[Cite as Smith v. Wal-Mart Stores, Inc., 2019-Ohio-2425.]




                            IN THE COURT OF APPEALS OF OHIO
                               FOURTH APPELLATE DISTRICT
                                     ROSS COUNTY

SHAHIN SMITH, et al.            :
                                :
     Plaintiffs-Appellants,     : Case No. 18CA3661
                                :
     vs.                        :
                                : DECISION AND JUDGMENT
WAL-MART STORES, INC, et al., : ENTRY
                                :
     Defendants-Appellants.     :
_____________________________________________________________
                            APPEARANCES:

Thomas W. Ellis and Frederic A. Portman, Agee, Clymer, Mitchell &
Portman, Columbus, Ohio, for Appellants.

Patrick Kasson and Jackie M. Jewell, Reminger Co., LPA, Columbus, Ohio,
for Appellee, Walmart Stores, Inc.1
_____________________________________________________________

Smith, P. J.

         {¶1} Appellants, Shahin and Steven Smith, appeal the trial court's

grant of summary judgment in favor of Appellee, Wal-Mart Stores, Inc., on

their claims for negligence and loss of consortium. On appeal, Appellants

contend that the trial court erred by granting summary judgment in favor of


1
 Appellants initially named Walmart Stores, Inc. as well as John Doe Individuals One through Five, John
Doe Corporations One through Five, and John Doe Business Entities One through Five as defendants.
However, none of the John Doe defendants participated below and they are not participating on appeal.
Further, it appears that when the trial court granted summary judgment to Appellee, Walmart Stores, Inc., it
entered judgment against Appellants as to their complaint in its entirety.
Ross App. No.
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Appellee. In light of our finding that no genuine issue of material fact exists

as to whether the hazard at issue herein was open and obvious, we conclude

Appellant's sole assignment of error lacks merit. Accordingly, it is

overruled and the judgment of the trial court is affirmed.

                                   FACTS

      {¶2} Appellant, Shahin Smith, went to the Wal-Mart store located in

Chillicothe, Ohio on July 23, 2015, where she had shopped thousands of

times, to purchase vegetables and medicine. Her husband, Steven Smith,

accompanied her during her trip and was pushing the shopping cart for her

while she shopped. Mrs. Smith approached a produce bin stocked with

tomatoes and she “reached hard” and leaned against the bin in order to grab

the particular tomato she wanted. As she reached and leaned, she felt

something that seemed like a knife stabbing her in the thigh. When she

looked to see what had caused her pain, she saw what she described as a

“broken basket” with a “knife type thing” that was sharp. Mrs. Smith

reported the incident to store management who inspected and photographed

the basket. Mrs. Smith then left the store with her husband. She eventually

sought medical treatment for her injury, had an MRI and underwent a month

and a half of physical therapy with little improvement. As a result of her

injury, she ended up seeking treatment from a general physician, a
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neurologist and a pain management physician. Although acupuncture was

recommended, it was cost prohibitive.

         {¶3} As a result of the incident, Appellants filed a complaint against

Appellee asserting claims for negligence and loss of consortium. Appellants

originally filed their complaint on July 16, 2016, but later dismissed the

complaint and refiled it on April 26, 2018. Appellee, Wal-Mart Stores, Inc.,

filed a motion for summary judgment on May 14, 2018, arguing the hazard

which led to Appellant’s injury was open and obvious, and thus Appellee

owed no duty of care to Appellant. Appellee alternatively argued that even

if a duty was owed, Appellants could not demonstrate it either created the

hazard, or had actual or constructive knowledge of the hazard, and thus

Appellants had failed to demonstrate the breach element of their negligence

claim.

         {¶4} Appellants filed a memorandum contra Appellee’s motion for

summary judgment, however, the trial court granted summary judgment in

favor of Appellee on July 20, 2018. The trial court’s judgment entry was

general in nature and did not explain or state the grounds for its decision.

Appellants now bring their timely appeal from the trial court’s judgment,

setting forth one assignment of error for our review.
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                        ASSIGNMENT OF ERROR

I.    “THE TRIAL COURT ERRED BY GRANTING SUMMARY
      JUDGMENT TO APPELLEE.”

                            LEGAL ANALYSIS

      {¶5} In their sole assignment of error, Appellants contend the trial

court erred by granting summary judgment to Appellee. Appellants further

contend the issue presented for review is whether their deposition testimony

and the applicable law establish a genuine issue of material fact such that the

trial court should have denied Appellee’s motion for summary judgment.

Appellee contends the trial court correctly granted summary judgment in its

favor, as the hazard at issue was open and obvious, and thus obviated the

duty of care owed by Appellees. Appellee alternatively argues that if this

Court finds a duty was in fact owed to Appellant, Shahin Smith, Appellants

failed to establish a breach of that duty when they failed to introduce

evidence indicating Appellee created the hazard or had actual or constructive

knowledge of the hazard. Thus, we begin our analysis with a review of the

appropriate standard of review when considering the grant or denial of a

motion for summary judgment, as well as the framework within which we

must consider the negligence argument raised by Appellants.
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                         STANDARD OF REVIEW

      {¶6} Appellate courts conduct a de novo review of trial court

summary judgment decisions. See, e.g., Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Accordingly, an appellate

court must independently review the record to determine if summary

judgment is appropriate and need not defer to the trial court's decision. See

Brown v. Scioto Bd. of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d

1153 (1993); Morehead v. Conley, 75 Ohio App.3d 409, 411–12, 599

N.E.2d 786 (1991). Thus, to determine whether a trial court properly

granted a summary judgment motion, an appellate court must review the

Civ. R. 56 summary judgment standard, as well as the applicable law.

      {¶7} Civ. R. 56(C) provides, in relevant part, as follows:

      "* * * Summary judgment shall be rendered forthwith if the

      pleadings, depositions, answers to interrogatories, written

      admissions, affidavits, transcripts of evidence in the pending

      case, 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
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      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."

      {¶8} Thus, pursuant to Civ.R. 56, a trial court may not award

summary judgment unless the evidence demonstrates 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) reasonable minds can come

to but one conclusion, and after 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. See, e.g., Vahila v. Hall,

77 Ohio St.3d 421, 429–30, 674 N.E.2d 1164 (1997).

                               NEGLIGENCE

      {¶9} A successful negligence action requires a plaintiff to establish

that: (1) the defendant owed the plaintiff a duty of care; (2) the defendant

breached the duty of care; and (3) as a direct and proximate result of the

defendant's breach, the plaintiff suffered injury. See, e.g., Texler v. D.O.
Ross App. No.
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Summers Cleaners, 81 Ohio St.3d 677, 680, 693 N.E.2d 271 (1998); Jeffers

v. Olexo, 43 Ohio St.3d 140, 142, 539 N.E.2d 614 (1989); Menifee v. Ohio

Welding Products, Inc., 15 Ohio St.3d 75, 472 N.E.2d 707 (1984). If a

defendant points to evidence to illustrate that the plaintiff will be unable to

prove any one of the foregoing elements, and if the plaintiff fails to respond

as Civ.R. 56 provides, the defendant is entitled to judgment as a matter of

law. See Lang v. Holly Hill Motel, Inc., 4th Dist. No. 06CA18, 2007–Ohio–

3898, ¶19, affirmed, 122 Ohio St.3d 120, 2009–Ohio–2495, 909 N.E.2d 120.

      {¶10} The existence of a defendant's duty is a threshold question in a

negligence case. See Armstrong v. Best Buy Company, Inc., 99 Ohio St.3d

79, 2003–Ohio–2573, 788 N.E.2d 1088, ¶13. In a premises liability case,

the relationship between the owner or occupier of the premises and the

injured party determines the duty owed. See, e.g., Gladon v. Greater

Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315, 662 N.E.2d 287

(1996); Shump v. First Continental–Robinwood Assocs., 71 Ohio St.3d 414,

417, 644 N.E.2d 291 (1994). In the case at bar, the parties do not dispute

that Appellant was a business invitee.

      {¶11} A business premises owner or occupier possesses the duty to

exercise ordinary care to maintain its premises in a reasonably safe

condition, such that business invitees will not unreasonably or unnecessarily
Ross App. No.
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                                                                                 8

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

203, 480 N.E.2d 474 (1985). A premises owner or occupier is not, however,

an insurer of its invitees' safety. Id. While the premises owner must warn

its invitees of latent or concealed dangers if the owner knows or has reason

to know of the hidden dangers, invitees are expected to take reasonable

precautions to avoid dangers that are patent or obvious. Jackson v. Kings

Island, 58 Ohio St.2d 357, 358, 390 N.E.2d 810 (1979); see also, Brinkman

v. Ross, 68 Ohio St.3d 82, 84, 623 N.E.2d 1175 (1993); Sidle v. Humphrey,

13 Ohio St.2d 45, 233 N.E.2d 589, paragraph one of the syllabus (1968).

      {¶12} Therefore, when a danger is open and obvious, a premises

owner owes no duty of care to individuals lawfully on the premises. See

Armstrong at ¶5; Sidle, paragraph one of the syllabus. By focusing on duty,

“the rule properly considers the nature of the dangerous condition itself, as

opposed to the nature of the plaintiff's conduct in encountering it.”

Armstrong at ¶13. The underlying rationale 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.” Id. at ¶5.

“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
Ross App. No.
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                                                                                9

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

from taking any further action to protect the plaintiff.” Id. at ¶13. Thus, the

open and obvious doctrine obviates the duty to warn and acts as a complete

bar to recovery. Id. at ¶5. Furthermore, the issue of whether a hazard is

open and obvious may be decided as a matter of law when no factual issues

are disputed. Nageotte v. Cafaro Co., 160 Ohio App.3d 702, 710, 2005–

Ohio 2098, 828 N.E.2d 683, ¶28; citing Armstrong.

                   THE OPEN AND OBVIOUS DOCTRINE

         {¶13} This Court has explained that "[t]he open and obvious doctrine

relates to the threshold question of whether the defendant possessed a duty."

Ray v. Wal-Mart Stores, Inc., 4th Dist. Washington No. 08CA41, 2009-

Ohio-4542, ¶21; citing Armstrong at ¶13; see also Frano v. Red Robin

Internatl. Inc., 181 Ohio App.3d 13, 2009-Ohio-685, 907 N.E.2d 796, ¶19.

"The open and obvious doctrine focuses on the nature of the hazard, not on

any party's particular conduct." Id. Accordingly, whether a defendant

created the dangerous condition becomes a relevant question only if a

plaintiff demonstrates that the defendant owed the plaintiff a duty of care.

Ray at     21.

         {¶14} Additionally, it is important to note that the determination as to

whether a particular danger is open and obvious does not revolve around a
Ross App. No.
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plaintiff's peculiar sensibilities or whether the plaintiff actually observed the

danger. Id. at ¶22; citing Armstrong at ¶13; Lang at ¶25. Instead, the

question is whether, under an objective standard, the danger would have

been discernible to a reasonable person. See Lang at ¶25. To the extent a

reasonable person would not have discerned the danger, then by definition,

that danger would not be open and obvious.

         {¶15} However, as explained in Ray, supra, "attendant circumstances

may create a genuine issue of material fact as to whether a danger is open

and obvious." Ray at ¶23; citing Lang at ¶24. This Court has explained as

follows regarding the attendant circumstances exception to the open and

obvious doctrine in slip and fall cases:2

         “ ‘Attendant circumstances' may also create a genuine issue of

         material fact as to whether a hazard is open and obvious. See

         Lang, at ¶24; Cummin v. Image Mart, Inc., Franklin App. No.

         03AP1284, 2004-Ohio-2840, at ¶8, citing McGuire v. Sears,

         Roebuck & Co. (1996), 118 Ohio App.3d 494, 498, 693 N.E.2d

         807. An attendant circumstance is a factor that contributes to

         the fall and is beyond the injured person's control. See Backus


2
  Although the case presently before us does not involve a slip and fall, we find the explanation of attendant
circumstances to be instructive.
Ross App. No.
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                                                                         11

      v. Giant Eagle, Inc. (1996), 115 Ohio App.3d 155, 158, 684

      N.E.2d 1273. 'The phrase refers to all circumstances

      surrounding the event, such as time and place, the environment

      or background of the event, and the conditions normally

      existing that would unreasonably increase the normal risk of a

      harmful result of the event.' Cummin, at ¶8, citing Cash v.

      Cincinnati (1981), 66 Ohio St.2d 319, 324, 421 N.E.2d 1275.

      An 'attendant circumstance' has also been defined to 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, 118

      Ohio App.3d at 499, 693 N.E.2d 807.

      Attendant circumstances do not include the individual's activity

      at the moment of the fall, unless the individual's attention was

      diverted by an unusual circumstance of the property owner's

      making. See McGuire, 118 Ohio App.3d at 498, 693 N.E.2d

      807. Moreover, an individual's particular sensibilities do not

      play a role in determining whether attendant circumstances

      make the individual unable to appreciate the open and obvious

      nature of the danger. As the court explained in Goode v. Mt.
Ross App. No.
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      Gillion Baptist Church, Cuyahoga App. No. 87876, 2006-Ohio-

      6936, at ¶25: 'The law uses an objective, not subjective,

      standard when determining whether a danger is open and

      obvious. The fact that appellant herself was unaware of the

      hazard is not dispositive of the issue. It is the objective,

      reasonable person that must find that the danger is not obvious

      or apparent.' Thus, we use an objective standard to determine

      whether the danger associated with the stairs was open and

      obvious. Furthermore, the question of whether a danger is open

      and obvious is highly fact-specific. Stanfield v. Amvets Post

      No. 88, Miami App. No. 06CA35, 2007-Ohio-1896, at ¶12;

      Henry v. Dollar General Store, Greene App. No.2002-CA-47,

      2006-Ohio-206, at ¶16." Ray at ¶30-31.

As this Court noted in Ray at ¶32, the question of whether particular dangers

are open and obvious is a highly-litigated question and the cases are

generally very fact specific.

                                APPLICATION

      {¶16} Appellee cites several slip and fall cases in support of its

argument that the hazard at issue herein, a sharp piece of plastic located

either directly on or just below a produce bin, was an open and obvious
Ross App. No.
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hazard. Appellants argue the reasoning set forth in slip and fall cases is not

applicable to the particular hazard at issue herein. However, this Court has

been unable to locate another case in Ohio involving the exact type of hazard

at issue presently before us. Thus, we look to other cases that are similar, at

best, for guidance and instruction as to whether this particular hazard was

open and obvious.

      {¶17} Lambert v. Sack ‘N Save, Inc., 4th Dist. Ross No. 12CA3319,

2012-Ohio-4686, involved a customer who sustained an injury to her arm

after hitting it on a shopping cart. Lambert at ¶2. Lambert filed a

negligence claim alleging she was injured as a result of the design of the

shopping cart, which had vertical metal bars on the outside of the cart, with

sharp edges. Id. at ¶11. Lambert, in contrast with Appellants herein, did not

allege the cart was damaged in any way resulting in an unsafe condition. Id.

In that case, we affirmed the trial court's grant of summary judgment in

favor of the grocery store, reasoning in part on the fact that Lambert had

used the cart for twenty minutes prior to injuring herself and had been able

to observe the condition of the cart, "which design was readily observable."

Id. at ¶12. As such, we determined the hazard leading to Lambert's injury

was open and obvious.
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         {¶18} In Ray, supra, a customer fell and was injured after she tripped

on a produce crate that partially protruded from beneath a produce display

table. Ray at ¶3. Based in part upon Ray's testimony "that she was not

certain whether she would have seen them [the produce crate] had she

looked" before falling, this Court held a genuine issue of material fact

existed as to whether or not the hazard was open and obvious. Id. at ¶41.

Again, our holding was limited to the specific facts of that case.

         {¶19} Here, the only evidentiary materials in the record for this

Court’s review are the pleadings and the deposition transcripts of both

Shahin and Steven Smith. There are no exhibits, photographs or video

footage in the record. In their depositions, Appellants both testified that the

sharp, clear plastic piece protruding from the produce bin (or just below the

produce bin)3 was observable prior to the incident resulting in injury to

Shahin Smith. For example, Shahin Smith testified as follows during her

deposition:

         “Q:      Where were you looking when you felt contact with your

                  skin? Where were you looking?

         A:       I was trying to reach to get the tomato.


3
  Steven Smith testified that the sharp plastic piece that inflicted Shahin’s injury was actually part of the
plastic piece located just below the bin where the price is displayed.
Ross App. No.
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                                                                             15

      Q:        So you were – is it fair to say you were looking at the

                tomatoes?

      A:        Yes. I was aiming to grab the tomatoes.

      Q:        Did you ever look down to see what caused that pain in

                your leg afterwards?

      A:        Afterwards. Okay. Well, yeah. It was so shock. Just

                like somebody comes from your back and stabs you, you

                know? You just say what was that. I mean, like – like a

                shock. It was just (indicating) because I did it with such

                a – stretch, a push (indicating). Probably I pushed on

                there, too, and I didn’t realize.

      Q:        So did you look down to see what caused –

      A:        Yeah. After that, yes.

      ***

      Q:        So the basket was visible afterwards?

      A:        Yeah, because they had stuff in it, I think.

      Q:        You could see the basket?

      A:        Later on I saw it.

      ***
Ross App. No.
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      Q:        Do you think if, before any of all this happened, if you

                had been looking down at the basket with what you call

                the sharp side you would have been able to see it?

      A:        Yes. Say it again one more time.

      Q:        Sure. Do you think if before all of this happened, if you

                had been looking down at the basket, you would have

                been able to see the sharp side?

      A:        I would have. See, when I work in the hospital, you

                always look for those things, you know. And I report

                that all the time.”

Thus, Shahin Smith unequivocally testified that she would have seen the

hazard had she been looking for it, but that she was looking up instead,

toward the tomatoes, when she reached in to grab one, leaning into the sharp

object as she grabbed a tomato.

      {¶20} Further, when asked if a Walmart employee would have seen

the hazard if they had been looking Mrs. Smith testified that she was not

sure, explaining as follows:

      “I’m not so sure because it was like hidden type. It was hard to

      see. It was hard to see. I would have seen it because I think

      maybe plastic, black, sometimes – it was not obvious unless
Ross App. No.
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      you pay attention. * * * As I think we said, after, when I got hit,

      when I looked, then I noticed it. Before hit, it was hard to see

      because you have attention on other places.”

Thus, Mrs. Smith essentially testified that although the hazard may

have been hard to see, she would have seen it, and that it was obvious

if one was paying attention.

      {¶21} Additionally, with regard to the question of attendant

circumstances, Mrs. Smith testified as follows:

      “Q:       Was there anything blocking, afterwards – I understand

      you’re not certain if you saw it beforehand, but afterwards

      when you saw it, was there anything blocking your view of it

      such as a cloth?

      A:        Such as?

      Q:        A cloth? Like a tablecloth or tarp?

      A:        No.

      Q:        Was there anything that was blocking your view of the

      basket afterwards when you looked down?

      A:        Because it was in the lower level, the attention was up.
Ross App. No.
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      Q:        That wasn’t my question. My question was afterwards

      when you looked down, was there anything blocking your

      view?

      A:        No.

      Q:        Was the store well lit?

      A:        Yes.

      ***

      Q:        Were you carrying anything at the time?

      A:        My purse probably. Sometimes I just put – I don’t take

      my purse. I just put cards in my pocket. It’s easier.

      Q:        What about any merchandise? Were you carrying any

      merchandise at the time?

      A:        No.

      Q:        Were you pushing a shopping cart?

      A:        I don’t think so.

      Q:        And you were facing forward because you were reaching

      for the tomatoes?

      A:        Yes.”
Ross App. No.
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Thus, based upon the foregoing testimony, it does not appear there were any

attendant circumstances that played a role in Appellant sustaining an injury

while leaning in to grab a tomato from the produce bin.

      {¶22} Appellant’s husband, Steven Smith, was with her the day she

was injured and witnessed the incident. Mr. Smith testified as follows:

      “Q:       Did you ever go over to the area where she was injured?

      A:        Yes. I was there with her. I was pushing the cart.

      Q:        You were pushing the cart? The piece of plastic which

      hit your wife’s right leg was visible?

      A:        Yes. I could see it. I mean, well, it was kind of hard to

      see because it was clear, but I saw it after she pointed it out to

      me. I didn’t see it before when we were walking up on it.

      Q:        So I understand that you weren’t able to see it – you

      didn’t see it beforehand?

      A:        Right. I saw it after – after she ran into it.

      Q:        Do you know if your wife saw the piece of plastic

      afterwards?

      A:        Yeah. She saw it and I saw it, and the two Wal-Mart

      employees saw it, too. The gentleman took photos of it.

      Q:        Was the store well lit?
Ross App. No.
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      A:        Yes.”

As such, Mr. Smith’s testimony demonstrated the plastic piece protruding

from the produce bin was observable and was observed after the incident

occurred. It just wasn’t observed by either him or his wife prior to the

incident.

      {¶23} As set forth above, the focus of the open and obvious condition

doctrine is not based upon a plaintiff's conduct. “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.” Armstrong at 82. Thus,

the fact that Appellants did not observe the sharp piece of plastic protruding

from the produce bin until after the incident occurred does not mean that it

was not observable. In fact, as testified to by both Appellants, had they been

looking, or paying attention, they would have seen the hazard beforehand.

      {¶24} Based upon these facts, we conclude no genuine issue of

material facts exists regarding whether the hazard at issue was open and

obvious and, as a result, we further conclude Appellee was absolved from

taking any further action to warn Appellants. Further, as set forth above, the

open and obvious doctrine not only obviates the duty to warn, it acts as a

complete bar to recovery. As a result, the question of whether Appellee

created the dangerous condition is not relevant, as Appellants have not
Ross App. No.
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demonstrated Appellee owed them a duty of care. Thus, we do not reach the

additional arguments as to whether Appellant created the hazard or had

actual or constructive knowledge of the hazard. Further, Appellants concede

the success of their loss of consortium claims rests on the viability of their

negligence claim. Having found the trial court correctly granted Appellee

summary judgment on the negligence claim, the trial court’s grant of

summary judgment in favor of Appellee on the loss of consortium claim was

also proper.

      {¶25} Accordingly, having found no merit to the sole assignment of

error raised by Appellants, the judgment of the trial court is affirmed.

                                               JUDGMENT AFFIRMED
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                           JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Ross County Common Pleas 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.

      Abele, J., & Hess, J.: Concur in Judgment and Opinion.

                                For the Court,

                          BY: __________________________________
                              Jason P. Smith, Presiding Judge




                         NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
