Gamby v. Fallen Timbers Enterprises, Unpublished Decision (9-30-2003)
Gamby v. Fallen Timbers Enterprises, Unpublished Decision (9-30-2003)
Opinion of the Court
{¶ 2} On July 26, 1999, appellant, Eileen Gamby,1 visited the Fallen Timbers Medical Center in Maumee, Ohio, for a dental appointment. According to her complaint, as appellant left the building she stepped into a large crack in the sidewalk, causing her to twist her leg and fall. Appellant alleges serious injury from this fall.
{¶ 3} On July 16, 2001, appellant sued the owner of the medical center, appellee, Fallen Timbers
{¶ 4} Enterprises, alleging that its failure to properly maintain its sidewalk was the cause of appellant's injury. Following discovery, the matter was submitted to the court on cross-motions for summary judgment.
{¶ 5} The court concluded that the sidewalk crack into which appellant stepped was open and obvious and that appellee, therefore, owed appellant no duty to warn appellant of its danger. Absent a breach of duty, the court ruled, appellant failed to meet her burden to make a prima facie claim sounding in negligence. Accordingly, the trial court granted appellee's motion for summary judgment and denied appellant's.
{¶ 6} From this judgment, appellant now brings this appeal, setting forth the following single assignment of error:
{¶ 7} "I. The trial court erred to the prejudice of the plaintiffs when it denied the plaintiffs' motion for summary judgment and granted the defendant's motion for summary judgment.
{¶ 8} On review, appellate courts employ the same standard for summary judgment as trial courts. Lorain Natl. Bank v. Saratoga Apts.
(1989),
{¶ 9} When seeking summary judgment, a party must specifically delineate the basis upon which the motion is brought, Mitseff v. Wheeler
(1988),
{¶ 10} The elements of ordinary negligence are well settled. To prevail on such a claim, a plaintiff must show (1) the existence of a legal duty, (2) a defendant's breach of that duty; and (3) injury as a proximate cause of the defendant's breach. Wallace v. Ohio,
{¶ 11} An owner or occupier of property owes no duty to warn a business invitee entering the property of open and obvious dangers.Armstrong v. Best Buy Co., Inc.,
{¶ 12} The hole into which appellant stepped was three-quarter inches deep, two inches wide, and five inches long. It was not covered or otherwise obscured. Appellant presented no evidence that the defect was not visible under ordinary circumstances. Appellant had traversed the same sidewalk on her way into appellee's building and observed the general disrepair of the sidewalk at that time. We must, therefore, conclude that this defect was open and obvious.
{¶ 13} A narrow exception to the open and obvious doctrine requires that a business owner take added precaution if it is reasonably foreseeable that a customer's attention may be distracted by merchandise on display or that the customer might forget the presence of a danger after a lapse of time. McGuire v. Sears Roebuck Co. (1996),
{¶ 14} Appellant testified that the only distractions which might have prevented her from seeing the depression were her conversation with her husband and glare from the sun. Conversation is certainly one of the most ordinary and common distractions people encounter. Moreover, so are the effects of the varying angle and intensity of the sun. See Wilson v.P.N.C. Bank, N.A. (May 5, 2000), Hamilton App. No. C-990727. Additionally, glare, like darkness, is itself a warning of danger and a cause for heightened care. See Reinhardt v. Cedar Point, Inc. (Nov. 1, 1991), Erie App. No. E-91-13, citing Jeswald v. Hutt,
{¶ 15} Consequently, the trial court properly concluded that the defect which caused appellant's fall was open and obvious and that no attendant circumstances existed which would give rise to a heightened duty on the part of appellee.
{¶ 16} Appellant, in her brief, also argued that the open and obvious doctrine had been superceded by comparative negligence. In oral argument, appellant withdrew this argument in light of the Supreme Court of Ohio's recent holding at the syllabus of Armstrong v. Best Buy Co.,Inc., supra.
{¶ 17} Accordingly, appellant's single assignment of error is not well-taken. The judgment of the Lucas County Court of Common Pleas is affirmed. Costs to appellant.
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