[Cite as O’Connor v. Kroger Co., 2017-Ohio-1077.]




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


Beulah O’Connor, et al.                             Court of Appeals No. OT-16-020

        Appellants                                  Trial Court No. 15CV20

v.

The Kroger Co., et al.                              DECISION AND JUDGMENT

        Appellees                                   Decided: March 24, 2017

                                                *****

        Keith G. Malick and Christopher Van Blargan, for appellants.

        Sarah A. McHugh, for appellees.

                                                *****

        SINGER, J.

        {¶ 1} Appellants, Beulah and Jeremiah O’Connor, appeal from the May 17, 2016

judgment of the Ottawa County Court of Common Pleas granting summary judgment to

appellee, The Kroger Company, and dismissing the complaint of appellants. Because we

find the trial court did not err in granting summary judgment, we affirm.
       {¶ 2} On July 20, 2011, Beulah O’Connor, tripped and fell on an uneven sidewalk

in front of The Kroger Co.’s store in Port Clinton, Ohio, and injured herself. She was

traveling during the afternoon of a dry, sunny day in a direction she had never taken

before. She was looking straight ahead, at eye level, at the entrance to the store. Nothing

obstructed her view. After she fell, she looked back and saw the variation in the height of

the sidewalk slabs. Her husband returned to the area later that day and photographed the

uneven sidewalk and he estimated the variation in height was one and one-half inches.

       {¶ 3} The O’Connors sued The Kroger Co. asserting claims of negligence on

February 27, 2013. The case was dismissed without prejudice and appellants refiled their

complaint on January 22, 2015. The Kroger Company sought summary judgment on

May 26, 2015. Appellants’ response was due July 6, 2015. Appellants filed a

memorandum in opposition on that date, but referenced the prior case number “indicated

on the court’s docket.” The Kroger Co. filed a reply to appellants’ memorandum in

opposition on July 10, 2015.

       {¶ 4} The trial court noted in its decision of May 17, 2016 that appellants did not

file a response to the motion for summary judgment. The trial court held that The Kroger

Co. had no duty to warn appellant, Beulah O’Connor, as a business invitee, of a one and

one-half inch variation in sidewalk slab heights because the danger the variation in

heights posed was open and obvious and an expected variation.

       {¶ 5} After the trial court issued its judgment, appellants filed an appeal and later a

Civ.R. 60(B) motion in the trial court. We remanded this case on August 19, 2016, to the



2.
trial court for purposes of ruling on the Civ.R. 60(B) motion. The trial court denied the

motion and appellants did not appeal from that decision. Appellants sought a second

remand, which was denied.

       {¶ 6} On appeal, appellants set forth the following arguments:

              FIRST ASSIGNMENT OF ERROR: The trial court erred in

       granting Defendant, The Kroger Co.’s Motion for Summary Judgment,

       stating that the uneven sidewalk on which Beulah O’Connor tripped was

       open and obvious as a matter of law.

              SECOND ASSIGNMENT OF ERROR: The trial court’s failure to

       consider all the pleadings constitutes reversible error and a deprivation of

       the O’Connors’ ability to have summary judgment decided on the merits of

       the case.

       {¶ 7} In their first assignment of error, appellants argue that the trial court erred in

finding that the uneven sidewalk was an open and obvious danger as a matter of law.

       {¶ 8} Appellants argue that appellee owed them a duty to exercise ordinary care in

maintaining their property in a reasonably safe condition, to conduct reasonable

inspections of its property for hidden or latent dangers, and either warn invitees of the

danger or make the property safe for invitees. Appellants further contends a genuine

issue of material fact exists as to whether appellee the height variations in the sidewalk

was an open and obvious or latent defect and, if a latent defect, whether appellee had

constructive notice of it.



3.
       {¶ 9} To establish negligence, appellants were required to prove a duty owing to

the plaintiffs; a breach of that duty; and injury proximately caused by the breach of duty.

Menifee v. Ohio Welding Products, Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984). A

business property owner has a duty “to exercise ordinary care and to protect business

invitees by maintaining the premises in a safe condition.” Lang v. Holly Hill Motel, Inc.,

122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d 120, ¶ 10, citing Light v. Ohio Univ.,

28 Ohio St.3d 66, 68, 502 N.E.2d 611 (1986). Furthermore, a landowner is not required

by common law to protect an individual lawfully on the premises from open and obvious

dangers because the fact that the danger is open and obvious serves as a warning to the

invitee. Id. at ¶ 11. The open and obvious doctrine is a limitation on the business

property owners’ liability. When the facts are undisputed, the determination of whether a

condition on the premises is an open and obvious danger is a question of law for the court

to determine, Howard v. Meat City, Inc., 3d Dist. Allen No. 1-16-32, 2016-Ohio-7989, ¶

12, because the issue is whether a reasonable person would have seen the danger and not

whether a particular plaintiff saw it. Id. at ¶ 14; Breier v. Wal-Mart Stores, Inc., 6th Dist.

Lucas No. L-08-1327, 2008-Ohio-6945, ¶ 11.

       {¶ 10} A height variation in sidewalk slabs of less than two inches are commonly

encountered by business invitees and, therefore, as a matter of law there is a rebuttable

presumption that a variation of less than two inches does not establish evidence of

negligence in maintaining the premises in a safe condition. Helms v. Am. Legion, 5 Ohio

St.2d 60, 213 N.E.2d 734 (1966), syllabus; Diamond v. TA Operating LLC, 6th Dist.



4.
Wood No. WD-12-068, 2013-Ohio-3951, ¶ 10. To overcome the presumption, a party

must establish the existence of attendant circumstances which made the condition

unreasonably dangerous. Howard, at ¶ 14.

       {¶ 11} In the case before us, appellants argue there was a question of fact as to

whether the deviation in the sidewalk slab heights was open and obvious. We disagree.

The facts are undisputed. There is only a question of law for the court of whether the

defect in this case, in light of the attendant circumstances described by appellants, was an

open and obvious defect.

       {¶ 12} The Kroger Co. argues that appellants’ facts relating to attendant

circumstances were not established by admissible evidence permitted by Civ.R. 56(E).

We disagree. Appellants’ evidence of the attendant circumstances was established by

O’Connor’s deposition and the photographs she authenticated.

       {¶ 13} Appellants argue that because of the time of day, no shadow existed to

make the deviation noticeable; the deviation was hidden by black caulking surround each

block which hid the height variation; and the shopping center was of newer construction

which lowered O’Conner’s expectation of finding shifting concrete slabs. The Kroger

Co. argues that O’Connor testified at her deposition that had she been looking, she would

have seen the danger.

       {¶ 14} We find the trial court did not err, as a matter of law, in concluding the

difference in the sidewalk slab heights of one and one-half inches was readily observable

and was a commonly-encountered variation. The attendant circumstances described by



5.
appellant do not alter the fact that the defect could have been seen if a reasonable person

had been paying attention. Therefore, we find the trial court did not err in finding The

Kroger Co. was entitled to judgment as a matter of law. Appellants’ first assignment of

error is not well-taken.

       {¶ 15} In their second assignment of error, appellants argue that the trial court

erred by failing to consider their memorandum in opposition to the motion for summary

judgment. We disagree. Because there was an error in the filing of the memorandum in

opposition, we remanded this appeal to the trial court so the issue of the missing

memorandum could be addressed. The trial court denied the motion for relief from

judgment on the ground that appellants did not have a meritorious defense. Appellants

did not appeal from that judgment and, therefore, we cannot address that judgment. As to

the judgment granting summary judgment, appellants have not shown their case was

prejudiced by the court’s failure to consider their memorandum in opposition. We find

appellants’ second assignment of error not well-taken.

       {¶ 16} Having found the trial court did not commit error prejudicial to appellants

and that substantial justice has been done, the judgment of the Ottawa County Court of

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

pursuant to App.R. 24.

                                                                       Judgment affirmed.




6.
                                                                      OT-16-020
                                                                      O’Connor, et al. v. The
                                                                      Kroger Co., et al.




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



Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




7.
