OPINION

Upon leaving the bank, Wilson used the sidewalk to the right of the garden. She testified that her attention was diverted from the garden by a walk signal across the street and by the blinding noonday sun. She stated that she "miscalculated" and tripped on the on the corner of the three-inch elevated brick edging, causing her to fall.

The party moving for summary judgment "bears the initial burden of informing the trial court of the basis for the motion and of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims." Dresher v.Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264, 274. When, as here, the moving party discharges its burden, the nonmoving party has the reciprocal burden of producing evidence on the issues for which it bears the burden of production at trial. Id.;Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798,801.

It bears emphasis, in a case such as this, that one who invites the public onto its premises to transact business is not an insurer of their safety. Debbie v. Cochran Pharmacy-Berwick, Inc. (1967), 11 Ohio St.2d 38, 40, 227 N.E.2d 603, 605. In Ohio, premises liability is predicated on an owner or occupier's superior knowledge of the specific condition that caused injuries to a business invitee. Id. at 40, 227 N.E.2d at 606; McGuire v.Sears, Roebuck Co. (1996), 118 Ohio App.3d 494, 497,693 N.E.2d 807, 809. An owner or occupier has a duty to maintain the premises in a reasonably safe condition and to warn business invitees of unreasonably dangerous latent conditions. Paschal v.Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203, 480 N.E.2d 474,475. This duty includes an obligation to inspect the premises, as well as the exterior walkways, for possible dangerous conditions that may be unknown, and to take reasonable precautions to protect business invitees from foreseeable dangers. Perry v. EastgreenRealty Co. (1978), 53 Ohio St.2d 51, 52, 372 N.E.2d 335, 336, quoting Prosser, Law of Torts (4 Ed. 1971) 392-393.

The trial court stated in its written decision that, in granting summary judgment in favor of Spinnenweber and PNC, it relied on the "open and obvious doctrine." This doctrine provides that the owner or occupier has no duty to warn business invitees of open and obvious dangers on the premises. Paschal, supra, at 203-204, 480 N.E.2d at 475. The rationale for the doctrine is that an open and obvious condition is itself a warning of the danger, and the owner or occupier of the premises "may reasonably expect that persons entering the premises will discover those dangers and take appropriate measures to protect themselves."Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d 642, 644,597 N.E.2d 504, 506; McGuire, supra, at 497, 693 N.E.2d at 809.

In her first assignment of error, Wilson argues that the issue of whether the flower garden created an unreasonable risk of harm to business invitees involved genuine issues of material fact and comparative negligence. She argues that the jury should have been allowed to consider whether the location of the flower garden, the distraction caused by the walk light, and the blinding effect of the noonday sun were sufficient to avoid application of the open-and-obvious doctrine. We disagree.

Concededly, as a narrow exception to the open-and-obvious doctrine, a business owner must take added precautions, despite the obvious nature of the danger, if it is reasonably foreseeable that the customer's attention may be distracted by merchandise on display or that the customer may forget the presence of the danger after a lapse of time. McGuire, supra, at 498,693 N.E.2d at 809. Distractions by walk lights or the sun, however, are unrelated to the owner or occupier's business and are beyond the owner or occupier's control.

The issue of comparative negligence is never reached, furthermore, if the owner or occupier of the premises owes no duty. The photographic evidence and Wilson's own admissions demonstrate conclusively that the brick edging and flower garden were not latent, but were plainly visible. To the extent that the edging and flower garden posed any hazard, it was certainly the type of hazard that a business invitee would be expected to perceive and take appropriate measures to avoid. Because the open-and-obvious doctrine obviated any duty to warn, there was no negligence to compare pursuant to R.C. 2315.19. See Anderson v. Ruoff (1995),100 Ohio App.3d 601, 654 N.E.2d 449.

In her second assignment of error, Wilson argues that standards for premises liability create an unconstitutional suspect class based on wealth because they derive solely from the status of the person injured, thus favoring property owners and occupiers over other negligence defendants. During oral argument, counsel for Wilson withdrew this assignment. We are, furthermore, unable to find in the record where Wilson addressed this constitutional issue below. Failure to raise a constitutional issue in the trial court, when the issue is apparent at the time of trial, constitutes a waiver of such issue on appeal. Remley v.Cincinnati Metropolitan Housing Authority (1994), 99 Ohio App.3d 573,574, 651 N.E.2d 450, 451, citing State v. Awan (1986),22 Ohio St.3d 120, 489 N.E.2d 277, syllabus.

In her third assignment of error, Wilson argues that the location of the flower garden violated Mariemont Ordinance 56.30 and therefore constituted negligence per se. Again we disagree.

Violation of a municipal ordinance prohibiting a specific act, when the prohibition is designed to protect the general public, constitutes negligence per se. Eisenhuth v. Moneyhon (1954),161 Ohio St. 367, 119 N.E.2d 440, paragraph three of the syllabus. However, only after its amendment on August 10, 1998, did Section 56.30 expressly prohibit the construction of planting containers in sidewalks. The repealed version of the ordinance — the version in effect when Wilson fell — stated only that "it shall be unlawful to encumber any sidewalk space with goods, wares, merchandise or other materials." We do not interpret this earlier language to have included flower gardens.

Because Wilson did not raise the issue of negligence per se in the trial court until she moved for reconsideration of the trial court's decision granting the motion for summary judgment, Spinnenweber and PNC argue that Wilson did not preserve the issue for appeal. Her motion for reconsideration, however, was filed before the entry of a final judgment. Therefore Wilson did, in fact, call the ordinance to the attention of the trial court at a time when it could have considered the ordinance. See State v.1981 Dodge Ram Van (1988), 36 Ohio St.3d 168, 170, 522 N.E.2d 524,526. Even so, the earlier version of this ordinance, as we have determined, did not apply to landscape designs.

Accordingly, Wilson's assignments of error are overruled, and the judgment of the trial court is affirmed.

Judgment affirmed.

____________________________________ GORMAN, Presiding Judge.

While I concur in the judgment, I write separately to again state that the "open and obvious" doctrine, insofar as it magically negates any negligence on the part of the owner or occupier of land, has no continuing viability after the advent of comparative negligence.

In Ohio, some courts continue to uphold the viability of the open and obvious doctrine as a complete bar to a plaintiff's recovery in slip-and-fall cases.¹ But courts in other states have concluded that the open and obvious doctrine should not always be a complete bar; rather, it should only be a factor to be taken into account in determining a plaintiff's comparative negligence. Also, courts throughout the country have adopted Section 343A of Restatement of the Law 2d, Torts, which provides that a possessor of land is liable for harm caused by obvious dangers if the possessor should have anticipated the harm.²

In addition, in recent years, the Ohio Supreme Court has limited the applicability of the open and obvious doctrine.³ In 1998, the Ohio Supreme Court did not apply the open and obvious doctrine in a case where the plaintiff tripped over a bucket on a sidewalk it was at least open and obvious that the doctrine might apply, yet the court made no mention of it and cast the issue in terms of comparative negligence.⁴

The open and obvious doctrine is a throwback, or more properly a throwforward, from pre-comparative days. While courts continue to use it, as here, it creates confusion, because I do not think it is being used in the older sense. Here, the issue is properly whether the negligence of plaintiff in failing to see a plain hazard is greater, as a matter of law, than the negligence, if any, of the landowner. If we substitute "open and obvious" for "plain" in the previous sentence, it is grammatically correct, but perpetuates the antiquated doctrine. The landowner always has aduty to keep the premises reasonably safe, but the owner's negligence may be overcome, as a matter of comparative negligence, by the invitee's (and those distinctions should also be scrapped) negligence.

In this case, I agree that the plaintiff's negligence so dwarfs that of the owner that the trial court correctly entered summary judgment.

¹ See, e.g., Chapman v. Meinke (Dec. 19, 1997), Lucas App. No. L-97-1145, unreported; Anderson v. Ruoff (1995), 100 Ohio App.3d 601,654 N.E.2d 449.

² See, e.g., Rockweit v. Senecal (1995), 197 Wis.2d 409,541 N.W.2d 742; Donohue v. San Francisco Hous. Auth. (1993),16 Cal.App.4th 658, 20 Cal.Rptr.2d 148; Robertson v. Magic ValleyRegional Med. Ctr. (1990), 117 Idaho 979, 793 P.2d 211; Tharp v.Bunge Corp. (Miss. 1994), 641 So.2d 20; Donahue v. Durfee (Utah App. 1989), 780 P.2d 1275; Woolston v. Wells (1984), 297 Or. 548,687 P.2d 144; Parker v. Highland Park, Inc. (Tex. 1978),565 S.W.2d 512; see, also, Modern Status of the Rule Absolving a Possessor of Land of Liability to Those Coming Thereon for Harm Caused by Dangerous Physical Conditions of Which the Injured Party Knew and Realized the Risk (1971), 35 A.L.R.3d 230; Coln v.Savannah (Tenn. 1998), 966 S.W.2d 34 (summarizing approaches taken by courts).

³ See Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d 642,597 N.E.2d 504; see, also, Texler v. D.O. Summers Cleaners ShirtLaundry Co. (1998), 81 Ohio St.3d 677, 693 N.E.2d 271.

⁴ Texler, supra.; accord Schuley v. Consolidated Stores Corp. (Mar. 24, 2000), Mahoning App. No. 98 C.A. 138, unreported.