[Cite as Darah v. Coaching by Kurt, L.L.C., 2016-Ohio-7523.]




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


Sherrie L. Darah, et al.                                  Court of Appeals No. L-16-1071

        Appellants                                        Trial Court No. CI0201404973

v.

Coaching by Kurt, LLC

        Appellee

v.

Michael Yuschak                                           DECISION AND JUDGMENT

        Third-Party Defendant                             Decided: October 28, 2016

                                                 *****

        D. Lee Johnson, for appellants.

        Timothy C. James and Kathleen M. Davis, for appellee.

                                                 *****

        YARBROUGH, J.

        {¶ 1} This is an accelerated appeal. In this premises liability case, appellants,

Sherrie and Louis Darah, appeal the judgment of the Lucas County Court of Common
Pleas granting summary judgment in favor of appellee, Coaching by Kurt, LLC, on the

basis that the trip hazard was open and obvious. For the reasons that follow, we affirm.

                          I. Facts and Procedural Background

       {¶ 2} On March 18, 2014, Sherrie was working out with her personal trainer,

Michael Yuschak, at a facility in Maumee, Ohio, operated by appellee. As part of her

routine, Sherrie typically warmed up on the treadmill for a few minutes before lifting

weights. On that day, she was walking toward the treadmill when her foot caught a

“ripple” in the rubber floor, causing her to lose her balance and fall. As she fell, Sherrie

hit her left elbow on some weights. Sherrie suffered a fractured left elbow and right

wrist, both of which required surgery to repair.

       {¶ 3} Thereafter, on December 15, 2014, appellants filed a two-count complaint

against appellee. In Count 1, appellants brought a negligence claim, alleging that

appellee breached its duty to maintain and operate its premises in a safe manner when it

failed to properly repair and maintain the workout mats which caused Sherrie to trip and

fall. The second count consisted of a claim for loss of consortium. Appellee filed an

answer denying the allegations, and subsequently filed a third-party complaint against

Yuschak seeking indemnification or contribution.

       {¶ 4} On December 18, 2015, appellee moved for summary judgment arguing,

inter alia, that the allegedly improperly installed rubber floor was an open and obvious

condition. The trial court agreed, and on March 31, 2016, entered its judgment




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dismissing appellants’ complaint against appellee, as well as appellee’s third-party

complaint against Yuschak.

       {¶ 5} Appellants have timely appealed, and now assert one assignment of error for

our review:1

               1. The trial court erred by granting summary judgment on the basis

       of the “open and obvious” doctrine where several issues of material fact are

       in dispute, and the facts on the record weigh against application of the

       “open and obvious” doctrine.

                                       II. Analysis

       {¶ 6} We review the grant of a motion for summary judgment de novo, applying

the same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d

127, 129, 572 N.E.2d 198 (9th Dist.1989); Grafton v. Ohio Edison Co., 77 Ohio St.3d

102, 105, 671 N.E.2d 241 (1996). Under Civ.R. 56(C), summary judgment is appropriate

where (1) no genuine issue as to any material fact exists; (2) the moving party is entitled

to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion,

and viewing the evidence most strongly in favor of the nonmoving party, that conclusion

is adverse to the nonmoving party. Harless v. Willis Day Warehousing Co., 54 Ohio

St.2d 64, 66, 375 N.E.2d 46 (1978).

       {¶ 7} On a motion for summary judgment, the moving party has the burden of

demonstrating that no genuine issue of material fact exists. Dresher v. Burt, 75 Ohio

1
 Appellee has not cross-appealed the trial court’s dismissal of the third-party complaint.
Thus, Yuschak is not a party to this appeal.


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St.3d 280, 292, 662 N.E.2d 264 (1996). In doing so, the moving party must point to

some evidence in the record in the form of “pleadings, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence, and written

stipulations of fact, if any, timely filed in the action.” Civ.R. 56(C); Dresher at 292-293.

The burden then shifts to the nonmoving party to provide evidence showing that a

genuine issue of material fact does exist. Dresher at 293.

       {¶ 8} Appellee argues that it is entitled to summary judgment on appellants’

negligence claim because the deposition testimony reveals that it owed no duty to Sherrie

to protect her from the defect in the rubber flooring.

       {¶ 9} “In order to maintain a negligence action, the plaintiff must show the

existence of a duty, a breach of that duty, and that the breach of that duty proximately

caused the plaintiff’s injury.” Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416,

2002-Ohio-2480, 768 N.E.2d 1136, ¶ 18.

       {¶ 10} “In Ohio, the status of the person who enters upon the land of another (i.e.,

trespasser, licensee, or invitee) continues to define the scope of the legal duty that the

landowner owes the entrant.” Gladon v. Greater Cleveland Regional Transit Auth., 75

Ohio St.3d 312, 315, 662 N.E.2d 287 (1996). Here, the parties do not dispute that Sherrie

was on the premises as an invitee. See id. (“Invitees are persons who rightfully come

upon the premises of another by invitation, express or implied, for some purpose which is

beneficial to the owner.”).




4.
       {¶ 11} “A shopkeeper ordinarily owes its business invitees a duty of ordinary care

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

invitees of latent or hidden dangers.” Armstrong v. Best Buy Co., 99 Ohio St.3d 79,

2003-Ohio-2573, 788 N.E.2d 1088, ¶ 5. However, “[a] shopkeeper is not * * * an insurer

of the customer’s safety.” Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 480

N.E.2d 474 (1985). Thus, a shopkeeper “owes no duty to persons entering those

premises regarding dangers that are open and obvious.” Armstrong at ¶ 5, citing Sidle v.

Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589 (1968), paragraph one of the syllabus. 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., quoting Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 644, 597

N.E.2d 504 (1992). “Whether a hazard is open and obvious must be determined on the

facts in each case.” Miller v. First Internatl. Fid. & Trust Bldg., Ltd., 6th Dist. Lucas No.

L-08-1187, 2009-Ohio-6677, ¶ 68. “A hazard is considered to be open and obvious when

it is in plain view and readily discoverable upon ordinary inspection.” Id.

       {¶ 12} Here, the sole issue we must address is whether there are any genuine

issues of material fact pertaining to whether the “ripple” was an open and obvious hazard.

Relative to that determination is the deposition testimony of Sherrie and Amanda Kato,

the owner of appellee.




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       {¶ 13} Kato testified that she purchased rubber flooring for the workout studio on

the advice of Yuschak. Rather than have the flooring professionally installed, Kato

tasked her father with the job. Initially, the flooring was placed on top of preexisting

carpet. After a few days, however, Yuschak, Kato, and the patrons noticed that there

were “bubbles” or “ripples” in the flooring. Kato and her father then embarked on a

series of measures to correct the defect, consulting with the seller of the flooring on at

least one occasion. They attempted to nail the flooring down, glue the flooring to the

carpet, slice the flooring into smaller pieces, and place gym equipment on the raised

portions. Each remedy worked to some effect, but bubbles or ripples would appear in

other places. When describing the ripple itself, Kato testified:

              Q: [D]id you consider it a dangerous situation?

              A: No, because it wasn’t to the point where it was horrible,

       however, it was like - I have my clients run outside and if there’s a crack in

       the sidewalk, I say, be careful, there’s a crack, just be -- I just wanted them

       to be aware.

              Q: Like what would you tell them?

              A: Be careful, watch your step.

              Q: If they wouldn’t watch their step, what would you envision

       happening?

              A: They could have tripped.

              Q: What would they actually trip on?




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            A: Probably the bubble.

            Q: And how big was the bubble, if you can estimate it, either with a

     fist, a glass, a coffee cup, a rubber ball, a baseball, a tennis ball?

            A: No, it wasn’t raised up like that. It was just like a ripple. It

     wasn’t even -- I don’t think I could really put an object to it. It was just a

     rise in the floor.

     {¶ 14} For her part, Sherrie testified regarding the circumstances:

            Q: Was it well-lit inside, would you say?

            A: Yeah, I would say so.

            Q: What type of shoes were you wearing?

            A: Tennis Shoes.

            Q: Were you walking over to get on the treadmill?

            A: Yes.

            ***

            Q: Where were you looking as you were walking to the treadmill?

            A: Well, there’s mirrors, that whole wall was mirrors. And all I

     could think of was I’m going to fall into those mirrors when I started

     falling. Maybe that’s why I turned, I don’t know.

            Q: Before you actually started to fall and you were walking toward

     the treadmill, where were you looking?




7.
            A: I was looking at [Yuschak] standing in front of the treadmill

     because I was talking to him.

            Q: Were you looking down as you walked?

            A: I don’t think so.

            ***

            Q: Was your view of the rubber mat and the floor unobstructed?

            A: I mean, I don’t -- it’s not like I think about that rubber mat when

     I go in there.

            Q: Right. Well, I guess what I’m really getting at, if you looked

     down, could you have seen it?

            A: Yeah. But when people walk on that mat, the bubbles are in

     different places, they move.

            Q: Was the mat in the same place that it had been before?

            A: Yeah.

            Q: And was it the rubber mat that caused you to trip?

            A: It was the thing my foot got stuck in there when I was walking.

            Q: So help me understand this. So was there a ripple --

            A: The mat was always -- when other people would walk on it, it

     would go like this.

            Q: Ripple?

            A: Yeah.




8.
                Q: You’re sort of making a rippling --

                A: It is, it was like a ripple.

                ***

                Q: So as you were walking to the treadmill, if you had looked down,

       would you have seen the bubble in the mat or the ripple?

                A: No.

                Q: And why not?

                A: Because they weren’t like -- you know, they were just enough

       for my tennis shoe to get stuck in. It wasn’t like I could, you know, see this

       -- no.

       {¶ 15} In their brief, appellants first argue that the hazard was both latent and

nebulous. Appellants contend that the specific hazard was appellee’s failure to properly

install the rubber flooring, and the evidence of that failure was hidden under the flooring.

We disagree. The specific hazard that Sherrie confronted was a “ripple” or “bubble” in

the surface of the flooring. In determining whether that hazard was open and obvious,

the underlying cause of the ripple is immaterial. Thus, while the cause of the ripple may

have been latent, the ripple itself was not. Therefore, we find appellants’ first argument

to be without merit.

       {¶ 16} Appellants next argue that appellee failed to meet its burden that the hazard

was open and obvious, and that a genuine issue of material fact exists over whether the

hazard was visible. Specifically, appellants point to Sherrie’s testimony that if she would




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have looked down, she would not have seen the bubble or ripple. Further, appellants

argue that Sherrie’s prior knowledge of the hazard is only a factor to be considered by the

jury when determining whether the hazard was open and obvious. Appellee, on the other

hand, argues that Sherrie’s own testimony demonstrates that it was an open and obvious

condition, citing her testimony that the facility was well-lit, her view of the floor was

unobstructed, she was aware of the existence of the bubbles or ripples, and her statement

“well to be honest with you, I thought it was an accident waiting to happen, but I didn’t

think it was going to happen to me.”

       {¶ 17} Upon our review of the record, we hold that there are no genuine issues of

material fact, and that the ripple was an open and obvious condition. Although Sherrie

testified that she would have not seen the ripple if she had looked down, “[establishing]

that a claim is barred under the open-and-obvious doctrine does not require proof that the

individual plaintiff saw the defect. Rather, it requires proof that the defect was

observable.” Czepak v. Heiges, 2011-Ohio-5523, 968 N.E.2d 1027, ¶ 22 (6th Dist.),

citing Armstrong, 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, at ¶ 16. The fact

that the ripples or bubbles were well known to everyone at the facility, including Sherrie,

leads to the only reasonable conclusion that they were readily discoverable upon ordinary

inspection. Furthermore, “a shopkeeper is under no duty to protect business invitees

from dangers ‘which are known to such invitee or are so obvious and apparent to such

invitee that [she] may reasonably be expected to discover them and protect [herself]

against them.’” (Emphasis added.) Paschal, 18 Ohio St.3d at 203-204, 480 N.E.2d 474,




10.
quoting Sidle, 13 Ohio St.2d 45, 233 N.E.2d 589, at paragraph one of the syllabus.

Therefore, because the hazard was an open and obvious condition, appellee owed no duty

to protect Sherrie from it.

       {¶ 18} Finally, appellants argue that the trial court failed to consider that attendant

circumstances may have reduced the visibility of the hazard. “Attendant circumstances

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

Snyder v. Kings Sleep Shop, LLC, 6th Dist. Williams No. WM-13-006, 2014-Ohio-1003,

¶ 22, 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. 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. 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. Id., quoting Jackson v. Bd. of Pike Cty.

       Commrs., 4th Dist. Pike No. 10CA805, 2010-Ohio-4875, ¶ 21.

       {¶ 19} Notably, as pointed out by appellee, appellants did not raise the issue of

attendant circumstances in the trial court, and it is axiomatic that “[a] party cannot assert




11.
a new issue or legal theory for the first time on appeal.” Kerger & Hartman, LLC v.

Mohamad Ajami, 2015-Ohio-5157, 54 N.E.3d 682, ¶ 33 (6th Dist.). Moreover, the record

contains no evidence of any attendant circumstances in this case. The accident occurred

in a well-lit facility, Sherrie and Yuschak were the only people at the facility, and there

was no evidence of loud music or flashing lights. Appellants cite a wall of mirrors and

Sherrie’s conversation with Yuschak as attendant circumstances, but the conversation

with Yuschak was within Sherrie’s control, and Sherrie testified that she was looking at

Yuschak, not the mirrors, when she fell. Therefore, we find no merit to appellants’

arguments concerning attendant circumstances.

       {¶ 20} Accordingly, because we hold that the ripple in the floor was an open and

obvious danger, appellants have failed to establish that appellee owed a duty to Sherrie.

As a result, summary judgment in favor of appellee on appellants’ claim for negligence is

appropriate. Appellants’ assignment of error is not well-taken.

                                      III. Conclusion

       {¶ 21} For the foregoing reasons, the judgment of the Lucas County Court of

Common Pleas is affirmed. Appellants are ordered to pay the costs of this appeal

pursuant to App.R. 24.


                                                                         Judgment affirmed.




12.
                                                        Darah v. Coaching by Kurt, LLC
                                                        C.A. No. L-16-1071




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Stephen A. Yarbrough, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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