryway and the placement of the floor mat did

not conform to certain building codes and laws regulating polling places, and the

nonconforming floor mat and incline were the cause of Patricia’s fall. As such,

appellants asserted that they were entitled to summary judgment on the issues of liability

and causation, leaving only the issue of damages remaining.

       {¶ 10} On February 21, 2019, the trial court issued its decision on the parties’

competing motions for summary judgment. In its decision, the trial court found, among

other things, that the floor mat on which Patricia allegedly tripped was an open and

obvious condition. Based upon that finding, the trial court concluded that appellees had

no duty to alert Patricia to the floor mat, and thus appellants’ premises liability claims

were not sustainable. Consequently, the trial court granted appellees’ motions for

summary judgment, and denied appellants’ motion for partial summary judgment.

Thereafter, appellants filed their timely notice of appeal.

                                 B. Assignments of Error

       {¶ 11} On appeal, appellants present the following assignments of error for our

review:

              I. The trial court erred in granting summary judgment to

       defendants/appellees where, at a minimum, questions of material fact exist




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      as to causation & whether the hazardous & non-compliant polling place

      entry was open & obvious to voter Lowe.

             II. The trial court erred in denying appellants’ motion for partial

      summary judgment on liability and causation.

      {¶ 12} Because appellants’ assignments of error are interrelated, we will address

them simultaneously.

                                       II. Analysis

      {¶ 13} In their assignments of error, appellants argue that the trial court erred in

granting summary judgment in favor of appellees on their premises liability claim.

      {¶ 14} A motion for summary judgment is reviewed de novo by an appellate court.

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

de novo standard, we undertake our own independent examination of the record and

make our own decision as to whether the moving party is entitled to summary judgment.

Dupler v. Mansfield Journal, 64 Ohio St.2d 116, 119-120, 413 N.E.2d 1187 (1980).

      {¶ 15} Summary judgment is appropriate when (1) no genuine issue as to any

material fact exists, (2) the party moving for summary judgment is entitled to judgment

as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving

party, reasonable minds can reach only one conclusion, and that is adverse to the

nonmoving party. Civ.R. 56; Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64,

66, 375 N.E.2d 46 (1978).




5.
       {¶ 16} Premises liability is a form of negligence, which generally requires the

plaintiff to demonstrate that the defendant owes a duty to him or her the breach of which

proximately resulted in the plaintiff’s injury. Mussivand v. David, 45 Ohio St.3d 314,

318, 544 N.E.2d 265 (1989). The duty that an owner or occupier of premises owes to one

who is injured on those premises is governed by the relationship between the parties.

Light v. Ohio University, 28 Ohio St.3d 66, 67, 502 N.E.2d 611 (1986). “That

relationship will fall into one of three categories: invitee, licensee, or trespasser.” Turner

v. Cathedral Ministries, 2015-Ohio-633, 27 N.E.3d 586, ¶ 10 (6th Dist.), citing Mostyn v.

CKE Restaurants, Inc., 6th Dist. Williams No. WM-08-018, 2009-Ohio-2934, ¶ 13.

       {¶ 17} A business invitee is a person who comes onto premises by invitation,

express or implied, for purposes beneficial to the owner or occupier. Light at 68.

“Conversely, a person who enters the premises of another by permission or acquiescence,

for his own pleasure or benefit, and not by invitation, is a licensee.” Id.

       {¶ 18} In the proceedings below, the trial court did not resolve whether Patricia

was a business invitee or a licensee. Rather, the trial court rendered its decision based on

its analysis of the open-and-obvious doctrine. Here, the parties disagree as to whether

Patricia was a business invitee or a licensee at the time of her fall. Appellants argue that

Patricia was a business invitee because the union received monetary compensation from

the BOE for its use of the union hall as a polling place. In response, appellees insist that

the compensation paid to the union was insufficient to cover the union’s costs of

operation. As such, appellees contend that Patricia’s use of the union’s hall was not




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beneficial to the union and therefore Patricia was a licensee. In light of our determination

below that appellants’ premises liability claims were properly dismissed under the open-

and-obvious doctrine, which applies regardless of the status of the entrant, we need not

resolve the issue of whether Patricia was a business invitee or a licensee.

       {¶ 19} Here, the trial court found that appellees owed no duty to Patricia with

respect to the entryway incline or the floor mat, because such conditions were open and

obvious. The open-and-obvious doctrine provides that owners do not owe a duty to

persons entering their premises regarding dangers that are open and obvious. Armstrong

v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 14, citing

Sidle at paragraph one of the syllabus. The rationale underlying this 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, 597 N.E.2d 504 (1992).

       {¶ 20} In their brief to this court, appellants argue that the open-and-obvious

doctrine does not apply in this case because “the impermissible incline was not ramped,

marked, painted, highlighted or signaled in any fashion.” Further, appellants contend that

no warnings were provided as to the incline, and the design of the parking lot resulted in

entrants proceeding to the entryway at an “oblique angle” without a direct line of sight to

the doors. In addition, appellants argue that the slope of the floor was not open and




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obvious because it was concealed by the floor mat on which Patricia tripped as she

entered.

       {¶ 21} In response, appellees rely upon Patricia’s deposition testimony in support

of their argument that appellants’ premises liability claims were not sustainable because

the floor mat and the slope of the floor were open and obvious. We agree.

       {¶ 22} In her deposition, which was made a part of the trial record and relied upon

by appellees to support their motion for summary judgment, Patricia testified that she had

voted without incident at the union’s hall on four separate occasions, all of which

involved her entering the hall using the same doorway at which she fell in November

2015. Patricia indicated that she encountered no issues on these occasions, and

acknowledged that she had not previously tripped or fallen at the entryway.

       {¶ 23} Later in her deposition, Patricia was asked about what caused her to trip, to

which she responded, “[w]ell, my husband opened up the door and as I was walking in on

my third step in I stepped on the threshold and as I picked up my right foot something

heavy was on my foot and before I knew it I put my arms out and I fell.” Patricia was

subsequently asked if it was the floor mat that caused her to fall. She responded in the

affirmative, and went on to deny three separate times that the floor itself or the contour of

the floor caused her fall. Notably, the following exchange took place thereafter:

              Q. And theoretically if you, if you were standing at the threshold or

       even just outside the door, had you looked there’s no reason you would

       have been unable to see that carpet or the fact that it was curled up?




8.
              A. Could you repeat it, please?

              Q. Sure. If you had stopped or slowed down before you go over the

       threshold, had you looked down you would have been able to see the carpet

       and the fact that it was curled up?

              A. Yes, I probably would have, yes.

       {¶ 24} In an errata sheet attached to her deposition,1 Patricia sought to clarify the

foregoing testimony on the issue of what caused her to fall by indicating that “it wasn’t

the floor that got caught on the top of my shoe tripping me, but the mat was over an

incline in the floor. If the mat wasn’t over the incline or if there wasn’t an incline, I don’t

believe my foot would have got caught under the rug and I don’t believe I would have

fallen.”

       {¶ 25} In addition to Patricia’s deposition testimony, the record contains a number

of other deposition transcripts, as well as pictures of the entryway that is at issue in this

case. In a deposition given by another eyewitness to the fall, Loretta Deal, Deal

responded in the negative when she was asked whether the slope in the floor contributed

to Patricia’s fall. Moreover, Gene testified in his deposition that he held the door open

for Patricia as she attempted to make her way through the entryway. Thus, there is


1
  Appellees filed motions to strike appellants’ errata sheet on the theory that it did not
comply with Civ.R. 30(E). The trial court did not rule on appellees’ motion. Rather, the
trial court noted its consideration of the material contained in the errata in its decision on
the parties’ competing motions for summary judgment, but stated that the errata sheet did
not alter the outcome of its analysis. Likewise, we find that the errata does not alter the
outcome of this case, and we therefore need not pass upon its admissibility.




9.
nothing in the record to suggest that Patricia’s view of the entryway was obstructed in

any way at the time of the fall.

       {¶ 26} The foregoing evidence, when taken together with the photographs of the

entryway at issue here that are contained in the record, indisputably establishes the open

and obvious nature of the incline in the floor, as well as the placement and condition of

the floor mat. Patricia entered into the hall with nothing obstructing her view, and she

acknowledges that she would have seen the allegedly hazardous entryway had she looked

down. In such circumstances, we have held that no genuine issues of material fact exist

that would preclude summary judgment in favor of the landowner under the open-and-

obvious doctrine. See Mostyn v. CKE Restaurants, Inc., 6th Dist. Williams No.

WM-08-018, 2009-Ohio-2934, ¶ 21 (“Appellants, without any visual or lighting

obstruction of any kind, traveled through a transparent glass entry area containing a floor

mat of a color divergent from the tile beneath it. Even assuming arguendo that appellants

were invitees, the record clearly demonstrates that the condition was open and obvious so

as to negate any duty on the part of appellee.”); see also Armstrong, supra, 99 Ohio St.3d

79, 2003-Ohio-2573, 788 N.E.2d 1088, at ¶ 16 (“Armstrong admitted in his deposition

that when he entered the store, nothing was obstructing his view prior to his fall and that,

had he been looking down, he would have seen the guardrail. Armstrong further stated

that he had visited the store two or three times before his mishap. * * * [I]n viewing the

photographs supplied by both parties, we find that as a matter of law, the rail in question

was visible to all persons entering and exiting the store. Thus, the rail presented an




10.
open-and-obvious danger. As a result, since the hazard was open and obvious, Best Buy

owed no duty to Armstrong. No genuine issue of material fact remains.”).

       {¶ 27} Nonetheless, appellants argue in the alternative that the open-and-obvious

doctrine does not apply in this case because (1) the floor’s incline did not conform to

safety requirements under the building code and the Ohio Revised Code, (2) the

hazardous conditions that led to Patricia’s fall were caused by the active negligence of the

union in placing the unsecured floor mat over the inclined portion of the floor, and

(3) there are attendant circumstances that diverted Patricia’s attention away from the

hazardous floor mat and sloped floor. We will address these arguments in turn.

                                  A. Negligence Per Se

       {¶ 28} “While the open-and-obvious doctrine excuses a breach of a defendant’s

duty of care, it does not override statutory duties.” Asher v. Glenway Real Estate, LLC,

2019-Ohio-4851, --- N.E.3d ----, ¶ 25 (1st Dist.), citing Lattimore v. K & A Mkt., Inc., 1st

Dist. Hamilton No. C-150753, 2016-Ohio-5295, ¶ 9. In Lang v. Holly Hill Motel, Inc.,

122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d 120, the Supreme Court of Ohio stated

the open-and-obvious doctrine does not shield a defendant from liability where the

plaintiff has proven negligence per se based upon the violation of a statute. Id. at ¶ 15,

citing Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, 857 N.E.2d 1195, ¶ 25,

and Chambers v. St. Mary’s School, 82 Ohio St.3d 563, 567-568, 697 N.E.2d 198 (1998).

       {¶ 29} “The concept of negligence per se allows the plaintiff to prove the first two

prongs of the negligence test, duty and breach of duty, by merely showing that the




11.
defendant committed or omitted a specific act prohibited or required by statute; no other

facts are relevant.” Id., citing Chambers at 565-566. For a violation of a statute to

constitute negligence per se, the statute must “set forth a positive and definite standard of

care.” Mann v. Northgate Investors, L.L.C., 138 Ohio St.3d 175, 2014-Ohio-455, 5

N.E.3d 594, ¶ 29. Where a statute only sets forth a “general, abstract description of a

duty,” a violation of that statute constitutes evidence of negligence, but does not rise to

the level of negligence per se. Id. Moreover, “[t]he violation of an administrative rule

does not constitute negligence per se.” Chambers at the syllabus.

       {¶ 30} In support of their contention that the sloped floor constituted negligence

per se for which appellees should be held liable, appellants refer to R.C. 3501.29(B)(1)(a)

and (c), the Voting Accessibility for the Elderly and Handicapped Act, 52 U.S.C. 20102

and 20107, the Americans with Disabilities Act (“ADA”), the Ohio Basic Building Code,

and regulations involving polling places promulgated by the Ohio Secretary of State.

       {¶ 31} R.C. 3501.29(B)(1) provides, in relevant part:

              (B)(1) Except as otherwise provided in this section, the board shall

       ensure all of the following:

              (a) That polling places are free of barriers that would impede ingress

       and egress of handicapped persons;

              ***




12.
                 (c) That the entrances of polling places are level or are provided with

         a nonskid ramp that meets the requirements of the “Americans with

         Disabilities Act of 1990,” 104 Stat. 327, 42 U.S.C. 12101.

         {¶ 32} It is clear from a review of this statute that it is directed at ensuring polling

place access for persons who are handicapped. “It is well-settled law in Ohio that for a

violation of a statute to constitute negligence per se, the injured person must be a part of

the class the statute was designed to protect.” Community Ins. Co. v. Hambden Twp.,

11th Dist. Lake No. 97-G-2092, 1998 WL 682385, *6 (Sept. 30, 1998), citing Marsh v.

Koons, 78 Ohio St. 68, 84 N.E. 599 (1908), paragraph one of the syllabus; see also Lajoie

v. Maumee River Yacht Club, 6th Dist. Lucas No. L-89-014, 1990 WL 7976, *2 (Feb. 2,

1990). There is no evidence in the record to demonstrate that Patricia was handicapped at

the time of her fall. Therefore, appellants are not entitled to rely upon the alleged

violation of R.C. 3501.29(B)(1) to establish negligence per se in this case.

         {¶ 33} Under 52 U.S.C. 20102, polling places are required to be “accessible to

handicapped and elderly voters.” An “elderly” person is defined as one who is 65 years

of age or older,2 and “accessible” means “accessible to handicapped and elderly

individuals for the purpose of voting or registration, as determined under guidelines

established by the chief election officer of the State involved.” 52 U.S.C. 20107. This




2
    Patricia was 73 years old at the time of her fall.



13.
abstract, general accessibility requirement does not constitute a legislative enactment the

violation of which constitutes negligence per se. Mann at ¶ 29.

       {¶ 34} Additionally, we have held that a “violation of the ADA is not negligence

per se because it requires a determination of whether certain acts are reasonable under the

specific circumstances of each case. Likewise, violations of the ADA guidelines, as

incorporated by the [Ohio Administrative Code] and [Ohio Basic Building Code], are not

evidence of negligence per se since they are administrative rules.” (Citations omitted.)

Klostermeier v. In & Out Mart, 6th Dist. Lucas No. L-00-1204, 2001 WL 305827, *3

(Mar. 30, 2001). By extension, the alleged violations of regulations promulgated by the

Ohio Secretary of State do not constitute negligence per se, as such regulations are

merely administrative rules, not legislative enactments. In short, appellants have failed to

demonstrate that appellees have violated a legislative enactment that would give rise to

negligence per se and exclude the application of the open-and-obvious doctrine.

                                   B. Active Negligence

       {¶ 35} Next, appellants contend that the hazardous conditions that led to Patricia’s

fall were caused by the union’s active negligence, namely the placement of the unsecured

floor mat over the inclined portion of the floor. Notably, appellants failed to introduce

evidence to affirmatively demonstrate that the floor mat was actually placed over the

incline. Indeed, the photographs of the floor mat, taken after the fall, depict the mat

resting on the flat surface of the floor and away from the incline, and the witnesses of the

fall, including Patricia, could not state with certainty that the floor mat was over the




14.
inclined portion of the floor prior to the fall. Moreover, the placement of the mat

occurred long before Patricia entered onto the premises, and therefore does not constitute

“active negligence.” Dunn v. Heineman’s Winery, 6th Dist. Ottawa No. OT-14-044,

2015-Ohio-4054, ¶ 12 (finding that the defendant’s placement of plywood boards did not

constitute active negligence, because it occurred before the plaintiff arrived at the

defendant’s winery and had therefore become a static condition through the lapse of

time). Thus, the “active negligence” exception to the open-and-obvious doctrine does not

apply.

                               C. Attendant Circumstances

         {¶ 36} Finally, appellants contend that the open-and-obvious doctrine does not

apply here because there were attendant circumstances that diverted Patricia’s attention

away from the hazardous floor mat and sloped floor.

         {¶ 37} An “attendant circumstance” has been described as “a factor that

contributes to the fall and is beyond the injured person’s control. The phrase refers to all

circumstances surrounding the event, such as time and place, the environment or

background of the event, and the conditions normally existing that would unreasonably

increase the normal risk of a harmful result of the event.” Jackson v. Pike Cty. Bd. of

Commrs., 4th Dist. Pike No. 0CA805, 2010-Ohio-4875, ¶ 21. Ordinarily, “the attendant

circumstance must be ‘an unusual circumstance of the property owner’s making.’”

Haller v. Meijer, Inc., 10th Dist. Franklin No. 11AP-290, 2012-Ohio-670, ¶ 10, quoting

McConnell v. Margello, 10th Dist. Franklin No. 06AP-1235, 2007-Ohio-4860, ¶ 17; see




15.
also Lang, 122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d 120, at ¶ 27 (“none of the

facts appellant raises as ‘attendant circumstances’ are conditions within the landowner’s

control. For example, the fact that her husband was tired and required an oxygen tank

were not within the landowner’s control.”).

       {¶ 38} In their brief, appellants specify the attendant circumstances faced by

Patricia as “her desire to vote, the presence of her husband, her movement through the

exterior public entrance doors of the Union Hall, and her intended progress towards the

voting machines within the facility.” These are not attendant circumstances that

eliminate the application of the open-and-obvious doctrine. None of these factors were in

any way unusual, nor were they circumstances that were within appellees’ control.

       {¶ 39} In light of the foregoing, we conclude that the hazardous conditions alleged

by appellants (the floor mat and the incline of the floor) were open and obvious to

Patricia at the time of her fall. Because no exceptions to the open-and-obvious doctrine

apply in this case, summary judgment in appellees’ favor was appropriate. Accordingly,

we find appellants’ assignments of error not well-taken.

                                     III. Conclusion

       {¶ 40} In light of the foregoing, the judgment of the Lucas County Court of

Common Pleas is hereby affirmed. Appellants are ordered to pay the costs of this appeal

pursuant to App.R. 24.

                                                                       Judgment affirmed.




16.
                                                               Lowe v. Local Union
                                                               No. 14 U.A.W.
                                                               C.A. No. L-19-1042




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Christine E. Mayle, J.
                                               _______________________________
Gene A. Zmuda, P.J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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