[Cite as Kraft v. Johnny Biggs Mansfield, L.L.C.,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

SHARON E. KRAFT, et al. JUDGES: Hon. Patricia A. Delaney, P. J. Plaintiffs-Appellants Hon. John W. Wise, J. Hon. Julie A. Edwards, J. -vs- Case No. 2012 CA 0068 JOHNNY BIGGS MANSFIELD, LLC, et al.

Defendants-Appellees OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 11 CV 477

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 29, 2012

APPEARANCES:

For Plaintiffs-Appellants For Defendants-Appellees

CURTIS J. SYBERT GARY A. PIPER MATTHEW S. GOFF BARAN, PIPER, TARKOWSKY, SCHERNER & SYBERT, LLC & FITZGERALD CO. LPA 153 South Liberty Street 3 North Main Street, Suite 500 Powell, Ohio 43065 Mansfield, Ohio 44902 Richland County, Case No. 2012 CA 0068 2

Wise, J.

{¶1} Plaintiffs-Appellants Sharon E. Kraft and John Kraft appeal the decision of

the Court of Common Pleas, Richland County, which granted summary judgment in

favor of Defendants-Appellees Johnny Biggs Mansfield, LLC, R & D Partnership, LLP,

CFC Restaurant Group, Inc., and CFC Management Company, Inc., in a trip and fall

lawsuit. The relevant facts leading to this appeal are as follows.

{¶2} On November 28, 2010, Appellants Sharon and John Kraft arrived for a

planned Sunday afternoon meal with some relatives at Johnny Biggs Restaurant in

Ontario, Ohio. Appellants drove into a space in the west-side parking lot, as the south-

side parking lot they had used on previous visits was full. Sharon, carrying a bag purse,

approached the restaurant entrance from the concrete walkway leading to the west

parking lot. She later testified she had not approached on the west walkway before that

time. As she walked toward the west entrance, she observed other patrons entering or

exiting via both the west and south entrances. Other patrons were standing on the

walkway.

{¶3} As Sharon approached within a few steps of the west entrance, her left

foot struck a raised portion of the concrete created by a slight height difference between

two sidewalk sections. As a result, Sharon fell and struck her head on the walkway,

resulting in an orbital fracture, a nasal fracture, and facial contusions.

{¶4} On April 15, 2011, Appellants Sharon and John Kraft filed a civil lawsuit

against appellees in the Richland County Court of Common Pleas. Appellees each filed

separate answers to the complaint on May 25, 2011. Richland County, Case No. 2012 CA 0068 3

{¶5} On May 17, 2012, appellees filed a joint motion for summary judgment. On

June 11, 2012, appellants filed a memorandum in response, to which appellees replied

on June 25, 2012.

{¶6} On July 11, 2012, the trial court issued an entry granting summary

judgment in favor of appellees.

{¶7} On August 8, 2012, appellants filed a notice of appeal. This Court

subsequently placed the appeal on the accelerated calendar. Appellants herein raise

the following three Assignments of Error:

{¶8} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

BASED UPON THE OPEN AND OBVIOUS DOCTRINE.

{¶9} “II. THE TRIAL COURT ERRED BY USING THE INCORRECT LEGAL

STANDARD IN ITS FINDING THAT THE HAZARD WAS OPEN AND OBVIOUS AS A

MATTER OF LAW.

{¶10} “III. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

BASED ON A FINDING THAT PLAINTIFFS DID NOT DEMONSTRATE THAT ANY

ATTENDANT CIRCUMSTANCES EXISTED THAT WOULD PRECLUDE THE

APPLICATION OF THE OPEN AND OBVIOUS DOCTRINE.”

I.

{¶11} In their First Assignment of Error, appellants contend the trial court erred

in granting summary judgment in favor of appellees under the “open and obvious”

doctrine. We disagree.

{¶12} As an appellate court reviewing summary judgment issues, we must stand

in the shoes of the trial court and conduct our review on the same standard and Richland County, Case No. 2012 CA 0068 4

evidence as the trial court. Porter v. Ward, Richland App.No. 07 CA 33, 2007-Ohio-

5301, ¶ 34, citing Smiddy v. The Wedding Party, Inc. (1987),

,

.

{¶13} Civ.R. 56(C) provides, in pertinent part:

{¶14} “Summary judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence, and written stipulations of fact, if any, timely filed in the action, show that

there is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law. * * * A summary judgment shall not be rendered unless it

appears from the evidence or stipulation, and only from the evidence or stipulation, that

reasonable minds can come to but one conclusion and that conclusion is adverse to the

party against whom the motion for summary judgment is made, that party being entitled

to have the evidence or stipulation construed most strongly in the party's favor. * * * ”

{¶15} Pursuant to the above rule, a trial court may not enter a summary

judgment if it appears a material fact is genuinely disputed. The party moving for

summary judgment bears the initial burden of informing the trial court of the basis for its

motion and identifying those portions of the record that demonstrate the absence of a

genuine issue of material fact. The moving party may not make a conclusory assertion

that the non-moving party has no evidence to prove its case. The moving party must

specifically point to some evidence which demonstrates the non-moving party cannot

support its claim. If the moving party satisfies this requirement, the burden shifts to the

non-moving party to set forth specific facts demonstrating there is a genuine issue of Richland County, Case No. 2012 CA 0068 5

material fact for trial. Vahila v. Hall,

,

, citing

Dresher v. Burt,

,

.

{¶16} In Ohio, a business owner, “although not an insurer of the customer's

safety, owes business invitees a duty of ordinary care to maintain the premises in a

reasonably safe condition for their protection.” Centers v. Leisure Internatl., Inc. (1995),

,

, citing Paschal v. Rite Aid Pharmacy, Inc.

(1985),

, 18 OBR 267,

. When a danger is open and

obvious, a premises owner owes no duty of care to individuals lawfully on the premises.

See Campbell-Sutton v. DeLong, Licking App.No. 08 CA 18,

,

citing Armstrong v. Best Buy Co.,

,

,

.

Open and obvious dangers are not concealed and are discoverable by ordinary

inspection. Aycock v. Sandy Valley Church of God, Tuscarawas App.No. 2006 AP 09

0054,

, citing Parsons v. Lawson Co. (1989),

,

. The dangerous condition at issue does not actually have to be

observed by the claimant to be an open and obvious condition under the law.

citing

Lydic v. Lowe's Cos., Inc., Franklin App. No. 01AP-1432,

, ¶ 10. Rather,

the determinative issue is whether the condition is observable.

{¶17} Appellants in the case sub judice maintain that because of the proximity of

the raised concrete section to the restaurant entrance and the corresponding pedestrian

traffic, it would be unreasonable to expect invitees to discover the potential sidewalk

hazard. However, a review of the record indicates that the incident in question took

place on a sunny autumn afternoon and that the walkway was dry and free of leaves

and debris. See Sharon Kraft Depo. at 34-36, 54. Photograph Exhibits C1 – C5 in the Richland County, Case No. 2012 CA 0068 6

record indicate that there are at least several inches of flat, closely-cut grass or mulch

on either side of the sidewalk. Although there is a lamppost in the grassy area and

some nearby shrubbery, no shadows from such objects are cast on the spot where the

concrete joint is located. In her deposition, Sharon answered in the affirmative when

asked if she would have been able to see the raised portion of the concrete had she

looked down. Id. at 56-57.

{¶18} Accordingly, upon review, we find no error in the trial court's grant of

summary judgment in favor of appellees, based on the open and obvious nature of any

hazards associated with the concrete walkway at the restaurant’s entrance. We

therefore hold the evidence would demonstrate that appellants cannot support their

claim on the basic question of the open and obvious nature of the sidewalk hazard.

{¶19} Appellants’ First Assignment of Error is overruled.

II.

{¶20} In their Second Assignment of Error, appellants argue the trial court

erroneously used a subjective standard in awarding summary judgment to appellees.

We disagree.

{¶21} We note the trial court, in reaching its decision, found that the walkway’s

concrete “lip” was “so open and obvious that the defendants could reasonably expect

persons upon the premises, including plaintiff Sharon Kraft, to discover the condition

and take appropriate measures to protect themselves.” Summary Judgment Entry at 2.

As such, we are unpersuaded that the trial court improperly utilized a subjective

standard, rather than an objective, reasonable person standard to analyze the “open

and obvious” issue, as urged by appellants. Moreover, we review a summary judgment Richland County, Case No. 2012 CA 0068 7

de novo and without deference to the trial court's determination. See, e.g., Wachovia

Bank of Delaware, NA v. Jackson, Stark App.No. 2011CA00261,

.

As such, we find further analysis of appellant’s claim in this regard to be unnecessary.

{¶22} Appellants’ Second Assignment of Error is overruled.

III.

{¶23} In their Third Assignment of Error, appellants maintain the trial court erred

in granting summary judgment upon its determination that no attendant circumstances

existed at the time of the trip and fall. We disagree.

{¶24} Attendant circumstances are factors that contribute to a fall and are

beyond the injured person's control. See Backus v. Giant Eagle, Inc. (1996),

,

. They are also recognized as circumstances that

significantly enhance the danger of the defect or hazard and contribute to the injury.

Stockhauser v. Arch Diocese of Cincinnati (1994),

,

.

Attendant circumstances do not include the individual's activity at the moment of the fall,

unless the individual's attention was diverted by an unusual circumstance of the

property owner's making. McGuire v. Sears, Roebuck & Co. (1996),

,

.

{¶25} Appellants essentially contend that summary judgment was improper

where alleged attendant circumstances negated the application of the open and obvious

doctrine. They urge that these attendant circumstances consisted of (1) the proximity of

the raised sidewalk portion to the entrance and corresponding pedestrian traffic, (2)

alleged shadows on the sidewalk, and (3) Sharon’s carrying of a bag purse at her knee

level. Richland County, Case No. 2012 CA 0068 8

{¶26} However, upon review, we find no basis to reverse the granting of

summary judgment on any of the aforesaid grounds. Despite the fact that the restaurant

was “rather busy” with Sunday afternoon patrons, Sharon agreed in her deposition that

there was “normal traffic” of people coming in and out at the time. Sharon Kraft Depo. at

36, 55-56. Furthermore, we concur with appellees’ observation that the alleged

shadows did not cover the walkway area in question, and that certain daytime light

actually enhances the visibility of the height difference in the two concrete sections. See

Photograph Exhibits C1 – C5. Finally, while this Court has previously addressed an

attendant circumstances question related to a plaintiff carrying a pizza box, ostensibly

blocking her view of the ground (see Jacobsen v. Coon Restoration & Sealants, Inc.,

Stark App.No. 2011–CA–00001,

), we find such a scenario is

distinguishable from potential visual blockage of a walkway by a bag purse at knee

level. We hold none of these circumstances are so significant or unusual so as to rise

to the level of “attendant circumstances” as a matter of law.

{¶27} Appellants’ Third Assignment of Error is therefore overruled.

{¶28} For the reasons stated in the foregoing, the decision of the Court of

Common Pleas, Richland County, Ohio, is hereby affirmed.

By: Wise, J. Delaney, P. J., and Edwards, J., concur. ___________________________________

___________________________________

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JUDGES JWW/d 1107 Richland County, Case No. 2012 CA 0068 9

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

SHARON E. KRAFT, et al. : : Plaintiffs-Appellants : : -vs- : JUDGMENT ENTRY : JOHNNY BIGGS MANSFIELD, LLC, et al. : : Defendants-Appellees : Case No. 2012 CA 0068

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Richland County, Ohio, is affirmed.

Costs assessed to appellant.

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JUDGES