[Cite as Butler v. Cleveland Clinic, 2018-Ohio-93.]



                    Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105457




                                       CARLA BUTLER
                                                            PLAINTIFF-APPELLANT

                                                      vs.

                                  CLEVELAND CLINIC
                                                            DEFENDANT-APPELLEE




                                             JUDGMENT:
                                              AFFIRMED



                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-16-862232

              BEFORE: Blackmon, J., Keough, P.J., and Celebrezze, J.

              RELEASED AND JOURNALIZED:                         January 11, 2018
FOR APPELLANT

Carla Butler, pro se
8206 Crumb Avenue
Cleveland, Ohio 44103


ATTORNEY FOR APPELLEE

David A. Valent
Cleveland Clinic Law Department
3050 Science Park Drive AC321
Beachwood, Ohio 44122
PATRICIA ANN BLACKMON, J.:

       {¶1}    Pro se plaintiff-appellant Carla Butler (“Butler”) appeals from the order of

the trial court granting summary judgment to defendant-appellee Cleveland Clinic

(“Cleveland Clinic”) in Butler’s action for injuries sustained from a fall.           Butler

assigns the following error for our review:

       The trial court erred in granting Cleveland Clinic’s motion for summary

       judgement finding that the hazardous condition of the parking lot was open

       and obvious thereby relieving defendant of a duty to warn[.]

       {¶2} Having reviewed the record and relevant law, we affirm the trial court’s

decision. The apposite facts follow.

       {¶3} In her complaint for relief, Butler alleged that on October 2, 2015, she

tripped and fell on a “landscaping type, raised concrete island located near the entrance to

the emergency room” as she attempted to return a wheelchair.          Butler alleged that the

area was dark, and negligently maintained, and that she sustained serious leg injuries as a

result of her fall.

       {¶4} In her deposition, Butler stated that she had taken her neighbor to the

Cleveland Clinic.     They parked in a lot that is separated from the building by a roadway

and a raised concrete and grass barrier or island that is a few inches higher than the

roadway. After the doctor visit, Butler brought her neighbor, who was in a wheelchair,

back to the car through a flat walkway that cuts through the raised concrete and grass
island.      She returned the wheelchair back to the building, and after doing so, she

decided to take a shorter path.     Instead of returning to the flat walkway, she stepped up

onto the concrete island, walking across the concrete and grass to get to her vehicle.

Butler stated that she fell when she could not see and stepped off of the grassy area.    She

also maintained that the concrete portion of the island or barrier was uneven as it had a

little “hill.”   Butler reported the incident several months later, but she did not report any

hazard contributing to the fall and did not mention any lack of lighting.

          {¶5}   Cleveland Clinic filed a motion for summary judgment, arguing that the

raised concrete island was open and obvious, and that Butler had previously observed it

while taking her neighbor back to the car.        Additionally, Cleveland Clinic argued that

when Butler reported the incident to Cleveland Clinic on January 15, 2016, she did not

mention any hazard that contributed to her fall.      The facilities engineer averred that he

was “unable to find any evidence of any reported hazards and/or existence of any hazards

during [the relevant time].”     The protective services officer likewise averred that in her

reports to the Cleveland Clinic, Butler did not mention any hazard that contributed to her

fall. Cleveland Clinic also asserted that Butler failed to establish a link between her fall

and her injuries because her physician opined that “this pain generally results from

functional problems due to a deformity in the foot and ankle[.]”

          {¶6} On January 25, 2017, the trial court granted Cleveland Clinic’s motion for

summary judgment, concluding:
       [Butler] has failed to file her brief in opposition and thus has not presented

       the Court with any material fact to consider.        Accordingly, the Court,

       having carefully considered all the evidence, and having construed the

       evidence most strongly in favor of the nonmoving party, determines that

       reasonable minds can come to but one conclusion, that there are no genuine

       issues of material fact, and that [Cleveland Clinic] is entitled to judgment as

       a matter of law.

                             Review of Summary Judgment

       {¶7}   Within her assigned error, Butler argues that the trial court erred in

awarding Cleveland Clinic summary judgment because the condition that caused her

injury was not open and obvious, and the area was poorly lit and not “free from danger”

as required under R.C. 3781.06.

       {¶8}   This court reviews a trial court’s grant of summary judgment under the de

novo standard.    Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336,

671 N.E.2d 241. Pursuant to Civ.R. 56(C), summary judgment is appropriate when: (1)

there is no genuine issue of 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 nonmoving party, said party being entitled to have the

evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp., 73 Ohio

St.3d 679, 1995-Ohio-286, 653 N.E.2d 1196, paragraph three of the syllabus; Zivich v.

Mentor Soccer Club, 82 Ohio St.3d 367, 369-370, 1998-Ohio-389, 696 N.E.2d 201.
       {¶9} The party moving for summary judgment bears the initial burden of

demonstrating that there is no genuine issue of material fact and that it is entitled to

judgment    as    a   matter   of   law.       Dresher   v.   Burt,   75   Ohio   St.3d   280,

292-293,1996-Ohio-107, 662 N.E.2d 264. Once the moving party satisfies its burden,

the nonmoving party “may not rest upon the mere allegations or denials of the party’s

pleadings, but the party’s response, by affidavit or as otherwise provided in this rule, must

set forth specific facts showing that there is a genuine issue for trial.” Id.; Mootispaw v.

Eckstein, 76 Ohio St.3d 383, 385, 1996-Ohio-389, 667 N.E.2d 1197; Civ.R. 56(E).

Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg, 65

Ohio St.3d 356, 358-359, 1992-Ohio-95, 604 N.E.2d 138.

                               Open and Obvious Doctrine

       {¶10}     The open and obvious doctrine provides that premises owners do not owe

a duty to persons entering those premises regarding dangers that are open and obvious.

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

14, citing Sidle v. Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589 (1963), 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.”           Armstrong at ¶ 5, quoting       Simmers v. Bentley

Constr. Co., 64 Ohio St.3d 642, 644, 1992-Ohio-42, 597 N.E.2d 504. Therefore, the
open and obvious doctrine obviates the duty to warn and acts as a complete bar to any

negligence claims. Id.

       {¶11}    The question of whether a danger is open and obvious is an objective one.

 Abdelshahid v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 102109,

2015-Ohio-2274, ¶ 25, citing Goode v. Mt. Gillion Baptist Church, 8th Dist. Cuyahoga

No. 87876, 2006-Ohio-6936, ¶ 25.       The fact that a plaintiff was unaware of the danger is

not dispositive of the issue.   Id. Rather, the court must consider whether, in light of the

specific facts and circumstances of the case, an objective, reasonable person would deem

the danger open and obvious.      Id.; Carpenter v. Marc Glassman, Inc., 124 Ohio App.3d

236, 705 N.E.2d 1281 (8th Dist.1997).

       {¶12}    In Hill v. Vogue Beauty Academy, 8th Dist. Cuyahoga No. 72005, 1997

Ohio App. LEXIS 3087 (July 17, 1997), this court determined that a curb near grass that

abutted defendant’s parking lot was an open and obvious condition that plaintiff should

have observed. Similarly, in       Haymond v. BP Am., 8th Dist. Cuyahoga No. 86733,

2006-Ohio-2732, ¶ 20, this court held that a concrete slab that served as a parking barrier

was an open and obvious condition that the plaintiff should have discovered and taken

steps to protect herself against. Likewise, in Brown v. Classic Ventures Food Div., Inc.,

8th Dist Cuyahoga No. 84656, 2005-Ohio-112, ¶ 15, this court held that a concrete

parking curb near an entrance drive was an open and obvious condition that the plaintiff

“should have been aware of, and he should have taken appropriate steps to protect

himself.” Id. at ¶ 16.
       {¶13} Additionally, Ohio courts have consistently recognized that darkness is an

open and obvious condition that should not be disregarded. McDonald v. Marbella

Restaurant, 8th Dist. Cuyahoga No. 89810, 2008-Ohio-3667, ¶ 33. “Darkness is always

a warning of danger, and for one’s own protection it may not be disregarded.” Id.,

quoting Jeswald v. Hutt, 15 Ohio St.2d 224, 239 N.E.2d 37 (1968), paragraph three of the

syllabus. Under this rule, courts have applied the open and obvious doctrine and denied

recovery where a plaintiff seeks to recover against a property owner for injuries sustained

as a result of stepping into darkness and sustaining injuries as a result of another object or

danger.    Id., citing Rezac v. Cuyahoga Falls Concerts, Inc., 9th Dist. Summit No. 23313,

2007-Ohio-703; Leonard v. Modene & Assoc., Inc., 6th Dist. Wood No. WD-05-085,

2006-Ohio-5471.

       {¶14} Further, with regard to parking lots, this court has observed that “one who

maintains a private motor vehicle parking area, for the accommodation of those he serves

in a professional or business way, is generally under no legal obligation to illuminate the

same at night.”    Gates v. Speedway Superamerica, L.L.C., 8th Dist. Cuyahoga No.

90563, 2008-Ohio-5131, ¶ 17 (internal quotations omitted.) The Gates court stated:

       Regardless of whether the parking lot at Speedway that evening was dim,
       partially lit, or dark, we hold that Speedway did not owe Ms. Gates a duty to
       adequately light the area. Her testimony that she knew she was stepping
       into total darkness stands as warning enough that she needed to be more
       careful.

Id. at ¶ 18.
      {¶15}    The “attendant circumstances” surrounding a slip and fall may create a

material issue of fact regarding whether the danger was open and obvious. Bounds v.

Marc Glassman, Inc., 8th Dist. Cuyahoga No. 90610, 2008-Ohio-5989, ¶ 24; Collins v.

McDonald’s Corp., 8th Dist. Cuyahoga No. 83282, 2004-Ohio-4074, ¶ 12, fn. 1.

Attendant circumstances generally include “any distraction that would come to the

attention of a pedestrian in the same circumstances and reduce the degree of care an

ordinary person would exercise at the time.” McGuire v. Sears, Roebuck and Co., 118

Ohio App.3d 494, 499, 693 N.E.2d 807 (1st Dist.1996).

      {¶16}    However, in Hope v. Kaufmann’s, 8th Dist. Cuyahoga No. 74163, 1999

Ohio App. LEXIS 2425 (May 27, 1999), this court held that the darkness in the parking

lot, the fact that plaintiff carried a shopping bag and purse, the crowded condition in the

parking lot, and the heavy holiday traffic were not “attendant circumstances” and did not

constitute attendant circumstances creating an unreasonably dangerous condition.

Accord Sheppard v. KAP Realty, 10th Dist. Franklin No. 75860, 1999 Ohio App. LEXIS

3717 (Aug. 12, 1999) (pothole in a parking lot deemed open and obvious, despite

plaintiff’s argument that she did not see it due to darkness); Mayhew v. Massey, 7th

Dist. Mahoning No. 16 MA 0049, 2017-Ohio-1016, ¶ 23 (power outage not an attendant

circumstance where plaintiff fell going down stairs).         Moreover, “darkness is a

completely predictable event that is not of the landlord’s making.” Mann v. Northgate

Investors, L.L.C., 2012-Ohio-2871, 973 N.E.2d 772 (10th Dist.), ¶ 23, quoting Mowery v.

Shoaf, 148 Ohio App.3d 403, 2002-Ohio-3006, 773 N.E.2d 1053 (7th Dist.).
       {¶17} In consideration of the foregoing principles, and following a thorough

review of the record, we note that Butler asserted both that the raised concrete and grass

barrier situated near the entrance to the emergency room was the cause of her injury and

that she could not see it properly due to poor illumination.   However, as a matter of law,

the raised concrete island was an open and obvious condition that Butler should have

observed and taken appropriate steps to protect herself against as she traversed the area.

Further, although Butler complained that the parking area was dark, Cleveland Clinic was

under no duty to illuminate the area and the darkness was itself an open and obvious

condition.     Moreover, darkness due to lack of illumination at nighttime is not an

attendant circumstance that creates an exception to the open and obvious doctrine in this

instance.

       {¶18}     Finally, Butler cites to R.C. 3781.06 in support of her claim that the area

was defective.    We note, however, that she did not raise this issue below.   In any event,

R.C. 3781.06 provides simply that public buildings “shall be safe and sanitary for their

intended use and occupancy.”      Therefore, this provision does not demonstrate that the

raised concrete island near the entrance to the emergency room was defective.

       {¶19}     In accordance with all of the foregoing, the trial court did not err in

awarding Cleveland Clinic summary judgment. The assigned error is without merit.

       {¶20}     Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, JUDGE

KATHLEEN ANN KEOUGH, P.J. and
FRANK D. CELEBREZZE, JR., J., CONCUR
