[Cite as Dunway v. Sidney, 2012-Ohio-4518.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SHELBY COUNTY


JANET D. DUNAWAY, ET AL.,

        PLAINTIFFS-APPELLANTS/
        CROSS-APPELLEES,
                                                        CASE NO. 17-12-04
        v.

CITY OF SIDNEY,

        DEFENDANT-APPELLEE/
        CROSS-APPELLANT,
        -and-

UNITED STATES DEPARTMENT OF                             OPINION
HEALTH AND HUMAN SERVICES,

        DEFENDANT-APPELLEE/
        CROSS-APPELLEE.



                 Appeal from Shelby County Common Pleas Court
                           Trial Court No. 11CV000147

                                    Judgment Affirmed

                           Date of Decision: October 1, 2012



APPEARANCES:

        Timothy S. Sell for Appellant/Cross-Appellee

        Joshua R. Schierloh for Appellee/Cross-Appellant
Case No. 17-12-04



SHAW, P.J.

       {¶1} Plaintiffs-appellants, Janet and Bruce Dunaway (collectively referred

to as the “Dunaways”), appeal the January 24, 2012 order of the Shelby County

Court of Common Pleas certifying under Civ.R. 54(B) its November 28, 2011

judgment granting summary judgment in favor of defendant-appellee, City of

Sidney (the “City”) and finding that there is no genuine issue of material fact as to

the open and obvious condition of the steps located at the entrance to City Hall

where Janet fell and sustained injuries. The trial court also concluded that there

remained a genuine issue of material fact as to whether the City is entitled to

immunity under R.C. 2744.02.        However, the trial court determined that its

conclusion regarding the open and obvious nature of the steps was dispositive of

the case and granted summary judgment on this basis.

       {¶2} On June 23, 2008, Janet arrived at City Hall for the purpose of closing

a utility account associated with a home she had recently sold. Upon her arrival at

City Hall, Janet noticed a sign indicating the entrance to the building had been

moved to a new location.      Janet followed the arrow posted on the sign and

approached the newly renovated building entrance. Janet failed to see the steps

descending to the entrance and fell severely injuring her left elbow. Several

screws and metal plates were placed in Janet’s arm as a result of the injury. Janet



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completed some physical therapy, but the pain and her range of motion in the

injured arm did not improve.

       {¶3} On March 31, 2011, Janet filed a complaint for money damages

against the City claiming the City had notice of the defective design and

maintenance of the steps, and that the City’s negligence was the proximate cause

of her injuries.    Janet’s husband, Bruce, was included as a plaintiff in the

complaint on a loss of companionship and consortium claim.

       {¶4} On April 13, 2011, the City filed an answer asserting several defenses

including that it is immune from liability under R.C. 2744.01 et seq. as a political

subdivision.

       {¶5} During the course of discovery, four witnesses were deposed, Janet

and Bruce, Thomas Judy, the Assistant City Manager for the City, and Kirby

King, an engineering technician for the City at the time of the incident.

       {¶6} On April 27, 2011, the City filed a motion for summary judgment

arguing the Dunaways’ claims are barred by its immunity under R.C. 2744.02 and

the open and obvious doctrine. After several extensions of time, the Dunaways

filed a memorandum contra to the City’s motion for summary judgment.

       {¶7} On November 28, 2011, the trial court granted the City’s motion for

summary judgment on the basis that there is no genuine issue of material fact that

the open and obvious doctrine barred the Dunaways’ claims against the City.


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However, the trial court also determined that there still existed a genuine issue of

material fact regarding whether the City is entitled to immunity under R.C.

2744.02, but that its ruling on the open and obvious doctrine was dispositive of the

case.

         {¶8} The Dunaways filed this appeal asserting the following assignment of

error.

                   DUNAWAYS’ ASSIGNMENT OF ERROR

         THE TRIAL COURT ERRED IN GRANTING SUMMARY
         JUDGMENT WHEN GENUINE ISSUES OF MATERIAL
         FACT EXIST AS TO WHETHER THE DEFECT WHICH
         CAUSED APPELLANT’S INJURY WAS OPEN AND
         OBVIOUS.

         {¶9} The City filed a cross-appeal asserting the following assignment of

error.

                    THE CITY’S ASSIGNMENT OF ERROR

         THE TRIAL COURT ERRED BY DENYING THE CITY
         IMMUNITY UNDER R.C. § 2744.01 ET SEQ.

                          Dunaways’ Assignment of Error

         {¶10} In their sole assignment of error, the Dunaways argue that the trial

court erred in granting the City’s motion for summary judgment because there is a

genuine issue of material fact as to whether the steps where Janet fell were an

open and obvious condition. The Dunaways further argue that even if the steps



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were an open and obvious condition, there were attendant circumstances present at

the time of Janet’s fall, which obviated the open and obvious nature of the steps.

       {¶11} Initially, we note that an appellate court reviews a grant of summary

judgment de novo, without any deference to the trial court. Conley–Slowinski v.

Superior Spinning & Stamping Co., 128 Ohio App.3d 360, 363 (1998). A grant of

summary judgment will be affirmed only when the requirements of Civ.R. 56(C)

are met. This requires the moving party to establish: (1) that there are no genuine

issues of material fact, (2) that the moving party is entitled to judgment as a matter

of law, and (3) that reasonable minds can come to but one conclusion and that

conclusion is adverse to the non-moving party, said party being entitled to have

the evidence construed most strongly in his favor. Civ.R. 56(C); see Horton v.

Harwick Chem. Corp., 73 Ohio St.3d 679, 1995-Ohio-286, paragraph three of the

syllabus.

       {¶12} The party moving for summary judgment bears the initial burden of

identifying the basis for its motion in order to allow the opposing party a

“meaningful opportunity to respond.” Mitseff v. Wheeler, 38 Ohio St.3d 112,

syllabus (1988). The moving party also bears the burden of demonstrating the

absence of a genuine issue of material fact as to an essential element of the case.

Dresher v. Burt, 75 Ohio St.3d 280, 292, 1996-Ohio-107. Once the moving party

demonstrates that he is entitled to summary judgment, the burden shifts to the non-


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Case No. 17-12-04


moving party to produce evidence on any issue which that party bears the burden

of production at trial. See Civ.R. 56(E).

       {¶13} To prevail in a negligence action, a plaintiff must demonstrate that:

(1) the defendant owed a duty of care to the plaintiff, (2) the defendant breached

that duty, and (3) the defendant’s breach proximately caused the plaintiff to be

injured. Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009–Ohio–2495, at ¶

10, citations omitted.    The applicable duty is determined by the relationship

between the landowner and the plaintiff when the alleged negligence occurs in a

premises-liability context.   Id., citing Gladon v. Greater Cleveland Regional

Transit Auth., 75 Ohio St.3d 312, 315, 1996–Ohio–137.

       {¶14} Generally, a premises owner owes a duty of ordinary care to invitees

in maintaining the premises in a reasonably safe condition and has the duty to

warn invitees of latent or hidden dangers. Armstrong v. Best Buy Co., Inc., 99

Ohio St.3d 79, 2003-Ohio-2573, at ¶ 5, citing Paschal v. Rite Aid Pharmacy, Inc.,

18 Ohio St.3d 203 (1985). In a premises-liability action, the plaintiff can prove

the defendant’s breach of duty if any one of three conditions is satisfied:

       (1) the defendant, through its officers or employees, was
       responsible for the hazard complained of; (2) at least one of such
       persons had actual knowledge of the hazard and neglected to
       give adequate notice of its presence or to remove it promptly; or
       (2) such danger existed for a sufficient length of time
       reasonably to justify the inference that the failure to warn
       against it or remove it was attributable to a want of ordinary
       care.

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Gouhin v. Giant Eagle, 10th Dist. No. 07AP548, 2008–Ohio–766, at ¶ 8, citing,

Sharp v. Anderson’s, Inc., 10th Dist. No. 06AP81, 2006–Ohio–4075, at ¶ 7, citing

Johnson v. Wagner Provision Co., 141 Ohio St. 584, 589 (1943). Further, “[w]hen

it is shown that the owner had superior knowledge of the particular danger which

caused the injury, liability attaches because, in such a case, invitees may not

reasonably be expected to protect themselves from a risk they cannot fully

appreciate.” Hairston v. Gary K. Corp., 8th Dist. No. 87199, 2006-Ohio-5566, at

¶ 10, citing Mikula v. Slavin Tailors, 24 Ohio St.2d 48 (1970); LaCourse v. Fleitz,

28 Ohio St.3d 209 (1986); see also Cochran v. Ohio Auto Club, 3d Dist. No. 9-96-

33 (Oct. 3, 1996).

       {¶15} However, a premises owner does not owe invitees a duty to warn of

any dangers on his property that are open and obvious. Armstrong ¶ 5. As such,

the open and obvious doctrine “acts as a complete bar to any negligence claims.”

Id. The rationale for this doctrine is that “the open and obvious nature of the

hazard itself serves as a warning.” Simmers v. Bentley Constr. Co., 64 Ohio St.3d

642, 644, 1992-Ohio-42. The Supreme Court of Ohio summarized the case law on

the open-and-obvious doctrine in the following manner:

       Where a danger is open and obvious, a landowner owes no duty
       of care to individuals lawfully on the premises. [T]he owner or
       occupier may reasonably expect that persons entering the
       premises will discover those dangers and take appropriate
       measures to protect themselves. Thus, when a plaintiff is

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Case No. 17-12-04


       injured by an open and obvious danger, summary judgment is
       generally appropriate because the duty of care necessary to
       establish negligence does not exist as a matter of law.

Lang, 2009-Ohio-2495, at ¶ 10 (internal citations omitted).

       {¶16} Nevertheless, this Court has previously held that “attendant

circumstances may exist which distract an individual from exercising the degree of

care an ordinary person would have exercised to avoid the danger, and ‘may create

a genuine issue of material fact as to whether a hazard is open and obvious.’ ”

Stewart v. AMF Bowling Ctrs., Inc., 3d Dist. No. 5-10-16, 2010-Ohio-5671, ¶ 15,

quoting Aycock v. Sandy Valley Church of God, 5th Dist. No. AP 09 0054, 2008-

Ohio-105, ¶ 26. An attendant circumstance is

       a factor that contributes to the fall and is beyond the control of
       the injured party. * * * The phrase refers to all facts relating to
       the event, such as time, place, surroundings or background and
       the conditions normally existing that would unreasonably
       increase the normal risk of a harmful result of the event. * * *
       However, ‘[b]oth circumstances contributing to and those
       reducing the risk of the defect must be considered.’

Williams v. Lowe’s of Bellefontaine, 3d Dist. No. 8–06–25, 2007–Ohio–2045, ¶

18, quoting Benton v. Cracker Barrel Old Country Store, Inc., 10th Dist. No.

02AP1211, 2003-Ohio-2890, ¶ 17. “But, attendant circumstances do not include

any circumstance existing at the moment of a fall, unless the individual was

distracted by an unusual circumstance created by the property owner.” Stewart at

¶ 15 (citations omitted).


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       {¶17} Here, the Dunaways claim that the steps were not open and obvious

because the newly poured concrete created a reflective light from the sun which

made the steps difficult to see. The Dunaways also argue that there were no or

limited color variations in the steps which camouflaged the steps with the flat

concrete. Thus, the Dunaways contend the fact that Janet fell on a bright, sunny

summer day further demonstrates that the design of the steps created a latent

defect that the City was obligated to warn her against. For its part, the City argues

that the large size of the steps and the prominent black handrails in the center and

on the west side of the steps made them clearly observable upon ordinary

inspection.

       {¶18} Despite her arguments asserted on appeal, Janet never testified that

she was blinded by the reflective nature of the new concrete or that she had any

trouble seeing the steps. Rather, Janet provided the following testimony about the

cause of her fall.

       Q: Okay. Now you stated that as you reached that top step
       there, you went airborne. What caused you to go airborne?

       A: I didn’t see the steps.

       Q: Okay. So the fact that you did not see the step is what
       caused you to go airborne?

       A: Exactly.

       Q: Nothing tripped you or there wasn’t anything on the steps
       that caused your feet to get tangled or anything like that?

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      A: No, I did not see the steps.

      Q: Okay. So the reason for your fall is that you failed to observe
      that first step, correct?

      A: Correct.

(Janet’s Deposition, Nov. 9, 2010 at 28).

      Q: Okay. And at that time, you weren’t looking down at the
      step in front of you?

      A: No, sir.

      Q: Okay. There were—there was nothing there obstructing
      your view of that step, correct?

      A: No, sir.

      Q: There was nothing there blocking you from seeing it, the step
      itself?

      A: No.

      Q: And if you had been looking down, you probably would have
      been able to see the step, correct?

      A: Correct.

      Q: And at the time you’re searching around for a step [sic],
      there’s no distractions going on to prevent you from seeing it?

      A: No, sir.

      Q: Other than looking for a sign indicating an entrance, there’s
      nothing there that drew your attention away from the steps in
      front of the city building—

      A: No, sir.

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Case No. 17-12-04



       Q: —correct? And as you stated, your fall essentially occurred
       due to the fact that you failed you observe that first step?

       A: Correct.

(Id. at 30).

       {¶19} By her own admissions, there was nothing preventing Janet from

seeing the steps other than the fact that she was looking for a sign marking the

building’s new entrance, which caused her failure to notice the steps. In addition,

the City officials deposed testified that, nearly three weeks prior to Janet’s fall,

two handrails had been installed on the steps and the handicap ramp, and yellow

reflective tape had been applied to the steps to highlight their presence from the

surrounding concrete. Moreover, Bruce, Janet’s husband, testified that he had no

problems observing the steps when he arrived at the scene after receiving Janet’s

call that she had been hurt.    Simply put, there is no evidence in the record

demonstrating the steps presented a risk which Janet could not fully appreciate as

she approached the new entrance to the building. Indeed, all of the evidence,

including Janet’s own testimony, supports the trial court’s finding that the steps

were open and obvious.

       {¶20} The Dunaways next assert that even if the steps were open and

obvious, there were attendant circumstances that would negate the open and

obvious doctrine. In support of this assertion, the Dunaways argue that: (1) the


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reflectiveness of the new concrete combined with the fact that it was a bright,

sunny day obscured the open and obvious nature of the steps; (2) the City

distracted Janet by directing her away from the entrance with which she was

familiar and attempting to guide her to a new entrance without posting adequately

instructive signs; and (3) the City was aware of a defect in the design of the steps.

The Dunaways claim that because of these attendant circumstances, the open and

obvious doctrine does not apply.

       {¶21} In light of the evidence previously discussed, there is no genuine

issue of material fact. Janet never testified that reflectiveness of the new concrete

impaired her ability to observe the steps. Rather, Janet admitted that if she had

just looked down she would have seen the steps. In addition, Janet testified that

nothing obstructed or blocked her ability to view the steps; but that it was the fact

she was focused on finding an additional sign marking the new entrance that

distracted her from seeing the steps. As a pedestrian, Janet was under the duty to

exercise the degree of care an ordinary person would have exercised to avoid the

open and obvious hazard. See Carnes v. Siferd, 3d Dist. No. 1-10-88, 2011-Ohio-

4467, ¶ 26 (stating that “[i]f the pedestrian exercises the option to focus his or her

attention on a garage sale rather than on the surface upon which he or she is

traveling, then the pedestrian abandons the duty to look”).              The record

demonstrates that it was simply Janet’s choice of where to focus, and not any


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action taken by the City, that diverted her attention from steps situated in front of

her.   Finally, Janet failed to introduce sufficient evidence in the record to

substantiate her claim that there was a defect in the design of the steps, let alone

that the City was aware of such a defect.

       {¶22} Accordingly, for all these reasons we conclude that the trial court did

not err in granting the City’s motion for summary judgment on the basis that the

Dunaways’ claims are barred by the open and obvious doctrine. The Dunaways’

assignment of error is therefore overruled.

                          The City’s Assignment of Error

       {¶23} Despite receiving a favorable disposition by being granted summary

judgment, the City assigns error to the determination of the trial court in its

opinion that there remains a genuine issue of material fact regarding whether the

City is entitled to immunity under R.C. 2744.02. However, given our resolution of

the Dunaways’ assignment of error, which affirms the trial court’s grant of

summary judgment and is dispositive of the case, we find the City’s assignment of

error is rendered moot and therefore must be overruled.

       {¶24} Based on the foregoing, the judgment of the Shelby County Court of

Common Pleas is affirmed.

                                                                Judgment Affirmed

PRESTON and ROGERS, J.J., concur.
/jlr

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