[Cite as Bauermeister v. Real Pit BBQ, L.L.C., 2014-Ohio-4501.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



THERESA BAUERMEISTER                              :               JUDGES:
                                                  :               Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellant                       :               Hon. Sheila G. Farmer, J.
                                                  :               Hon. John W. Wise, J.
-vs-                                              :
                                                  :
REAL PIT BBQ, LLC, ET AL.                         :               Case No. 14 CAE 04 0024
                                                  :
        Defendants-Appellees                      :               OPINION




CHARACTER OF PROCEEDING:                                          Appeal from the Court of Common
                                                                  Pleas, Case No. 11 CVC-10-1213




JUDGMENT:                                                         Affirmed




DATE OF JUDGMENT:                                                 October 9, 2014




APPEARANCES:

For Plaintiff-Appellant                                           For Defendants-Appellees

ANDREW FUCHS                                                      JOHN C. NEMETH
580 South High Street, Suite 200                                  21 East Frankfort Street
Columbus, OH 43215                                                Columbus, OH 43206
Delaware County, Case No. 14 CAE 04 0024                                                  2

Farmer, J.

       {¶1}   On October 7, 2009, appellant, Theresa Bauermeister, ate dinner at Local

Roots restaurant located in a commercial strip mall. Upon leaving, appellant walked

down a flight of stairs to the parking lot and fell at the bottom, sustaining injuries.

       {¶2}   On October 3, 2011, appellant filed a complaint against appellees, Vincent

Margello, Jr., VMJ, Jr. Inc., and Margello Development Company, and others, for

negligence. Appellant alleged that appellees owned, controlled, and/or operated the

subject premises.

       {¶3}   On November 14, 2012, appellees filed a motion for summary judgment,

claiming the steps were not negligently maintained, the open and obvious doctrine, and

no duty to light the parking lot area.         Appellant filed a memorandum contra on

December 14, 2014 and supplemental authority on April 30, 2013. By judgment entry

filed March 28, 2014, the trial court granted appellees' motion, finding no duty based on

the open and obvious doctrine.

       {¶4}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                               I

       {¶5}   "THE     JURY    MUST      BE    ALLOWED TO          DECIDE WHETHER         A

CONDITION IS OPEN AND OBVIOUS AS IT IS A QUESTION OF FACT."

                                               II

       {¶6}   "THE TRIAL COURT'S RULING CONTRADICTS PUBLIC POLICY AND

IS TO THE DETRIMENT OF PUBLIC SAFETY."
Delaware County, Case No. 14 CAE 04 0024                                                 3


                                             I

       {¶7}    Appellant claims the trial court erred in granting summary judgment to

appellees as genuine issues of material fact exist on whether the condition was open

and obvious, and the decision is against public policy and is detrimental to public safety.

We disagree.

       {¶8}    Summary Judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:



               Civ.R. 56(C)   provides that before summary judgment may be

       granted, it must be determined that (1) no genuine issue as to any

       material fact remains to be litigated, (2) the moving party is entitled to

       judgment as a matter of law, and (3) it appears from the evidence that

       reasonable minds can come to but one conclusion, and viewing such

       evidence most strongly in favor of the nonmoving party, that conclusion is

       adverse to the party against whom the motion for summary judgment is

       made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511,

       628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50

       Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274.



       {¶9}    As an appellate court reviewing summary judgment motions, we must

stand in the shoes of the trial court and review summary judgments on the same
Delaware County, Case No. 14 CAE 04 0024                                                   4

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio

St.3d 35 (1987).

       {¶10} At the outset, we note appellant's public safety argument was not argued

to the trial court in her December 14, 2012 response to the summary judgment motion

or in her supplemental authority filed April 30, 2013. Further, in her appellate reply brief,

appellant raised for the first time the issue of the staircase in violation of the Ohio

Building Code. Because these issues were not raised to the trial court, we find they are

not available for appeal. Young v. Rogers, 12th Dist. Butler No. CA2001-08-183, 2002-

Ohio-5135.

       {¶11} In her complaint filed October 3, 2011, appellant alleged that appellees

failed to keep the premises reasonably safe for its customers i.e., unreasonable

illumination and tilted and irregular height of the bottom step, and appellees failed to

comply with Powell City Ordinances 1323.04 (duty of owner to keep premises free of

hazards), 521.06 (keep sidewalks in repair and free of any nuisance), 521.04 (no

person shall place anything on a sidewalk which may damage the property or injure

another), and 1341.01 (any portion of a building which has inadequate means of ingress

or egress is a nuisance and shall be abated).

       {¶12} In order to establish a claim for negligence, one must show the existence

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

Feldman v. Howard, 10 Ohio St.2d 189 (1967). The existence of a duty is a threshold

question in a negligence case.

       {¶13} It is undisputed that appellant was a business invitee. As a business

invitee, appellees owed appellant the duty "of ordinary care in maintaining the premises
Delaware County, Case No. 14 CAE 04 0024                                             5


in a reasonably safe condition so that its customers are not unnecessarily and

unreasonably exposed to danger." Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d

203, 203 (1985). "Where a danger is open and obvious, a landowner owes no duty of

care to individuals lawfully on the premises." Armstrong v. Best Buy Company, Inc., 99

Ohio St.3d 79, 2003-Ohio-2573, syllabus.

      {¶14} In Armstrong at ¶ 5, the Supreme Court of Ohio discussed the open and

obvious doctrine as follows:



             The sole issue before this court concerns the viability of the open-

      and-obvious doctrine, which states that a premises-owner owes no duty to

      persons entering those premises regarding dangers that are open and

      obvious. Sidle v. Humphrey (1968), 13 Ohio St.2d 45, 42 O.O.2d 96, 233

      N.E.2d 589, 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. (1992), 64 Ohio St.3d 642, 644, 597 N.E.2d 504.          A shopkeeper

      ordinarily owes its business invitees a duty of ordinary care in maintaining

      the premises in a reasonably safe condition and has the duty to warn its

      invitees of latent or hidden dangers. Paschal v. Rite Aid Pharmacy, Inc.

      (1985), 18 Ohio St.3d 203, 18 OBR 267, 480 N.E.2d 474; Jackson v.

      Kings Island (1979), 58 Ohio St.2d 357, 12 O.O.3d 321, 390 N.E.2d 810.
Delaware County, Case No. 14 CAE 04 0024                                                6


      When applicable, however, the open-and-obvious doctrine obviates the

      duty to warn and acts as a complete bar to any negligence claims.



      {¶15} As the Armstrong court explained at ¶ 13:



             By focusing on the duty prong of negligence, the rule properly

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

      nature of the plaintiff's conduct in encountering it. 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

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

      taking any further action to protect the plaintiff.



      {¶16} "[T]he landowner's duty is not to be determined by questioning 'whether

the [condition] could have been made perfect or foolproof. The issue is whether the

conditions that did exist were open and obvious to any person exercising reasonable

care and watching where she was going.' "              Jackson v. Pike County Board of

Commissioners, 4th Dist. Pike No. 10CA805, 2010-Ohio-4875, ¶ 18, quoting Orens v.

Ricardo's Restaurant, 8th Dist. Cuyahoga No. 70403, 1996 WL 661024 (Nov. 14, 1996).

      {¶17} The issue of the summary judgment motion which we review as de novo

was whether any defect in the stairway or handrail was open and obvious.
Delaware County, Case No. 14 CAE 04 0024                                                    7


       {¶18} Under a Civ.R. 56 standard, we must consider the facts most favorable to

the non-moving party. Appellant's deposition and response to the summary judgment

motion argue the following facts to be true:

              1) Appellant was exiting the restaurant when it was dark outside, at

       approximately 9:30 p.m. Bauermeister depo. at 48.

              2) Appellant walked across an elevated deck in front of the building in the

       direction of the east parking lot. Id. at 49.

              3) Appellant proceeded down a flight of stairs leading to the parking lot.

       Id. at 53.

              4) Appellant used the handrail on the one side, and her other arm was

       linked in her fiancée's arm. Id.

              5) At the bottom of the stairway, appellant fell because "I stepped onto an

       uneven, tilted piece of asphalt." Id. at 55.

              6) Appellant was looking down and saw the asphalt, but never any

      obstruction. Id. at 57. She just felt the asphalt was uneven and tilted as she fell.

      Id. at 58.

              7) Appellant stated "I believe I stepped in this area, and with it being tilted

      or slanted, it threw my body to the right and I fell on my right elbow." Id. at 61.

              8) Appellant believed the last step was a little longer or further down than

      the rest. Id. at 73.

              9) Appellant had traversed the exact same route to enter the restaurant

      during the daylight hours. Id. at 30-31, 69.
Delaware County, Case No. 14 CAE 04 0024                                                   8


              10) Appellant had successfully negotiated going up the steps using the

       handrail. Id. at 31-32 and 37.

              11) Exhibit 1 marked in the deposition is a picture of the stairway, handrail,

       and asphalt. It is attached to this opinion as Exhibit A.

       {¶19} On December 10, 2012, appellant filed the affidavit of an architect, Lee

Martin. Mr. Martin opined there was "a significant lack of uniformity in the asphalt that

was directly at the bottom of the last stair," there was "an unsafe lack of uniformity in the

height of the risers on the stairs," the handrail "did not extend beyond the newel post on

the last step," and the asphalt landing was excessively sloped at the bottom of the

stairs, about 10% in excess of the Ohio Building Code requirement on slopes of only 2%

or less.

       {¶20} In reviewing the photograph, attached to this opinion as Exhibit A, the trial

court stated the following in its judgment entry filed March 28, 2014:



              In this case, the "danger" identified by the Plaintiff could be clearly

       seen. See Bauermeister Deposition Exhibit 1 (photo). The slated "slab"

       of asphalt at the bottom of the stairway was not hidden, nor

       concealed.***Plaintiff had traversed this same route without incident on

       her way into the building. Thus, she had an opportunity to observe this

       condition, in sunlight, on a beautiful day. The fact that Plaintiff fell when

       exiting at night time does not negate the obviousness of the condition. A

       business owner has no affirmative duty to light walkways and public

       parking lots outside of their business to accommodate invitees. In fact,
Delaware County, Case No. 14 CAE 04 0024                                               9


       darkness is always a warning of danger and is, of itself, an open an (sic)

       obvious condition.***

                Furthermore, Plaintiff's claim that the slanting pavement violated

       city ordinances does not bar the application of the open and obvious

       doctrine.*** (Citations omitted.)



       {¶21} Appellant argues the question of open and obvious is a jury issue, citing in

support the Ohio Jury Instructions. This argument is opposite to Justice Sweeney, Sr.'s

analysis in Armstrong at ¶ 13 cited supra. Therefore, the open and obvious doctrine

relates to the threshold issue of duty and is an absolute defense to a landlord's duty to

take "ordinary care" in maintaining premises in a "reasonable safe condition." Duty is a

question of law as is the existence of an open and obvious condition.

       {¶22} Accepting appellant's expert's opinion as unchallenged, we find the slope

deviation that Mr. Martin found substantiates appellees' theory that the slope and riser

height differentiation is open and obvious and a bar to a negligence action. A picture is

worth a thousand words.         As observed in Exhibit A, the slope is obvious and

recognizable.     Further, appellant's own admission indicates the slope caused her

misstep, not the lack of an extended handrail. Appellant admitted to looking down and

following the couple in front of her, and she had previously traversed the area safely

when going to the restaurant.

       {¶23} We conclude the steps, risers, and asphalt were open and obvious to all

who left the area and is a bar to appellant's recovery.
Delaware County, Case No. 14 CAE 04 0024                                      10


      {¶24} Upon review, we find the trial court did not err in granting summary

judgment to appellees.

      {¶25} Assignments of Error I and II are denied.

      {¶26} The judgment of the Court of Common Pleas of Delaware County, Ohio is

affirmed.

By Farmer, J.

Gwin, P.J. and

Wise, J. concur.




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