[Cite as Schubert v. Univ. of Akron-Wayne College, 2010-Ohio-5910.]

                                                       Court of Claims of Ohio
                                                                              The Ohio Judicial Center
                                                                      65 South Front Street, Third Floor
                                                                                 Columbus, OH 43215
                                                                       614.387.9800 or 1.800.824.8263
                                                                                  www.cco.state.oh.us




SALLY SCHUBERT

       Plaintiff

       v.

UNIVERSITY OF AKRON-WAYNE COLLEGE, et al.

       Defendants
       Case No. 2009-07105

Judge Alan C. Travis

DECISION




        {¶ 1} On August 23, 2010, defendants filed a motion for summary judgment
pursuant to Civ.R. 56. On October 4, 2010, plaintiff filed a response. On October 7,
2010, the court conducted an oral hearing on the motion.1
        {¶ 2} Civ.R. 56(C) states, in part, as follows:
        {¶ 3} “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, timely filed in the action, 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 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.” See also
Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317.
        {¶ 4} On August 27, 2007, plaintiff began her first day as a student at
defendant’s college.2 At approximately 5:30 p.m., plaintiff attempted to enter a set of
doors near the library.        Plaintiff pulled the door open with her right hand, stepped
through the doorway with her left foot, and held the door open with her right hand to pull
her rolling book bag through the doorway. As she entered the building, plaintiff’s right
foot caught on the lip of the threshold of the doorway causing her to fall. Another
student notified a security guard about the accident. An ambulance was called, and the
security guard completed an incident report. As a result of the fall, plaintiff sustained
both a fractured hip and femur.
        {¶ 5} Plaintiff asserts that defendant was negligent when it allowed a dangerous
condition to exist on its premises; namely, a raised threshold at the doorway. Plaintiff
further asserts that the defective condition of the threshold violates section 1008.1.6 of
the Ohio Building Code.
        {¶ 6} Defendant argues that the raised threshold was an open and obvious
condition, and that the building where plaintiff fell was in compliance with the code when
it was constructed in 1972.
        {¶ 7} In order for plaintiff to prevail upon her claim of negligence, she must
prove by a preponderance of the evidence that defendant owed her a duty, that
defendant’s acts or omissions resulted in a breach of that duty, and that the breach
proximately caused her injuries. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 81,
2003-Ohio-2573, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d
75, 77.
        {¶ 8} Under Ohio law, the duty owed by an owner or occupier of premises
generally depends on whether the injured person is an invitee, licensee, or trespasser.


        1
          At the hearing, over defendants’ objection, the court found that plaintiff’s response was timely
filed. In addition, defendants were granted leave to file a reply.
         2
          “Defendant” shall be used to refer to The University of Akron - Wayne College throughout this
decision.
Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315, 1996-
Ohio-137. Plaintiff was on defendant’s premises for purposes that would classify her as
an invitee, defined as a person who comes “upon the premises of another, by invitation,
express or implied, for some purpose which is beneficial to the owner.” Baldauf v. Kent
State Univ. (1988), 49 Ohio App.3d 46, 47. An owner or occupier of premises owes its
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.” Armstrong,
supra, at 80.
       {¶ 9} Plaintiff submitted the affidavit of William J. Marras, a registered architect
in the State of Ohio, who avers that the entry/exit assemblies of the doorway where
plaintiff fell do not comply with the Ohio Building Code. Plaintiff asserts that the affidavit
creates issues of fact which preclude the granting of summary judgment. However,
even if the height of the threshold were to be determined to be in violation of the Ohio
Building Code, the Supreme Court of Ohio has stated that “[t]he open-and-obvious
doctrine may be asserted as a defense to a claim of liability arising from a violation of
the Ohio Basic Building Code.” Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-
Ohio-2495, paragraph one of the syllabus.
       {¶ 10} “Open-and-obvious hazards are those hazards that are neither hidden nor
concealed from view and are discoverable by ordinary inspection. ‘[T]he dangerous
condition at issue does not actually have to be observed by the plaintiff in order for it to
be an “open and obvious” condition under the law. Rather, the determinative issue is
whether the condition is observable.’ Put another way, the crucial inquiry is whether an
invitee exercising ordinary care under the circumstances would have seen and been
able to guard himself against the condition. Thus, this court has found no duty in cases
where the plaintiff could have seen the condition if he or she had looked even where the
plaintiff did not actually notice the condition before falling.”    McConnell v. Margello,
Franklin App. No. 06AP-1235, 2007-Ohio-4860, ¶10. (Internal citations omitted.)
       {¶ 11} Furthermore, plaintiff has a duty to exercise some degree of care for her
own safety while walking. See Lydic v. Lowe’s Companies, Inc., Franklin App. No.
01AP-1432, 2002-Ohio-5001, at ¶16. “A pedestrian’s failure to avoid an obstruction
because he or she did not look down is no excuse.” Id.
       {¶ 12} “[U]nless the record reveals a genuine issue of material fact as to whether
the danger was free from obstruction and readily appreciable by an ordinary person, it is
appropriate to find that the hazard is open and obvious as a matter of law.” McConnell,
at ¶11, citing Freiburger v. Four Seasons Golf Ctr., L.L.C., Franklin App. No. 06AP-765,
2007- Ohio-2871.
       {¶ 13} Plaintiff asserts that attendant circumstances at the time of her fall create
an issue of fact as to whether the threshold of the doorway was an open and obvious
hazard. Plaintiff asserts that prior to her fall, she was navigating a rolling book bag full
of books and that it would be unreasonable to expect that she could have noticed the
height difference in the doorway.
       {¶ 14} However, attendant circumstances do not include plaintiff’s activity at the
moment of the fall, unless her attention was diverted by an unusual circumstance of the
property owner’s making. See McGuire v. Sears, Roebuck & Co., (1996), 118 Ohio
App.3d 494, 498.
       {¶ 15} In her deposition, plaintiff stated that the weather that day was warm and
sunny; that the lighting in the hallway to the building was “good”; that she had a clear
view of the door as she approached it; and that when she pulled the door open, she was
attempting to simultaneously get herself and her rolling book bag through the door.
Plaintiff also testified that the grounds outside of the door were clear and that nothing on
the ground or floor obstructed her view of the threshold.
       {¶ 16} Construing the evidence most strongly in plaintiff’s favor, the court finds
that the threshold of the doorway was observable, and, thus, it was an open and
obvious condition.   Furthermore, plaintiff’s deposition testimony establishes that her
attention was not diverted by any unusual circumstance of defendant’s making when
she crossed the threshold of the building. Indeed, plaintiff’s actions of maneuvering a
rolling book bag through the doorway cannot, as a matter of law, constitute an attendant
circumstance. Accordingly, defendant owed no duty to plaintiff, and plaintiff’s claim of
negligence is barred as a matter of law.
       {¶ 17} Based upon the foregoing, defendants’ motion for summary judgment
shall be granted and judgment shall be rendered in favor of defendants.
                                               Court of Claims of Ohio
                                                                         The Ohio Judicial Center
                                                                 65 South Front Street, Third Floor
                                                                            Columbus, OH 43215
                                                                  614.387.9800 or 1.800.824.8263
                                                                             www.cco.state.oh.us




SALLY SCHUBERT

      Plaintiff

      v.

UNIVERSITY OF AKRON-WAYNE COLLEGE, et al.

      Defendants
      Case No. 2009-07105

Judge Alan C. Travis

JUDGMENT ENTRY




       An oral hearing was conducted in this case upon defendants’ motion for
summary judgment.       For the reasons set forth in the decision filed concurrently
herewith, defendants’ motion for summary judgment is GRANTED and judgment is
rendered in favor of defendants. Court costs are assessed against plaintiff. The clerk
shall serve upon all parties notice of this judgment and its date of entry upon the journal.



                                          _____________________________________
                                          ALAN C. TRAVIS
                                          Judge

cc:
Barry M. Ward                       Jennifer A. Adair
One Cascade Plaza, Suite 1000       John P. Reichley
Akron, Ohio 44308                   Assistant Attorneys General
                                    150 East Gay Street, 18th Floor
                                    Columbus, Ohio 43215-3130

HTS/cmd
Filed November 10, 2010
To S.C. reporter December 1, 2010
