[Cite as Von Gunten v. Wal-Mart Stores, E., Inc., 2011-Ohio-4976.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



ROBERTA VON GUNTEN, ET AL.                        :        JUDGES:
                                                  :        Hon. W. Scott Gwin, P.J.
        Plaintiffs-Appellants                     :        Hon. William B. Hoffman, J.
                                                  :        Hon. Sheila G. Farmer, J.
-vs-                                              :
                                                  :
WAL-MART STORES EAST, INC.                        :        Case No. 2011CA00037
                                                  :
        Defendant-Appellee                        :        OPINION




CHARACTER OF PROCEEDING:                                   Appeal from the Court of Common
                                                           Pleas, Case No. 2010CV02429



JUDGMENT:                                                  Affirmed




DATE OF JUDGMENT:                                          September 26, 2011




APPEARANCES:

For Plaintiffs-Appellants                                  For Defendant-Appellee

RANDALL M. TRAUB                                           RICARDO J. CARDENAS
8040 Cleveland Avenue, NW                                  222 South Main Street
Suite 400                                                  Akron, OH 44308
North Canton, OH 44720
Stark County, Case No. 2011CA00037                                                  2

Farmer, J.

      {¶1}   On January 25, 2009, appellant, Roberta Von Gunten, fell at a Sam's Club

store and sustained injuries.

      {¶2}   On June 29, 2010, appellant, together with her husband, Richard Von

Gunten, filed a negligence complaint against appellee, Wal-Mart Stores East, Inc.

Appellee filed a motion for summary judgment on November 19, 2010, claiming the

open and obvious doctrine. By judgment entry filed January 26, 2011, the trial court

granted the motion.

      {¶3}   Appellants filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

      {¶4}   "THE     TRIAL     COURT    COMMITTED      REVERSIBLE      ERROR      BY

GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT."

                                            I

      {¶5}   Appellants claim the trial court erred in granting appellee's motion for

summary judgment. We disagree.

      {¶6}   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:

      {¶7}   "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
Stark County, Case No. 2011CA00037                                                    3


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."

      {¶8}   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

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30

Ohio St.3d 35.

      {¶9}   It is undisputed that appellant was a business invitee.       Accordingly,

appellee owed appellant a duty of ordinary care to maintain the premises in a

reasonably safe condition and to warn of hidden defects. Paschal v. Rite Aid

Pharmacy, Inc. (1985), 18 Ohio St.3d 203.           The open and obvious doctrine, if

applicable, is a complete bar to recovery unless the business invitee can establish

attendant circumstances. Armstrong v. Best Buy Company, Inc., 99 Ohio St.3d 79,

2003–Ohio–2573.     The rationale underlying the open and obvious doctrine is that

the "open and obvious nature of the hazard itself serves as a warning and that the

owner or occupier may reasonably expect that persons entering the premises will

discover those dangers and take appropriate measures to protect themselves." Hunter

v. Jamin Bingo Hall, Lucas App. No. L–08–1086, 2008–Ohio–4485, ¶8. "Although there

is no precise definition of 'attendant circumstances,' they generally include any

distraction that would come to the attention of an invitee in the same circumstances and

reduce the degree of care an ordinary person would exercise at the time." Carter v.
Stark County, Case No. 2011CA00037                                                       4

Miles Supermarket, Cuyahoga App. No. 95024, 2010–Ohio–6365, ¶18, citing McGuire

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

       {¶10} Appellant claims as she was entering the Sam's Club store, her attention

was diverted when a door greeter asked her for her membership card, causing her to

trip over a wet, crumpled carpet and fall. Appellant's Brief at 4-5. In her deposition at

12, appellant explained the incident as follows:

       {¶11} "A. We got out of the car and locked the car up. We came across the

parking lot. We entered into the store. My husband went to the right to get a cart and I

came into the store. The greeter was there expecting me to have this card ready,

because you have to show your card when you get in there.

       {¶12} "The carpet buckled. I caught my toe on the carpet and I stumbled. I tried

to get my balance. I fell into the metal door frame with my head, hitting it right above

the right eye."

       {¶13} Appellant claims the process in which one must present their membership

card to the door greeter distracted her. Von Gunten depo. at 14-18. However, she

could not remember if she had her membership card out or if she was retrieving it from

her purse. Id. at 21. She admitted that nothing obstructed her view of the mats as she

entered the store, but she had no recollection of actually looking at the mats prior to her

fall. Id. at 15-16.

       {¶14} In her affidavit filed with her January 14, 2011 memorandum in opposition

to the motion for summary judgment, appellant claimed she was reaching into her purse

to retrieve the membership card and the presence of the greeter distracted her.
Stark County, Case No. 2011CA00037                                                       5


       {¶15} Despite the inconsistencies, what appellant was doing cannot qualify as

attendant circumstances. What is central to the attendant circumstances rule as an

exception to the open and obvious doctrine is that the circumstance must be a condition

or distraction caused by the premises owner and not of the plaintiff's own making.

       {¶16} As is obvious from the videotape of appellant's fall, she entered the Sam's

Club store and tripped on the edge of the mat located in the vestibule between the two

doors, the outside doors and the second set of interior doors.          The greeter was

positioned on the other side of the second set of doors, inside the store. By her own

admission, she was walking in the middle of the doorways with nothing obstructing her

view of the mats.     Von Gunten depo. at 14-15.        What is also apparent from the

videotape is that the mat had a buckle along its edge which was clearly visible.

       {¶17} Upon review, we find no evidence that the presence of the greeter to

check one's membership card was an attendant circumstance which caused appellant's

fall. Therefore, the trial court did not err in granting summary judgment to appellee.

       {¶18} Appellee's additional issues pertaining to the inconsistencies between

appellant's deposition and her affidavit have no bearing on the decision given the

videotape of the incident.

       {¶19} The sole assignment of error is denied.
Stark County, Case No. 2011CA00037                                          6


      {¶20} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. concur and

Hoffman, J. dissents.




                                      _s/ Sheila G. Farmer__________________



                                      _s/ W. Scott Gwin   __________________



                                      __________________________________

                                                  JUDGES



SGF/sg 908
Stark County, Case No. 2011CA00037                                                     7

Hoffman, J., dissenting

      (¶21) I respectfully dissent from the majority opinion. When considering the

evidence in the light most favorable to Appellant as required by Civ.R. 56, I find

reasonable minds could differ as to whether attendant circumstances existed to obviate

the open and obvious doctrine.1      Specifically, whether the procedure of requiring

customers to present their identification to the greeter distracted Appellant from seeing

the otherwise open and obvious crumbled mat.



                                               ________________________________
                                               HON. WILLIAM B. HOFFMAN




1
 Upon my review of the videotape, I find it inconclusive on the key issue as to whether
attendant circumstances existed at the time of Appellant’s fall.
[Cite as Von Gunten v. Wal-Mart Stores, E., Inc., 2011-Ohio-4976.]




                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT



ROBERTA VON GUNTEN, ET AL.                             :
                                                       :
        Plaintiffs-Appellants                          :
                                                       :
-vs-                                                   :             JUDGMENT ENTRY
                                                       :
WAL-MART STORES EAST, INC.                             :
                                                       :
        Defendant-Appellee                             :             CASE NO. 2011CA00037




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to

appellants.




                                                       s/ Sheila G. Farmer__________________



                                                       _s/ W. Scott Gwin    __________________



                                                       _______________________________

                                                                       JUDGES
