[Cite as Dunn v. Heineman’s Winery, 2015-Ohio-4054.]




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


Victoria Dunn                                          Court of Appeals No. OT-14-044

        Appellant                                      Trial Court No. 13CV361

v.

Heineman’s Winery                                      DECISION AND JUDGMENT

        Appellee                                       Decided: September 30, 2015

                                               *****

        Braden A. Blumenstiel, for appellant.

        Timothy C. James and Lorri J. Britsch, for appellee.

                                               *****

        JENSEN, J.

        {¶ 1} Appellant, Victoria Dunn, appeals from a judgment of the Ottawa County

Court of Common Pleas granting summary judgment to appellee, Heineman’s Winery,

regarding a trip and fall in an outdoor wine garden. For the reasons set forth below, we

affirm the judgment of the trial court.
       {¶ 2} On September 24, 2011, Dunn visited Heineman’s Winery with friends. She

had never been to the winery before. After spending a few minutes in the gift shop, she

headed toward an outdoor wine garden. The lawn area had recently been seeded and was

covered with straw. It had rained earlier that day and the ground was wet. Three pieces

of plywood had been placed on the ground so that customers could walk from the gift

shop to the wine garden without getting mud on their shoes. Dunn successfully traversed

the first two pieces of plywood, but as she raised her foot to step onto the third piece of

plywood, she tripped and fell to the ground. Dunn was embarrassed and in pain, but did

not want to “make a big deal about it.” She took a Vicodin, ate crackers, and drank some

wine. She did not report the incident to anyone at the winery.

       {¶ 3} Dunn filed suit. The winery denied negligence and, following discovery,

moved for summary judgment. The trial court found the piece of plywood an open and

obvious danger as a matter of law, leaving the winery with no duty to protect Dunn.

Dunn appealed. She sets forth the following assignments of error for our review:

              1. The trial court erred in granting Appellee’s Motion for Summary

       Judgment by applying the Open and Obvious Doctrine to a moving object.

              2. The Trial Court erred in granting the Appellee’s Motion for

       Summary Judgment by applying the Open and Obvious Doctrine to absolve

       Appellee’s active negligence.

              3. The trial court erred in granting Appellee’s Motion for Summary

       Judgment because even if the Open and Obvious Doctrine applies a



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       reasonable juror could conclude the sudden and unexpected rising of the

       third plywood board was not Open and Obvious.

              4. The Trial Court erred in granting Appellee’s Motion for

       Summary Judgment because even if the Open and Obvious Doctrine

       applies, a reasonable juror could conclude Attendant Circumstances negate

       the Open and Obvious Doctrine.

                                   Standard of Review

       {¶ 4} On review, appellate courts employ the same standard for summary

judgment as trial courts. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129,

572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is

demonstrated: “(1) that there is no genuine issue as to any material fact, (2) that the

moving party is entitled to judgment as a matter of law; and (3) that 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, who is entitled to have the evidence construed

most strongly in his favor.” Harless v. Willis Day Warehousing Co., Inc., 54 Ohio St.2d

64, 66, 375 N.E.2d 46 (1978); Civ.R. 56(C).

                                First Assignment of Error

       {¶ 5} In her first assignment of error, appellant contends the trial court erred in

applying the open and obvious doctrine to this case because the plywood was not a

“static” condition.




3.
       {¶ 6} “The open-and-obvious doctrine eliminates a premises occupier’s duty to

warn a business invitee of static dangers on the premises if the dangers are known to the

invitee or are so obvious and apparent to the invitee that he or she may reasonable be

expected to discover them and protect himself or herself against them.” Simmons v. Am.

Pacific Ent., L.L.C., 164 Ohio App.3d 763, 2005-Ohio-6957, 843 N.E.2d 1271, ¶ 21

(10th Dist.), citing Sidle v. Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589 (1968).

       {¶ 7} In Black v. Discount Drug Mart, Inc., 6th Dist. Erie No. E-06-044, 2007-

Ohio-2027, we acknowledged that the open-and obvious doctrine applies only to static

conditions. Id. at ¶ 10. We explained:

              Premises tort claims where the alleged negligence arises from static

       or passive conditions, such as preexisting latent defects, are legally distinct

       from claims averring active negligence by act or omission. * * * The

       difference between static and dynamic forms of negligence is legally

       significant, because it directly correlates to the two separate and distinct

       duties an occupier owes its business invitees: (1) static conditions relate to

       the owner’s duty to maintain its premises in a reasonably safe condition,

       including an obligation to warn its invitees of latent or hidden dangers,

       while (2) active negligence relates to the owner’s duty not to injure its

       invitees by negligent activities conducted on the premises. (Citations

       omitted). Id.




4.
       {¶ 8} Dunn argues that the open and obvious doctrine does not apply in this case

because “the plywood board which suddenly rose up and tripped Appellant was not a

static condition.”

       {¶ 9} In Black, we determined that because there was no evidence that a red

plastic bin had not been present in the aisle of a drug store for a substantial amount of

time, it had become a “static condition.” Id. at ¶ 11. We found that it “was not a

changing condition during appellant’s visit to the store.”

       {¶ 10} Applying this reasoning to the case at bar, we conclude that the plywood

board was a “static condition” as it had been placed on the wet, freshly seeded ground

prior to Dunn’s arrival at the winery. There is no evidence that the board’s condition or

location changed during Dunn’s visit to the winery. Accordingly, Dunn’s first

assignment of error is not well-taken.

                               Second Assignment of Error

       {¶ 11} In her second assignment of error, Dunn asserts that the act of placing

unsecured plywood boards on the ground across the only entrance to the Winery’s

outdoor eating area constituted “active negligence” and negated the application of the

open and obvious doctrine. In support, Dunn relies on Simmons v. Am. Pac. Enters.,

LLC, 164 Ohio App.3d 763, 2005-Ohio-6957, 843 N.E.2d 1271, where the Tenth District

Court of appeals distinguished premises tort claims alleging negligence premised on a

static or passive condition from those alleging negligence in an act or omission. Id. at ¶

20.



5.
       {¶ 12} The Simmons court differentiated the two types of negligence by focusing

on the business owner’s conduct. Id. When viewed in a light most favorable to the

injured delivery person, the evidence in Simmons revealed that the business owner

actively created the hazard while the delivery person was in the process of unloading

freight. Id. at ¶ 22. Thus, the evidence created an issue of fact regarding the business

owner’s action and whether it constituted an act of negligence to which the open and

obvious doctrine would not apply. Id. The court implied, however, that a business

owner’s active conduct may become a static condition through the lapse of time.

Sherlock v. Shelly Company, 10th Dist. Franklin No. 06AP-1303, 2007-Ohio-4522, ¶ 17,

citing Simmons at ¶ 22.

       {¶ 13} Here, as noted above, the placement of the plywood boards occurred before

Dunn arrived at the Winery. There is no issue of material fact regarding the business

owner’s action. Dunn was not injured by the Winery’s “active negligence.” Dunn’s

second assignment of error is not well-taken.

                               Third Assignment of Error

       {¶ 14} In her third assignment of error, Dunn asserts that even if the open and

obvious doctrine applies in this case, a reasonable juror could conclude that the sudden

and unexpected rising of the third plywood board was not open and obvious.

       {¶ 15} “[T]he existence and obviousness of an alleged hazard requires a review of

the underlying facts.” Freiburger v. Four Seasons Golf Center, L.L.C., 10th Dist.

Franklin No. 06AP-765, 2007-Ohio-2871, ¶ 11. If the record reveals no genuine issue of



6.
material fact as to whether the hazard was free from obstruction and readily appreciated

by an ordinary person, the open and obvious nature of the danger may be appropriately

determined as a matter of law. Id. But, if reasonable minds could differ about whether

the hazard was free from obstruction and readily appreciated by an ordinary person, then

this factual issue must be resolved before the court determines whether there is a duty

owed. Id.

       {¶ 16} Our analysis here depends upon a determination as to whether an ordinary

person would readily see and appreciate the danger imposed by the placement of large

plywood boards upon wet, newly seeded ground. During her deposition, Dunn indicated

that before walking towards the outdoor wine garden, she saw the boards and noticed

there was nothing securing them to the ground. She further indicated that she used

caution when she stepped onto the boards.

       {¶ 17} We conclude that the plywood boards were free from obstruction and their

unsecured nature readily appreciated by an ordinary person. See Mayle v. Ohio Dept. of

Rehab. & Corr., 10th Dist. Franklin No. 09AP-541, 2010-Ohio-2774, ¶ 14 (plywood

boards laid over uneven ground as part of detour established while concrete path was

under construction constituted an open and obvious hazard). Dunn’s third assignment of

error is not well-taken.

                              Fourth Assignment of Error

       {¶ 18} In her fourth assignment of error, Dunn asserts the trial court erred in

granting the winery’s motion for summary judgment because of “attendant



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circumstances.” Specifically, Dunn contends that heavy pedestrian traffic, the “recently

seeded grass and hay,” the narrow pathway over which she was forced to walk, the

crowd, the tall man immediately ahead of her, and the “two foot by two foot tote bag” she

was carrying constituted attendant circumstances which negate the open and obvious

doctrine in this case.

       {¶ 19} It has long been held that the “attendant circumstances” of a trip and

fall “may create a material issue of fact as to whether the danger was open and

obvious.” Frano v. Red Robin Int’l., Inc., 181 Ohio App.3d 13, 2009-Ohio-685,

907 N.E.2d 796, ¶ 22 (11th Dist.). “[A]ttendant circumstances are all facts

relating to a situation, such as time, place, surroundings, and other conditions that

would unreasonably increase the typical risk of a harmful result of an event.” Id.

“The attendant circumstances must, taken together, divert the attention of the

pedestrian, significantly enhance the danger of the defect, and contribute to the

fall.” Stockhauser v. Archdiocese of Cincinnati, 97 Ohio App.3d 29, 33, 646

N.E.2d 198 (2d Dist.1994).

       {¶ 20} Here, Dunn saw and was aware of the plywood boards. While she

was following a tall man, she never indicated that he diverted her attention. Nor

did she indicate that the tote, crowds, or heavy pedestrian traffic diverted her

attention. The plywood boards were open and obvious and there were no

attendant circumstances diverting Dunn’s attention and precluding the application




8.
of the open and obvious doctrine. Dunn’s fourth assignment of error is not well-

taken.

                                         Conclusion

         {¶ 21} The grant of summary judgment to the winery was appropriate. For the

reasons set forth above, the judgment of the trial court is affirmed. The costs of this

appeal are assessed to Dunn pursuant to App.R. 24.

                                                                 Judgement affirmed.



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




Mark L. Pietrykowski, J.                         _______________________________
                                                             JUDGE
Thomas J. Osowik, J.
                                                 _______________________________
James D. Jensen, 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.sconet.state.oh.us/rod/newpdf/?source=6.




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