[Cite as Strevel v. Fresh Encounter, Inc., 2015-Ohio-5004.]


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

ICY STREVEL,                    :
                                :   Case No. 15CA5
     Plaintiff-Appellant,       :
                                :
     vs.                        :   DECISION AND JUDGMENT
                                :   ENTRY
FRESH ENCOUNTER, INC.,          :
                                :
    Defendant-Appellee.         :   Released: 11/24/15
_____________________________________________________________
                          APPEARANCES:

Conrad A. Curren, Greenfield, Ohio, for Appellant.

Thomas J. Gruber and Michael P. Cussen, McCaslin, Imbus & McCaslin,
Cincinnati, Ohio, for Appellee.
_____________________________________________________________

McFarland, A.J.

        {¶1} Appellant, Icy Strevel, appeals the February 20, 2015 entry of

the Highland County Court of Common Pleas, granting summary judgment

to Appellee Fresh Encounters, Inc. Having reviewed the record and the

pertinent law, we affirm the judgment of the trial court.

                                              FACTS

        {¶2} This lawsuit arises subsequent to an incident which occurred on

July 22, 2012 on the premises of the Community Market in Greenfield,

Ohio. Community Market is a local food market owned by Fresh
Highland App. No. 15CA5                                                         2

Encounters, Inc. On that date, Strevel stepped into a pothole and fell to the

ground. She subsequently claimed personal injuries and medical expenses.

      {¶3} On June 18, 2014, Appellant filed suit against Fresh Encounters,

Inc. dba Community Market. Appellee filed a timely answer. Appellant’s

deposition was taken on October 30, 2014. On December 10, 2014,

Appellee filed a motion for summary judgment. Appellant filed a

memorandum contra defendant’s motion for summary judgment on

December 29, 2014. Appellee also filed a reply on January 7, 2015.

      {¶4} On February 20, 2015, the trial court filed a decision granting

Appellee’s motion for summary judgment and final judgment entry. This

timely appeal followed. Where relevant, portions of Appellant’s deposition

testimony will be cited below.

                        ASSIGNMENT OF ERROR

I.    “THE TRIAL COURT ERRED TO THE DETRIMENT OF THE
      PLAINTIFF/APPELLANT IN GRANTING SUMMARY
      JUDGMENT TO THE DEFENDANT WHEN GENUINE ISSUES
      OF MATERIAL FACTS EXISTED.”

                       A. STANDARD OF REVIEW

       {¶5} Initially, we note that appellate courts conduct a de novo review

of trial court summary judgment decisions. See, 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
Highland App. No. 15CA5                                                          3

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 (4th Dist. 1993); Morehead v. Conley, 75 Ohio App.3d 409, 411-12,

599 N.E.2d 786 (4th Dist. 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.

       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 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.
Highland App. No. 15CA5                                                          4

      {¶6} 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, Vahila v. Hall, 77 Ohio St.3d

421, 429-30, 674 N.E.2d 1164 (1997).

                           B. LEGAL ANALYSIS

                                1. Negligence

      {¶7} Before we address the specific arguments raised by Appellant’s

assignment of error, we note that Appellant’s action is based on a claim of

negligence. The trial court’s decision found that Appellant was a business

invitee of Appellee, who as owner of the premises had the duty to maintain

its business premises in a reasonably safe condition. We begin by reviewing

the general Ohio law on negligence and premises liability.

       {¶8} 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, Texler v. D.O. Summers
Highland App. No. 15CA5                                                           5

Cleaners, 81 Ohio St.3d 677, 680, 693 N.E.2d 217 (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. Jackson No. 06CA18, 2007-Ohio-

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

120.

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

negligence case. See, Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79,

2003-Ohio-2573, 788 N.E.2d 1088, at ¶ 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, 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). Ohio law recognizes three distinct classes: trespassers,

licensees, and invitees. Geog v. Jeffers, 4th Dist. Athens No. 94CA1613,

1994 WL 704529, *2.
Highland App. No. 15CA5                                                            6

      {¶10} “It is generally held that the occupier of premises, who invites

another to enter upon the premises, for some purpose of interest or

advantage to such occupier, owes to the person so invited a duty to use

ordinary care to have his premises in a reasonably safe condition for use in a

manner consistent with the purpose of that invitation. 38 American

Jurisprudence, 754, Section 96. The reason for imposing this duty, with

respect to invitees and not with respect to licensees or trespassers, is that the

invitee is on the premises for a purpose of interest or advantage to the

occupier.” Id. Lampe v. Magoulakis, 159 Ohio St. 72, 111 N.E.2d 7 (1953).

The economic or tangible benefit test has long been recognized by Ohio

courts in order to distinguish the status of an invitee from that of a licensee.

Id. Provencher v. Ohio Dept. of Transp., 49 Ohio St.3d 265, 266, 551

N.E.2d 125 (1990).

      {¶11} The trial court correctly determined that Appellant was a

business invitee on the premises of the grocery store for the purposes of

shopping, which is an advantage to Appellee. A premises owner 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 be exposed to danger. Paschal v. Rite Aid Pharmacy, Inc., 18

Ohio St.3d 203, 203, 480 N.E.2d 474 (1985). As a business invitee,
Highland App. No. 15CA5                                                            7

Appellant was owed the duty to maintain the premises in a reasonably safe

condition.

                     2. The “Open and Obvious” Doctrine

      {¶12} 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, see, Jackson v. Kings Island, 58 Ohio St.2d 357, 358, 390

N.E.2d 810 (1979), invitees are expected to take reasonable precautions to

avoid dangers that are patent or obvious. See, 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, (1968) paragraph one of the syllabus.

      {¶13} 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.
Highland App. No. 15CA5                                                            8

“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

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 (6th Dist.) at ¶ 28, citing Armstrong.

      {¶14} Here Appellant testified she had driven to the Community

Market with a friend to pick up a pizza. She parked about 8 spaces away

from the store’s entrance. Appellant was aware that there were holes “all

around” the parking lot, due to her prior experience shopping there. She and

her friend shopped separately and proceeded to get into the car to leave.

Appellant specifically testified as follows:

      “Hazel got in and she was getting in and I opened up the door
      and then I wanted to put mine in the back part. And I opened
      up the back door and when I had to step back that’s when I
      fell.”

      ***

      “Yeah, and I was going to get in and I thought I would put my
      things in the back so I stepped back there. I didn’t look behind
      me, you know.”
Highland App. No. 15CA5                                                         9


      ***

      “When I was going to - - - well, I stepped back a little bit, you
      know, and I put the things in there and then I had to step back
      more to shut the door * * * And my heels on my shoes went,
      you know, in the hole.”

      {¶15} Appellant testified she stepped back with both feet. When she

fell, she fell on her buttocks and hit her head and her back. Appellant

specifically testified she had never seen the hole before she fell, but she saw

it afterwards. She described it as “big” and “four or five inches deep.”

      {¶16} “To establish negligence in a slip and fall case, it is incumbent

upon the plaintiff to identify or explain the reason for the fall.” Lang, supra,

at ¶ 17, quoting Stamper v. Middletown Hosp. Assn., 65 Ohio App.3d 65, 67-

68, 582 N.E.2d 1040 (12th Dist. 1989) (internal citations omitted). The trial

court concluded that the hole in the parking lot was open and obvious.

While Appellant did not admit knowledge of this particular hole, she was

aware of the existence of other holes in the lot and this knowledge placed

her on notice of the possible dangers in the lot. The trial court pointed out

Appellant failed to look and discover the hole prior to her fall. However,

Appellant argues not every obstacle that can be seen meets the open and

obvious criteria.
Highland App. No. 15CA5                                                      10

                        3. “Attendant Circumstances”

      {¶17} “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., 10th Dist. Franklin No. 03AP1284, 2004-

Ohio-2840, at ¶ 8, citing McGuire v. Sears, Roebuck & Co., 118 Ohio

App.3d 494, 498, 693 N.E.2d 807 (1st Dist. 1996). An attendant

circumstance is a factor that contributes to the fall and is beyond the injured

person's control. See, Backus v. Giant Eagle, Inc., 115 Ohio App.3d 155,

158, 684 N.E.2d 1273 (7th Dist. 1996). “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, 66 Ohio St.2d 319,

324, 421 N.E.2d 1275 (1981). 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.

      {¶18} Attendant circumstances do not include the individual's activity

at the moment of the fall, unless the individual's attention was diverted by an
Highland App. No. 15CA5                                                      11

unusual circumstance of the property owner's making. See, Id. 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. Gillion Baptist Church, 8th Dist. Cuyahoga 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 condition 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, 2nd Dist. Miami No. 06CA35,

2007-Ohio-1896, at ¶ 12; Henry v. Dollar General Store, 2nd Dist. Butler

No. 2002CA47, 2006-Ohio-206, at ¶ 16.

       {¶19} Appellant directs us to Walters v. Eaton, 12th Dist. Preble No.

CA200106012, 2002-Ohio-1338, wherein the appellate court held that a fact

issue existed as to whether attendant circumstances enhanced the danger of a

manhole cover with a gap in a cross walk, even though the Plaintiff admitted

that she was not looking down as she crossed the street. In Walters, supra,
Highland App. No. 15CA5                                                        12

Linda Walters was with her family in the city of Eaton, crossing a

designated crosswalk, when her foot was caught in a gap between a manhole

cover and asphalt, causing her to fall. She sustained injuries and eventually

filed a negligence suit. The testimony in the case was that traffic was

usually heavy in the area, the crosswalk was marked but not protected with a

traffic signal, and drivers did not always stop for pedestrians. Walters

testified she was not looking down as she walked because she had to watch

for traffic. She testified she was aware of the manhole, but not aware of the

gap.

       {¶20} The 12th District Court of Appeals held, construing the facts of

the case in the light most favorable to Walters, reasonable minds could

conclude that attendant circumstances significantly enhanced the defect's

danger and contributed to Walters’ fall. The court noted that Walters was

not looking down at the pavement of the street as she crossed the crosswalk

because she was concerned with approaching traffic. The crosswalk,

although marked by a pedestrian sign, did not have traffic lights to protect

crossing pedestrians from oncoming vehicles. There was testimony that

motorists did not always stop for pedestrians in the crosswalk, despite the

traffic sign. In fact, Walters testified that the traffic continued driving around

her after she fell. The supervisor of street maintenance for the city
Highland App. No. 15CA5                                                        13

confirmed that the streets that intersect near the crosswalk are probably the

two most frequently traveled streets in Eaton. The supervisor, in his

testimony, admitted that the manhole in its condition could be a roadway

hazard for pedestrian traffic using the crosswalk.

      {¶21} Appellant specifically asserts her case mirrors the facts in the

recent decision of Gibson v. Dairy Mart, 11th Dist. Lake Nos. 2014-L-041,

2014-L-043, 2014-Ohio-4542. Appellant contends, as in Gibson, she did not

see the hole when she exited her car, nor did she see it when she stepped

backwards one step to close her door. In Gibson, the plaintiff went to the

Dairy Mart to buy lottery tickets. She had been on the parking lot of the

Dairy Mart approximately 10 times before. However, she parked in an

unfamiliar area of the lot. No cars obstructed her view of the ground below.

When she exited her vehicle, she stepped into a one to two-inch deep

pothole, fell, and landed on her wrist. She incurred medical expenses due to

two subsequent surgeries. Gibson later argued her open car door obstructed

her view of the pothole.

      {¶22} The Gibson court acknowledged, notwithstanding, the objective

nature of the inquiry, the question of whether a danger is open and obvious

is not always a question that can be decided as a matter of law simply

because it may be visible. Furano v. Sunrise Inn of Warren, Inc., 11th Dist.
Highland App. No. 15CA5                                                        14

Trumbull No. 2008-T-0132, 2009-Ohio-3150, ¶ 23, citing Hudspath, v.

Cafaro, Co.,11th Dist. Ashtabula No.2004-A-0073, 2005-Ohio-6911, ¶ 22.

To the contrary, the “attendant circumstances” of a fall may create a material

issue of fact regarding whether the danger was open and obvious. Id.

Attendant circumstances involve all facts relating to the fall, such as “the

condition of the sidewalk as a whole, the volume of pedestrian traffic, the

visibility of the defect, and whether the accident site was such that one's

attention could easily be diverted.” Armstrong v. Meade, 6th Dist. Lucas No.

L-06-1322, 2007-Ohio-2820, ¶ 14. In effect, therefore, attendant

circumstances include distractions that divert an ordinary person's attention

and provide a justifiable reason for the failure to perceive the otherwise open

and obvious peril. Hudspath, supra, ¶ 19.

      {¶23} In Gibson, the majority opinion held the only question was

whether an obstruction of the pothole due to the car door constitutes an

attendant circumstance preventing the application of the open and obvious

doctrine as a matter of law. In finding that no attendant circumstances

existed, the trial court determined that attendant circumstances cannot

include an individual's activity at the moment of the fall, unless the

individual's attention was diverted by a circumstance beyond the control of

the injured party. See, Collier v. Libations Lounge, LLC, 8th Dist. Cuyahoga
Highland App. No. 15CA5                                                         15

No. 97504, 2012-Ohio-2390, ¶ 17. In support of her appeal, Gibson directed

the court’s attention to Jacobsen v. Coon Restoration & Sealants, Inc., 5th

Dist. Stark No. 2011-CA-00001, 2011-Ohio-3563, where the Fifth District

found that carrying a pizza box across a pizza shop's parking lot could

constitute an attendant circumstance for tripping over a broken metal sign

post.

        {¶24} The Gibson court disagreed with the trial court's determination

that a plaintiff's “individual activity” generally cannot create an attendant

circumstance and therefore found a question of fact existed as to whether the

pothole was an open and obvious condition. The Gibson court recognized its

view was in significant disagreement with several other district courts. See,

Collier, supra; Ray v. Wal-Mart Stores, Inc., 4th Dist. Washington No.

08CA41, 2009-Ohio-4542, ¶ 31; Alsbury v. Dover Chem. Corp., 5th Dist.

Tuscarawas No. 2008 AP 10 0068, 2009-Ohio-3831; McConnell v.

Margello, 10th Dist. Franklin No. 06AP-1235, 2007-Ohio-4860, ¶ 17.

        {¶25} However, in Gibson, Judge Rice dissented. Writing separately,

she stated: “The majority concedes that several other Ohio Appellate

Districts disagree with its holding. These districts uniformly hold that

attendant circumstances do not include the plaintiff's activity at the moment

of the fall, unless the plaintiff’s attention was diverted by: (1) an unusual
Highland App. No. 15CA5                                                       16

circumstance, (2) of the property owner's making, (3) which is beyond the

control of the plaintiff. Ray, supra, at ¶ 31 (Fourth District); Alsbury, supra,

at ¶ 60 (Fifth District); Collier, supra, at ¶ 17 (Eighth District); McConnell,

supra, at ¶ 17 (Tenth District). Further, these holdings are consistent with, if

not dictated by, Armstrong v. Best Buy, 99 Ohio St.3d 79, 2003-Ohio-2573,

788 N.E.2d 1088, the controlling law in this area. In Armstrong, the

Supreme Court of Ohio held:

      “We continue to adhere to the open-and-obvious doctrine today.
      In reaching this conclusion, we reiterate that when courts apply
      the rule, they must focus on the fact that the doctrine relates to
      the threshold issue of duty. By focusing on the duty prong of
      negligence, the rule properly considers the nature of the
      dangerous condition itself, as opposed to the nature of the
      plaintiff's conduct in encountering it. 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
      fact that the condition itself is so obvious that it absolves the
      property owner from taking any further action to protect the
      plaintiff. * * * Even under the Restatement [of the Law 2d,
      Torts, Section 343A] view [finding liability when the
      landowner should have anticipated harm caused by obvious
      dangers], we believe the focus is misdirected because it does
      not acknowledge that the condition itself is obviously
      hazardous and that, as a result, no liability is imposed.
      (Emphasis added.) Id. at ¶ 13.”

      {¶26} Judge Rice concluded:

      “The Supreme Court in Armstrong thus criticized Restatement
      of the Law 2d, Torts, Section 343A, and expressly declined to
      follow cases that have adopted it. Armstrong at ¶ 10.
      Consequently, I cannot concur with the majority's reliance on
Highland App. No. 15CA5                                                          17

      that section of the Restatement and out-of-state cases that have
      followed it to support its holding. Id. at 36.

      ***

      Moreover, this court's prior, well-reasoned holding in Furano,
      supra, bars a plaintiff from recovering where the difficulty
      alleged to be an attendant circumstance was created by the
      plaintiff and solely within his control.” Id. at 37.

      {¶27} Here, Appellee begins by acknowledging the case law

regarding “attendant circumstances” and Appellee responds that in this case,

there is no evidence in the record to indicate the pothole in question was

anything but an open and obvious condition. Appellee points out Appellant

testified: (1) she was aware of the existence of potholes in the parking lot,

(2) she was fully able to describe the pothole in her deposition and was able

to identify it in a photograph, (3) did not testify the pothole was hidden or

obstructed, and (4) testified that her eyesight did not prevent her ability to

see the pothole. We agree with the trial court’s finding that Appellant’s

claim is barred by the application of the open and obvious doctrine. Plaintiff

chose to put the groceries in the back seat and back up without first looking

to see if there was any danger. We will continue to adhere to the well-

established case law that attendant circumstances require the circumstance to

be beyond the control of the person.
Highland App. No. 15CA5                                                       18

      {¶28} Finally, Appellant argues that she was distracted by “putting

her groceries in the car and perhaps by traffic in the parking lot as well.” As

such, the act of simply being forced to take a step backward because of the

setup of the parking lot is an attendant circumstance.

      {¶29} Again, Appellee points out the facts argued by Appellant

regarding alleged attendant circumstances are not supported by evidence

before the trial court or this court. Appellee argues that at no time did

Appellant testify that she was distracted by any attendant circumstances,

such as the act of putting her groceries in the car, barking dogs, arguing

pedestrians, or delivery trucks moving through the lot. Upon review of

Appellant’s deposition testimony, we affirm the finding of the trial court that

there was no evidence of attendant circumstances.

                         4. Contributory Negligence

      {¶30} Having affirmed the trial court’s previous findings, it would be

sufficient to end our analysis here. However, Appellant also argues that

Appellee suggests Appellant assumed the risk of parking in the lot and

avoiding the holes, and that Appellant should have seen the particular hole

and avoided it. Appellant argues this negates any care Appellee owed

Appellant or any other customer. Appellant argues this raises issues of
Highland App. No. 15CA5                                                        19

assumption of the risk and contributory negligence, requiring a jury to weigh

factual matters.

      {¶31} Appellee asserts that it did not raise the above issues. Appellee

points out that the open and obvious doctrine is a legal doctrine that nullifies

the premises owner’s duty to warn invitees of an alleged danger. The open

and obvious doctrine does not raise issues of contributory negligence and

assumption of the risk. Appellee recites the correct analysis in any slip and

fall case begins with the designation of whether a plaintiff was a trespasser,

invitee, or licensee and involves a determination of the duty owed. We also

reiterate that, “[S]imply because resolution of a question of law involves a

consideration of the evidence does not mean that the question of law is

converted into a question of fact or that a factual issue is raised.” Nelson v.

Sound Health Alternatives Intern. Inc., 4th Dist. Athens No. 01CA24, 2001

WL 1085298, *4, quoting Ruta v. Breckenridge-Remy Co., 69 Ohio St.2d

66, 68, 430 N.E.2d 935, 937 (1982). As stated in O'Day v. Webb, 29 Ohio

St.2d 215, 219, 280 N.E.2d 896, 899 (1972): “[A] review of the evidence is

more often than not vital to the resolution of a question of law. But the fact

that a question of law involves a consideration of the facts or the evidence

does not turn it into a question of fact.” See, also, Henley v. Younstown Bd.

Zoning Appeals, 90 Ohio St.3d 142, 148, 735 N .E.2d 433, 439 (2000).
Highland App. No. 15CA5                                                     20

Upon our de novo review of the facts and circumstances, we find that there

were no genuine issues of material fact and Appellee is entitled to summary

judgment as a matter of law. For the foregoing reasons, we overrule

Appellant’s sole assignment of error and affirm the judgment of the trial

court.

                                               JUDGMENT AFFIRMED.
Highland App. No. 15CA5                                                  21


Harsha, J., concurring in judgment only:

      {¶32} Because I believe that duty is always and solely a question of

law for the court to decide, I concur in judgment only.
Highland App. No. 15CA5                                                        22


                           JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of Appellant any costs herein.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Highland County Common Pleas Court to carry this judgment into
execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Abele, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Judgment Only with Opinion.



                                       For the Court,


                                 BY: _____________________________
                                     Matthew W. McFarland,
                                     Administrative 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.
