[Cite as Gaffney v. Soukup, 2017-Ohio-7362.]


                                  IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     GEAUGA COUNTY, OHIO


SUSAN E. GAFFNEY, et al.,                       :        OPINION

                 Plaintiffs-Appellants,         :
                                                         CASE NO. 2016-G-0104
        - vs -                                  :

LINDA D. SOUKUP,                                :

                 Defendant-Appellee.            :


Civil Appeal from the Geauga County Court of Common Pleas, Case No. 15 P 000576.

Judgment: Reversed and remanded.


Rubin Guttman and Ann Marie Stockmaster, Rubin Guttman & Associates, L.P.A., 55
Public Square, Suite 1860, Cleveland, OH 44113 (For Plaintiffs-Appellants).

Frank G. Mazgaj, and Emily R. Yoder, Hanna, Campbell & Powell, L.L.P., 3737
Embassy Parkway, Suite 100, Akron, OH 44333 (For Defendant-Appellee).



THOMAS R. WRIGHT, J.



        {¶1}     Appellants, Susan E. Gaffney and Michael Gaffney, appeal the trial court’s

decision awarding summary judgment in favor of appellee, Linda D. Soukup aka Linda

D. Zipple. We reverse.

        {¶2}     Susan, Linda’s daughter, was visiting her mother in August 2013 at her

single family home. Susan had not been to her mother’s home for at least two months.

She entered through the open garage door and stayed for about an hour. Upon leaving,
Susan exited through the front door, which led to a small front porch and a set of stairs

that Linda had modified with boards and a plastic exercise step since her cement patio

landing was sinking. The exercise step was rectangular and the height of a child’s step

stool. It consisted of a solid black piece and had four gray feet attached to each corner.

The exercise step was not secured to the cement patio on which it was placed and not

attached to the steps to which it abutted. Susan stepped onto the exercise step at the

bottom of the stairs, it shifted, and her ankle snapped.

       {¶3}   Susan filed suit asserting that Linda negligently caused her injuries by

creating and maintaining a dangerous condition on her property and failing to warn

Susan of the danger.        Susan’s husband, Michael, asserted a claim for loss of

consortium.

       {¶4}   Following discovery, the trial court found the condition was open and

obvious and granted Linda summary judgment on all claims.

       {¶5}   Susan asserts one assignment of error:

       {¶6}   “The trial court erred, as a matter of law, by granting summary judgment

upon plaintiff-appellants’ premises liability claim.”

       {¶7}   Appellate courts review summary judgment decisions anew and apply the

same standard used by the trial court. Civ.R. 56(C) dictates the summary judgment

standard stating in part:

       {¶8}   “Summary judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence, and written stipulations of fact, if any, * * * show that there is no genuine issue

as to any material fact and that the moving party is entitled to judgment as a matter of




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law. No evidence or stipulation may be considered except as stated in this rule. A

summary judgment shall not be rendered unless it appears from the evidence or

stipulation, and only from the evidence or stipulation, 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, that party being entitled to have the evidence or

stipulation construed most strongly in the party's favor.”

       {¶9}   A “material fact” for summary judgment depends on the type of the claim

being litigated. Hoyt, Inc. v. Gordon & Assocs., Inc., 104 Ohio App.3d 598, 603, 662

N.E.2d 1088 (8th Dist.1995), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–

248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

       {¶10} Furthermore, “the trial court is not permitted to weigh the evidence or

choose among reasonable inferences. Dupler v. Mansfield Journal Co. (1980), 64 Ohio

St.2d 116, 121 [18 O.O.3d 354, 413 N.E.2d 1187]. Rather, the court must evaluate the

evidence, taking all permissible inferences and resolving questions of credibility in favor

of the non-moving party. Id.” Stewart v. Urig, 176 Ohio App.3d 658, 2008-Ohio-3215,

893 N.E.2d 245, ¶10 (9th Dist.)

       {¶11} In order to establish actionable negligence, Susan must show the

existence of a duty, a breach of that duty, and an injury proximately resulting from the

breach. Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677,

680, 693 N.E.2d 271 (1998); Zuzan v. Shutrump, 155 Ohio App.3d 589, 2003-Ohio-

7285, 802 N.E.2d 683, ¶6 (7th Dist.)

       {¶12} The legal duty owed by a landowner to one who enters upon his land

depends on the status of the entrant. Shump v. First Continental–Robinwood Assoc.,




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71 Ohio St.3d 414, 417, 644 N.E.2d 291 (1994). “A social guest is someone the owner

or occupier of land invites onto the property for the purpose of social interaction.”

Howze v. Carter, 9th Dist. Summit No. 24688, 2009-Ohio-5463, ¶18, citing Scheibel v.

Lipton, 156 Ohio St. 308, 329, 102 N.E.2d 453 (1951). The Supreme Court describes

the duty owed to a social guest by a homeowner as:

       {¶13} “That duty of the host * * * is to exercise ordinary care not to cause injury

to his guest by any act of the host or by any activity carried on by the host while the

guest is on the premises. Coupled with this is the duty of the host to warn the guest of

any condition of the premises known to the host and which one of ordinary prudence

and foresight in the position of the host should reasonably consider dangerous, if the

host has reason to believe that the guest does not know and will not discover such

dangerous condition.” Id.

       {¶14} However, if a condition on one’s property is open and obvious, then a

homeowner has no duty to warn her guest of the danger because the landowner may

reasonably expect individuals encountering the condition to discover the danger and

take appropriate measures to protect themselves from it. Simmers v. Bentley Constr.

Co., 64 Ohio St.3d 642, 644, 597 N.E.2d 504 (1992). The rationale for the doctrine is

that the open and obvious nature of the hazard itself is sufficient warning to the

individual encountering it. Hissong v. Miller, 186 Ohio App.3d 345, 2010-Ohio-961, 927

N.E.2d 1161, ¶10 (2d Dist.), quoting Armstrong v. Best Buy Co., 99 Ohio St.3d 79,

2003-Ohio-2573, 788 N.E.2d 1088, ¶13.               The open-and-obvious test “‘properly

considers the nature of the dangerous condition itself, as opposed to the nature of the

plaintiff's conduct in encountering it.’” Id.




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       {¶15} The critical inquiry is whether the danger is “discoverable or discernible by

one acting with ordinary care under the circumstances.” Holcomb v. Holcomb, 12th

Dist. Clermont No. CA 2013-10-080, 2014-Ohio-3081, 2014 WL 3420781, ¶16, quoting

Vanderbilt v. Pier 27, LLC, 2013-Ohio-5205, 2 N.E.3d 966, ¶12 (12th Dist.). The injured

party must not have actually seen the condition before encountering it. Instead, we

must decide whether a reasonable person exercising ordinary care in the same

circumstances would have perceived the risk, avoided it, and prevented injury. Id.

       {¶16} Whether a person owes a duty of care to protect individuals against an

open and obvious danger is generally for a court to decide. However, whether the

hazard in a case is open and obvious is a fact-driven issue that “may involve a genuine

issue of material fact, which a trier of fact must resolve.” Henry v. Dollar Gen. Store, 2d

Dist. Greene No. 2002-CA-47, 2003-Ohio-206, 2003 WL 139773, ¶10, citing Mussivand

v. David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989).

       {¶17} Whether a risk is open and obvious can be decided by a court as a matter

of law when only one conclusion can be drawn from the established facts. McDonald v.

Marbella Restaurant, 8th Dist. Cuyahoga No. 89810, 2008-Ohio-3667, ¶30; Ray v. Wal-

Mart Stores, Inc., 4th Dist. Washington No. 08CA41, 2009-Ohio-4542, ¶29.                  If

reasonable minds could disagree about whether the condition presents an open and

obvious danger, then the trier of fact must resolve this issue before a court determines

as a matter of law that the landowner has a duty. Schmitt v. Duke Realty, LP, 10th Dist.

Franklin No. 04AP-251, 2005-Ohio-4245; Henry, supra, at ¶11.

       {¶18} “The fact that a plaintiff was unreasonable in choosing to encounter the

danger is not what relieves the property owner of liability. Rather, it is the fact that the




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condition itself is so obvious that it absolves the property owner from taking any further

action to protect the plaintiff.” Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 2003-Ohio-

2573, 788 N.E.2d 1088, ¶13.       Furthermore, when a guest admits “knowing of the

danger, summary judgment is easily granted. Clearly, the danger is open and obvious

when the invitee admits to having had actual knowledge of the danger prior to being

injured by that danger.” Zuzan, supra, at ¶7.

      {¶19} Here, Susan exited through the front door. Linda opened the front door

and held it open while Susan exited the home. It was afternoon and Susan was able to

see the wooden boards resting on the middle step. She was also able to see the

bottom stair consisting of the plastic exercise step. She was not, however, able to

discern that this makeshift bottom step was not secured. Upon stepping onto the plastic

step, Susan watched it shift toward the house and her ankle snap.

      {¶20} The concrete steps leading out the front door were in existence since

Linda purchased the home. She had noticed that the bottom stair and cement patio

were sinking.   Linda preferred using this set of stairs because it had a handrail.

Therefore, she purchased a board, which she had cut into two at a hardware store. She

nailed the boards together and placed them on the middle step. She then added the

exercise step to the bottom of the stairs to serve as the bottom step because her

placement of the boards on the middle step created a large gap between the middle

step and cement patio.

      {¶21} Linda placed the exercise step at the bottom of her stairs about eight days

before Susan’s fall. Linda knew the bottom step was not secured. Susan had never

visited when the exercise step or the boards were in place.




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       {¶22} The danger here is that the bottom step was not secured. Linda knew, but

she failed to warn Susan.

       {¶23} After the fall, Linda saw that the exercise step had moved.

       {¶24} Susan acknowledges seeing the boards on the stair before traversing the

steps. She agreed that had she been concerned about the safety of the stairs, she

could have exited through the garage, which is the way she entered. Susan stated:

       {¶25} “Q. * * * So you went to exit your mom’s house, walk me through what

happens.

       {¶26} “A. Well, I walked out the – out of the living room, out the front door,

stepped on the step with my right foot, that’s the step that has the wood on it.

       {¶27} “Q. And the wood was there, correct?

       {¶28} “A. Correct. And then I stepped down on my left foot, which shows in this

picture, onto a plastic stepstool.

       {¶29} “Q. The exercise step?

       {¶30} “A. Yeah, yeah, I guess that’s what it is. And then when I stepped on it it

shifted to my – like kind of forward and to the left, which would be towards the house,

and when it shifted I felt and saw my ankle snap and –

       {¶31} “* * *

       {¶32} “Q. You didn’t have any concerns about the wood that was placed on the

steps, correct, prior to the fall?

       {¶33} “A. No, it was my first time seeing it, I didn’t really give it much thought, I

just – that’s what was there and that’s what I was going down.




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       {¶34} “Q. Okay. Certainly if you were concerned you could have gone out

through the garage?

       {¶35} “I mean, if you felt that this was an unsafe setup you could have gone --

       {¶36} “A. I could have stopped and thought about it, I guess, and said, Wait a

minute.

       {¶37} “* * *

       {¶38} “A. I mean, I guess that’s an option, I could have turned around, but it

didn’t seem logical.

       {¶39} “* * *

       {¶40} “Q. And there’s nothing that concerned you about the exercise step when

you exited the house?

       {¶41} “A. No.”

       {¶42} Although Susan saw the bottom step, she had no notice that it was

unsecured. Upon construing the evidence most strongly in Susan’s favor, neither the

parties’ testimony nor the photographs make the nature of the bottom step readily

apparent such that it is clear that a reasonable person descending these stairs would

have perceived that the bottom step was not secured to the patio or the adjacent stairs.

       {¶43} The undisputed facts permit reasonable minds to reach different

conclusions, and as such, a jury question exists. “[W]here the ultimate fact must be

determined from inferences to be drawn from other facts and where reasonable minds

may reach different conclusions from such inferences, then it is proper to submit the

determination of the ultimate fact to the jury.” Bennett v. Sinclair Refining Co., 144 Ohio

St. 139, 148-150, 57 N.E.2d 776 (1944).




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       {¶44} Accordingly, summary judgment was inappropriate, and Susan’s sole

assigned error has merit.

       {¶45} The trial court’s judgment is reversed and remanded.



TIMOTHY P. CANNON, J., concurs,

DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.


                                 ____________________



DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.

       {¶46} I dissent and would affirm the decision of the trial court on the grounds

that the purported hazardous condition in this case – an unsecured exercise step/stair-

stepper placed at the bottom of a step leading off of a patio – was open and obvious to

Gaffney at the time of her injury.

       {¶47} The open and obvious doctrine rests on the premise that “the open and

obvious nature of the hazard itself serves as a warning,” and, consequently, “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). “When applicable

* * *, the open-and-obvious doctrine obviates the duty to warn and acts as a complete

bar to any negligence claims.” Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-

Ohio-2573, 788 N.E.2d 1088, ¶ 5.




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      {¶48} In the present case, the condition of the stairs leading off of Soukup’s

patio was open and obvious. Gaffney testified that she “was able to look down and see

the top of the wooden boards and the top of the black stair stepper.” Gaffney, however,

did not give much thought to the condition of the stairs: “I didn’t really give it much

thought, * * * that’s what was there and that’s what I was going down. * * * I could have

stopped and thought about it, I guess, and said, ‘wait a minute.’”

      {¶49} The open and obvious condition of stairs is the sort of hazard to which

courts routinely apply the open and obvious doctrine.        Galligan-Dent v. Tecumseh

Outdoor Drama, 4th Dist. Ross No. 16CA3534, 2016-Ohio-7907, ¶ 22 (“the hazard

associated with the asphalt ramp/apron at the base of the stairway was open and

obvious”); Jung v. Davies, 2d Dist. Montgomery No. 09-CV-5867, 2011-Ohio-1134, ¶ 43

(“[e]ven assuming, arguendo, that the brick entryway violated some administrative

regulation with which it was required to comply, the condition of the steps, as they

actually existed, was apparent to anyone using or observing them”); Riehl v. Bird’s Nest

Inc., 6th Dist. Ottawa No. OT-09-003, 2009-Ohio-6680, ¶ 52 (“the difference in width

between the bottom stair and the sidewalk and the fact that there was a difference in

height between the sidewalk surface and ground where appellant stepped were open

and obvious conditions”); Trippett v. Trippett, 6th Dist. Erie No. E-05-097, 2006-Ohio-

3379, ¶ 11 (“the bags of books on the stairs constituted an open and obvious

condition”); Knapik v. Armstrong, 11th Dist. Ashtabula No. 2003-A-0100, 2005-Ohio-59,

¶ 17 (“there was uncontradicted evidence that the condition of the stairway was open

and obvious and that Barbara Knapik was aware of that condition”).




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       {¶50} The majority finds an issue upon which reasonable minds could differ in

that Gaffney “had no notice that [the stair-stepper] was unsecured * * *[,] that the bottom

step was not secured to the patio or the adjacent stairs.” Supra at ¶ 42. On the

contrary, no reasonable person would expect the exercise step in question, fairly

described by Gaffney as a “plastic footstool,” to be secured to anything. An exercise

step is a moveable elevated platform used in aerobic exercise, improperly employed by

Soukup as a makeshift bottom step. Gaffney knew this and could reasonably have

been expected to appreciate the attendant hazards of such employment.

       {¶51} For the foregoing reasons, I respectfully dissent and would affirm the

decision of the trial court.




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