[Cite as Rice v. Kroger, 2020-Ohio-2654.]




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


Mia Rice                                         Court of Appeals No. L-19-1175

        Appellant                                Trial Court No. CI0201802345

v.

Kroger - K016 Great Lakes KMA                    DECISION AND JUDGMENT

        Appellee                                 Decided: April 24, 2020

                                            *****

        Kimberly C. Kurek and Megan E. Burke, for appellant.

        Sarah A. McHugh, for appellee.

                                            *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, Mia Rice, filed this accelerated appeal from the July 30, 2019

judgment of the Lucas County Court of Common Pleas granting summary judgment in

favor of appellee, Kroger - K016 Great Lakes KMA (hereinafter “Kroger”). For the

reasons which follow, we reverse.
       {¶ 2} On May 15, 2016, appellant was injured while shopping as a business

invitee at Kroger located in Lucas County when she tripped on a pallet next to a produce

bin and fell. She filed suit against Kroger alleging claims of negligence for failure to

clear the shopping area or warn of the dangerous condition which caused her to fall.

Kroger moved for summary judgment, which was granted by the trial court.

       {¶ 3} Appellant appeals and asserts the following single assignment of error:

              THE TRIAL COURT ERRED BY GRANTING KROGER’S

       MOTION FOR SUMMARY JUDGMENT

       {¶ 4} In her sole assignment of error, appellant argues the trial court erred in

granting summary judgment to Kroger. Kroger asserted in its summary judgment motion

that appellant could not establish that Kroger owed a duty to protect appellant because the

danger in this case was open and obvious. The trial court agreed finding a pallet

positioned next to a produce bin and protruding into the aisle was objectively observable

had the plaintiff been looking where she was walking and not holding a sales flyer

directly in front of her while conversing with her boyfriend. Because the court found the

pallet was an open and obvious danger, it found Kroger was entitled to summary

judgment as a matter of law.

       {¶ 5} We review the ruling on a motion for summary judgment de novo. Grafton

v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d. 241 (1996). The purpose

behind summary judgment is to determine, by analyzing the evidence, whether a trial is

needed to resolve the case. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64,




2.
66, 375 N.E.2d 46 (1978), citing Civ.R. 56(E). Summary judgment is appropriate when:

(1) “there is no genuine issue as to any material fact,” (2) “the moving party is entitled to

judgment as a matter of law,” and (3) “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.” Id.

        {¶ 6} One prima facie element of a claim of negligence is that the defendant owed

a duty to the plaintiff. Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-

2495, 909 N.E.2d 120, ¶ 10, citing Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-

6362, 857 N.E.2d 1195, ¶ 21. (Additional citation omitted.) A landowner/occupier has

no duty to protect a business invitee from static dangers which are open and obvious

because the fact that the danger is open and obvious serves as a warning to the invitee

and absolves the landowner/occupier of any duty to protect the plaintiff. Lang at ¶ 11;

Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088,

syllabus. “A hazard is considered to be open and obvious when it is in plain view and

readily discoverable upon ordinary inspection.” Miller v. First Internatl. Fid. & Trust

Bldg., Ltd., 6th Dist. Lucas No. L-08-1187, 2009-Ohio-6677, ¶ 68. When the danger

existed prior to the time the plaintiff entered the area, it constitutes a static condition.

Lowe v. Local Union No. 14 U.A.W., 6th Dist. Lucas No. L-19-1042, 2020-Ohio-703,

¶ 35.




3.
       {¶ 7} When the facts are undisputed, the determination of whether a condition on

the premises is an open and obvious danger is generally a question of law for the court to

determine, Howard v. Meat City, Inc., 3d Dist. Allen No. 1-16-32, 2016-Ohio-7989, ¶ 12.

Where the facts are disputed or reasonable minds could differ regarding whether the

danger is open and obvious because of the attendant circumstances, the issue must be

submitted to a jury for determination. Id.; Ray v. Wal-Mart Stores, Inc., 4th Dist.

Washington No. 08CA41, 2009-Ohio-4542, ¶ 29. Furthermore, we must consider

whether a reasonable person would have seen the danger and not whether a particular

plaintiff saw it. Id. at ¶ 21; Breier v. Wal-Mart Stores, Inc., 6th Dist. Lucas No.

L-08-1327, 2008-Ohio-6945, ¶ 11. The plaintiff’s individual behavior is relevant only if

it represents the typical and expected behavior of a reasonable business invitee, which

should have caused the property owner to have considered whether a warning of the

danger was necessary. Mulcahy v. Best Buy Stores, LP, 5th Dist. Delaware No.

13CAE060051, 2014-Ohio-1163, ¶ 25. While an invitee is expected to be aware of their

surroundings and look down to avoid a danger, Armstrong at ¶ 16; Breier at ¶ 11; Cole v.

McCarthy Mgt., LLC, 6th Dist. Lucas No. L-03-1020, 2003-Ohio-5181, ¶ 11, the open

and obvious standard is not so strict so as to require a person to constantly be looking

downward for dangers under all circumstances. Grossnickle v. Village of Germantown, 3

Ohio St.2d 96, 209 N.E.2d 442 (1965), paragraph two of syllabus.

       {¶ 8} Attendant circumstances are any factors that would affect the degree of care

an ordinary person would exercise in order to avoid an open and obvious danger. Horner




4.
v. Jiffy Lube Internatl., Inc., 10th Dist. Franklin No. 01AP-1054, 2002-Ohio-2880, ¶ 24.

The attendant circumstances are considered if they contributed to the fall, were created by

the property owner and were outside of the invitee’s control, and would have distracted a

reasonable person. Mulcahy at ¶ 20. However, ordinary distractions from merchandise

displays and signs do not excuse a business invitee from discovering open and obvious

dangers. Snyder v. Kings Sleep Shop, L.L.C., 6th Dist. Williams No. WM-13-006, 2014-

Ohio-1003, ¶ 24.

       {¶ 9} When considering whether the danger is open and obvious, the focus is on

the ability of a reasonable person to perceive the danger under the circumstances, not on

the actions of the individual plaintiff, which are considerations for determining proximate

cause. Armstrong at ¶ 11, 13; Cole at ¶ 9 (the condition must be apparent enough to

create an adequate warning). Furthermore, open and obvious exception requires that the

business invitee must have some expectation of encountering the danger or have had a

sufficient amount of time to perceive the danger before it was encountered in order to be

able to take corrective action and avoid it. Kraft v. Dolgencorp Inc., 7th Dist. Mahoning

No. 06-MA-69, 2007-Ohio-4997, ¶ 35, 38.

       {¶ 10} Regarding low-lying dangers, the Ohio Supreme Court has held that a

permanent, low-lying guardrail at a store entrance was open and obvious, if the patron

had been paying attention, because nothing obstructed his view of the danger. Armstrong

at ¶ 16. However, falls due to temporary pallets or low-lying dangers can present a jury

question as to whether the danger was open and obvious when the business invitee’s view




5.
of the danger was temporarily obstructed by its location, other objects, or the attendant

circumstances even if the danger was clearly visible after the fall. See Mulcahy at ¶ 28-

29 (jury question as to whether a bottom shelf of an empty standing fixture was an open

and obvious danger); Melroy v. Circle K Store, 11th Dist. Portage No. 2012-P-0158,

2013-Ohio-2837, ¶ 18-20 (jury issue whether attendant circumstances distracted the

patron from noticing a pallet protruded further into the walkway than the merchandise

stored on top of it); Bumgardner v. Wal-Mart Stores, Inc., 2d Dist. Miami No.

2002-CA-11, 2002-Ohio-6856, ¶ 26 (jury issue as to whether a pallet, located in an area

were the patron would be changing direction and which was obscured by merchandise,

was open and obvious); Klauss v. Marc Glassman, Inc., 8th Dist. Cuyahoga No. 84799,

2005-Ohio-1306, ¶ 21 (jury question whether an empty pallet, located in cross aisle and

flanked by a bench and a display, was open and obvious from the plaintiff’s direction of

travel); Carpenter v. Marc Glassman, Inc., 124 Ohio App.3d 236, 240, 705 N.E.2d 1281

(8th Dist.1997) (jury question whether an empty display platform, located at the end of an

aisle in the cross aisle, with a bench on one side and a display rack on the other side, was

open and obvious); Grudzinski v. Seaway Food Town, Inc., 6th Dist. Lucas No. L-95-392,

1996 WL 354890, *3 (June 28, 1996) (jury issue whether raised mats protruding from

under a produce counter was an open and obvious danger where a post blocked the

invitee’s view). Compare Kohler v. Camp Runinmuck, 6th Dist. Ottawa No. OT-19-016,

2019-Ohio-5276, ¶ 24 (reasonable minds could only conclude that a large cart

encountered in a parking lot was an open and obvious danger); Ankney v. Seaway




6.
Foodtown, 6th Dist. Wood No. WD-90-55, 1991 WL 26666, *1 (Mar. 1, 1991) (no

question of fact presented as to whether a pole was an open and obvious danger where a

store patron ran into a pole because she was not looking in the direction she was

traveling).

       {¶ 11} The facts in this case are generally undisputed except for the color of the

pallet and floor. Appellant, who is 4 foot 11 inches tall, testified at her deposition that

when she entered Kroger in the late morning, she took a copy of the sale flyer while her

boyfriend grabbed a cart. As they moved into the store, she was reading the flyer and

conversing with her boyfriend who was slightly ahead of her on her left. When appellant

came around the first bin, which was waist high and on her right, she tripped on

something and fell and suffered injury. At the same time, she had been glancing at the

flyer, which she was holding open in front of her with both hands. She denied that the

sales flyer blocked her view of the pallet and asserted she could see the area with her

peripheral vision. After the incident, she saw that she had tripped on a wooden pallet she

had been unable to see because the produce bin obstructed her view from the direction

she had been traveling. She described the pallet as an ordinary, unpainted wooden pallet

approximately 5-6 inches high and the floor as a beige/white. Appellant did not see any

employees near the pallet. She overheard an employee direct another employee to

remove the empty pallets and he immediately removed the pallet which had caused her

fall. Shortly after she left the store, she returned to notify management of her fall and

injuries.




7.
       {¶ 12} The manager of the Kroger store testified at his deposition there is no video

surveillance of the produce department. When appellant told him of her fall, he walked

over to the area. He did not see a pallet on the floor. He believed the pallet would have

been painted blue on the edges (because all of their wood pallets have been painted for

the prior 18-19 years) and the floor is a tannish grey. He testified the normal practice for

the department is to have employees stage a cart filled with cardboard produce boxes near

the pallet to warn patrons of the presence of the pallet and to place pallets between the

aisles. Standard safety procedure did not allow an empty pallet to be left on the floor

because it would be a safety hazard.

       {¶ 13} In her sole assignment of error, appellant argues Kroger created the

dangerous condition by leaving an empty pallet next to a produce bin without any

warning. Furthermore, she argues that the determination of whether a hazard is an open

and obvious danger is factually based and cannot be determined as a matter of law unless

reasonable minds could only reach one conclusion. In this case, appellant argues the

facts show the empty pallet was not an open and obvious danger because its position next

to the produce bin obstructed her view until she turned to walk around the produce bin.

Secondly, appellant argues the attendant circumstances surrounding her fall negate

application of the open and obvious defense: the pallet was obstructed from view until

she was changing direction to travel around the bin and the pallet was empty and a

similar color to the floor. We note these factors are not the typical type of “attendant

circumstances” as the term is normally used. These factors did not distract appellant so




8.
that she could not appreciate the danger. Rather, these are the facts from which we must

determine whether a reasonable person would have found the pallet was an open and

obvious danger.

       {¶ 14} Kroger argues the presence of a large pallet in the produce area was a

foreseeable condition and was open and obvious to a reasonable patron who was aware of

her surroundings. Furthermore, it asserts appellant did not exercise ordinary care as she

negotiated the produce department because she was unaware of her surroundings as she

moved while reading the sales flyer. Relying on her peripheral vision was insufficient to

appreciate danger directly in front of her. Kroger also argues that even if the pallet was

not an open and obvious danger, it is still entitled to summary judgment because

appellant has failed to prove Kroger breached its duty of care.

       {¶ 15} Upon a review of these facts, we find reasonable minds could differ

regarding whether the danger in this case was open and obvious. While a working pallet

in a produce department is reasonably to be expected, reasonable minds could disagree

whether an empty pallet located next to a produce bin would be hidden from view until a

patron was nearly upon it and whether it was readily apparent to a reasonable patron in

the process of shopping who was traveling in the same direction as appellant. The trial

court erroneously took into consideration appellant’s actions at the time, reading a sales

flyer as she was shopping, which is not relevant to the issue of whether the element of

duty was established. Therefore, we find summary judgment was inappropriate and we

find appellant’s sole assignment of error well-taken.




9.
        {¶ 16} Kroger asserts we should also consider whether it breached its duty of care.

This issue, however, was never asserted below and will not be considered for the first

time on appeal. State v. Wintermeyer, Slip Opinion No. 2017-1135, 2019-Ohio-5156,

¶ 10.

        {¶ 17} Having found that the trial court committed error prejudicial to appellant

and that substantial justice has not been done, the judgment of the Lucas County Court of

Common Pleas is reversed and remanded for proceedings consistent with this decision.

Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                        Judgment reversed.



       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
Arlene Singer, J.
                                                _______________________________
Christine E. Mayle, 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.supremecourt.ohio.gov/ROD/docs/.




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