[Cite as Gibson v. Leber,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

SONYA GIBSON, : OPINION

Plaintiff-Appellant, : CASE NOS. 2013-L-041 - vs - : and 2013-L-044

DAVID J. LEBER d.b.a. DAIRY MART, : et al., : Defendants-Appellees, : UNITED HEALTHCARE, : Defendant-Appellant.

Civil Appeals from the Lake County Court of Common Pleas, Case No. 12 CV 000868.

Judgment: Reversed and remanded.

Werner G. Barthol, Werner G. Barthol Co., L.P.A., 7327 Center Street, Mentor, OH 44060 (For Plaintiff-Appellant).

Shannon M. Fogarty, Davis & Young Company, L.P.A., 1200 Fifth Third Center, 600 Superior Avenue, East, Cleveland, OH 44114-2654 (For Defendants-Appellees).

Shaun D. Byroads, Kreiner & Peters, Co., L.P.A., P.O. Box 6599, Cleveland, OH 44101-6599 (For Defendant-Appellant).

THOMAS R. WRIGHT, J.

{¶1} This is an appeal from the Lake County Court of Common Pleas.

Appellant Sonya Gibson sued appellees David J. Leber and Craig Manchen,

together d/b/a Dairy Mart for injuries to her wrist resulting from a fall outside Dairy Mart. Appellees moved for summary judgment claiming that the pothole

that caused Gibson’s fall was an open and obvious condition. The trial court

granted appellees’ motion for summary judgment. Gibson timely appeals. For

the reasons set forth below, we reverse the judgment of the Lake County Court

of Common Pleas.

{¶2} On October 30, 2010, Gibson went to appellees’ store The Dairy

Mart to buy some lottery tickets. Gibson was previously familiar with the store

as she had visited it approximately ten times before the incident. On October

30, however, Gibson parked in an unfamiliar area of the parking lot. When she

parked, there were no cars parked immediately next to her car that could

obstruct her view of the ground below. Upon exiting her car, as Gibson was

shutting her door, she stepped into a pothole around one to two inches deep

and fell landing on her wrist. Gibson later incurred medical expenses relating to

two surgeries.

{¶3} Gibson filed a negligence suit against appellees for damages

relating to her wrist injury.1 After discovery, appellees moved for summary

judgment arguing that the pothole in the parking lot was an open and obvious

condition thereby relieving them of any duty owed to Gibson. Gibson argued

that the pothole was not an open and obvious condition because her car door

obstructed her view of the pothole. The trial court agreed with appellees,

determining that, as a general matter, a plaintiff’s individual activity at the

1. Gibson also brought suit against United Healthcare. United Healthcare has elected not to participate in this appeal.

2 moment of the fall cannot constitute an attendant circumstance that prevents the

application of the open and obvious doctrine. This appeal followed.

{¶4} As her sole assignment of error, Gibson alleges that:

{¶5} “The trial court’s granting of summary judgment in favor of

Defendant-Appellees was contrary to law.”

{¶6} When considering a motion for summary judgment, the trial court

may not weigh the evidence or select among reasonable inferences. Dupler v.

Mansfield Journal Co.,

(1980). Rather, all doubts and

questions must be resolved in the non-moving party's favor. Murphy v.

Reynoldsburg,

(1992). Hence, a trial court is required to

overrule a motion for summary judgment where conflicting evidence exists and

alternative reasonable inferences can be drawn. Pierson v. Norfork Southern

Corp., 11th Dist. Ashtabula No. 2002-A-0061,

. In short,

the central issue on summary judgment is, “whether the evidence presents

sufficient disagreement to require submission to a jury or whether it is so one-

sided that one party must prevail as a matter of law.” Anderson v. Liberty

Lobby, Inc.,

(1986). On appeal, we review a trial court's

entry of summary judgment de novo. Grafton v. Ohio Edison Co.,

(1996).

{¶2} In order to set forth a claim for negligence, a plaintiff must prove the

following: (1) a duty of care owed by the defendant to the plaintiff, (2) a breach

of that duty, (3) causation, and (4) damages. See, e.g., Hudspath v. The Cafaro

Company, 11th Dist. Ashtabula No. 2004-A-0073,

. In this

3 case, Gibson was an invitee on appellee's business premises. A business

owner owes his or her invitees a duty of reasonable care in maintaining the

business premises in a safe condition. Estate of Mealy v. Sudheendra, 11th

Dist. Trumbull No. 2003-T-0065,

. This duty does not

extend to dangers or obstructions that are so obvious that the invitee may

reasonably be expected to discover them and protect herself against their

potential danger. Armstrong v. Best Buy Co., Inc.,

, 2003-

Ohio-2573.

{¶3} The open-and-obvious doctrine is premised upon the legal

recognition that one is put on notice of a hazard by virtue of its open and

obvious character.

“The rationale behind the doctrine 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.”

Simmers v. Bentley Constr. Co.,

(1992).

{¶4} The question of whether a danger is open and obvious is an

objective one. Goode v. Mt. Gillion Baptist Church, 8th Dist. Cuyahoga No.

87876,

. The fact that a plaintiff was unaware of the

danger is not dispositive of the issue.

Hence, a court must consider whether,

in light of the specific facts and circumstances of the case, an objective,

reasonable person would deem the danger open and obvious. See Stanfield v.

Amvets Post No. 88, 2d Dist. Miami No. 06CA35,

.

4 {¶5} Notwithstanding the objective nature of the inquiry, the question of

whether a danger is open and obvious is not always a question that can be

decided as a matter of law simply because it may be visible. Furano v. Sunrise

Inn of Warren, Inc., 11th Dist. Trumbull No. 2008-T-0132,

, ¶23,

citing

To the contrary, the “attendant circumstances” of a fall

may create a material issue of fact regarding whether the danger was open and

obvious.

Attendant circumstances involve all facts relating to the fall, such

as “the condition of the sidewalk as a whole, the volume of pedestrian traffic, the

visibility of the defect, and whether the accident site was such that one's

attention could easily be diverted.” Armstrong v. Meade, 6th Dist. Lucas No. L-

06-1322,

. In effect, therefore, attendant circumstances

include distractions that divert an ordinary person's attention and provide a

justifiable reason for the failure to perceive the otherwise open and obvious peril.

.

{¶6} In the present matter, the only question is whether an obstruction of

the pothole due to the car door constitutes an attendant circumstance preventing

the application of the open and obvious doctrine as a matter of law. In finding

that no attendant circumstances existed, the trial court determined that attendant

circumstances cannot include an individual’s activity at the moment of the fall,

unless the individual’s attention was diverted by a circumstance beyond the

control of the injured party. See Collier v. Libations Lounge, LLC, 8th Dist.

Cuyahoga No. 97504,

. In support of her appeal, Gibson

directs our attention to Jacobsen v. Coon Restoration & Sealants, Inc., where

5 the Fifth District found that carrying a pizza box across a pizza shop’s parking lot

could constitute an attendant circumstance for tripping over a broken metal sign

post. 5th Dist. Stark No. 2011-CA-00001,

.

{¶7} We disagree with the trial court’s determination that a plaintiff’s

“individual activity” generally cannot create an attendant circumstance and

therefore find a question of fact exists as to whether the pothole was an open

and obvious condition. Because our view is in significant disagreement with

several other district courts, an in-depth explanation of our views is in order.

See

Ray v. Wal-Mart Stores, Inc., 4th Dist. Washington No.

08CA41,

, ¶31; Alsbury v. Dover Chem. Corp., 5th Dist.

Tuscarawas No. 2008 AP 10 0068,

; McConnell v. Margello,

10th Dist. Franklin No. 06AP-1235,

.

{¶8} Sidle v. Humphrey,

(1968), paragraph one of

syllabus defined the open and obvious doctrine in Ohio as the following: “[a]n

occupier of premises is under no duty to protect a business invitee against

dangers which * * * are so obvious and apparent to such invitee that he may

reasonably be expected to discover them and protect himself against them.”

Attendant circumstances in Ohio is often defined as “‘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.’” See, e.g.,

Lumley v. Marc Glassman, Inc., 11th Dist. Portage No. 2007-P-0082, 2009-

Ohio-540, ¶53, quoting Klauss v. Marc Glassman, Inc., 8th Dist. Cuyahoga No.

84799,

; Sexton v. Certified Oil Co., 4th Dist. Ross No.

6 11CA3299,

; Johnson v. Southview Hosp., 2d Dist.

Montgomery No. 25049,

. Therefore, a reduction in the

standard of care an ordinary invitee would exercise is simply another way of

stating that attendant circumstances negate the business owner’s reasonable

expectation that the invitee will discover the condition.

{¶9} Judge Fain of the Second District has a similar view of attendant

circumstances. As he explains:

{¶10} “The attendant-circumstances doctrine informs the open-and-

obvious analysis, and is therefore also addressed to the duty of the owner of the

premises to warn of a potential hazard. In performing the open-and-obvious

analysis, the court is obliged to consider the circumstances generally attending a

person encountering the hazard at that location on the premises. If those

circumstances would distract a reasonable person from a hazard that would

otherwise be open and obvious, then they must be taken into account.

{¶11} “But the analysis is still concerned with the issue of whether the

owner had a duty to warn persons of the existence of the hazard. The issue is

still whether the owner could reasonably expect that the hazard would be open

and obvious to a person encountering it. Therefore, the attendant

circumstances that inform the analysis refer to circumstances that the owner

could reasonably foresee.

{¶12} “For example, if the owner (including, of course, its agents and

employees) has placed shelves containing merchandise, with signs encouraging

patrons to purchase the merchandise, adjacent to, and above, a patch of soapy

7 water on the floor, that is an attendant circumstance that must be considered in

determining whether the hazard is open and obvious. Even if the soapy water

would otherwise be open and obvious, the placement of the attractive

merchandise adjacent to, and above it, could reasonably be expected by the

owner to distract a reasonable person from the hazard, thereby rendering it not

open and obvious. The circumstance of the distracting merchandise generally

attends persons encountering the otherwise open and obvious hazard. See

Bumgardner v. Wal-Mart Stores, Inc., 2d Dist. Miami No. 2002-CA-11,

, in which the existence of merchandise in close proximity to a hazard

was a factor in finding a genuine issue of material fact in a personal injury case.

{¶13} “But suppose that the same soapy water is present on the floor of

the store, with no distracting merchandise nearby, and a reasonable person

could be expected to see the patch of soapy water, because it is roughly two

feet in diameter, and the suds generally present in the water make it clearly

visible. Suppose further that a crazed gunman, armed with an assault rifle,

enters the store and begins shooting persons at random. One occupant of the

premises, running for his or her life, does not see the soapy water, slips, falls,

and is injured. The particular circumstance of fleeing a mortal danger distracted

the occupant from noticing the hazard that would otherwise have been open and

obvious, but that circumstance could not have been reasonably anticipated by

the owner of the premises.

{¶14} “It is the circumstances generally attendant upon a person

encountering the hazard at that location, which the owner could reasonably

8 foresee, not particular circumstances of a person when encountering the hazard,

which the owner could not reasonably foresee, that inform the open-and-obvious

doctrine, potentially rendering a hazard not open and obvious that would

otherwise be open and obvious.

{¶15} “Thus, in Williams v. Voss Chevrolet, Inc., 2d Dist. Montgomery No.

21560,

, we held: ‘* * * that no reasonable jury could find

that the owner of the Voss Chevrolet store was charged with knowledge,

constructive or actual, that a salesman was going to make a chance remark

about the weather at the moment that a customer was about to enter the store.

Therefore, that cannot be an attendant circumstance capable of rendering the

four-inch step up into the store other than open and obvious, and the store

owner had no duty to warn the customer of the hazard, or to correct it.’

{¶16} “Because the issue is whether the owner had a duty to warn

persons on the premises of a potential hazard, the question is whether the

owner could reasonably expect, from circumstances known to the owner, or of

which the owner had constructive knowledge, that the hazard would be open

and obvious to a reasonable person encountering the hazard.” Johnson v.

Southview Hosp., 2d Dist. Montgomery No. 25049,

,

concurring opinion of Judge Fain.

{¶17} Furthermore, the Restatement (Second) of Torts Section 343A

states:

{¶18} “(1) A possessor of land is not liable to his invitees for physical

harm caused to them by any activity or condition on the land whose danger is

9 known or obvious to them, unless the possessor should anticipate the harm

despite such knowledge or obviousness.

{¶19} “(2) In determining whether the possessor should anticipate harm

from a known or obvious danger, the fact that the invitee is entitled to make use

of public land, or of the facilities of a public utility, is a factor of importance

indicating that the harm should be anticipated.”

{¶20} Comment f further elaborates that “[t]here are, however, cases in

which the possessor of land can and should anticipate that the dangerous

condition will cause physical harm to the invitee notwithstanding its known or

obvious danger. In such cases the possessor is not relieved of the duty of

reasonable care which he owes to the invitee for his protection. This duty may

require him to warn the invitee, or to take other reasonable steps to protect him,

against the known or obvious condition or activity, if the possessor has reason to

expect that the invitee will nevertheless suffer physical harm.

{¶21} “Such reason to expect harm to the visitor from known or obvious

dangers may arise, for example, where the possessor has reason to expect that

the invitee's attention may be distracted, so that he will not discover what is

obvious, or will forget what he has discovered, or fail to protect himself against it.

Such reason may also arise where the possessor has reason to expect that the

invitee will proceed to encounter the known or obvious danger because to a

reasonable man in his position the advantages of doing so would outweigh the

apparent risk.” Several other states have followed the Restatement on these

points. See Dos Santos v. Coleta,

(2013); Groleau v.

10 Bjornson Oil Co.,

(N.D. 2004); Bucheleres v. Chicago

Park Dist.,

(1996); Wieseler v. Sisters of Mercy Health

Corp.,

(Iowa 1995); Miller v. Zep Mfg. Co.,

(1991); Baker v. Mid Maine Medical Center,

(Me. 1985);

Tribe v. Shell Oil Co.,

(1982); Wilk v. Georges,

(1973).

{¶22} Given that the Ohio Supreme Court relied upon the Restatement

(Second) of Torts in creating the open and obvious doctrine, it is likely that the

attendant circumstance requirement is consistent with the Restatement’s

position. Sidle,

. Most importantly, however, several

Ohio courts have implicitly stated that the presence of attendant circumstances

demonstrates the business owner does possess a reasonable expectation that

the invitee can avoid an otherwise open and obvious hazard. For instance, in

Jacobsen, the Fifth District found that carrying a pizza box from a pizza shop to

the plaintiff’s car could be an attendant circumstance for not noticing a metal

stump in a parking lot. Jacobsen,

. In other words, the

business owner (the pizza shop) could not reasonably expect invitees (the

customer) to avoid an otherwise open and obvious condition in the business

owner’s parking lot (the metal stump) because an attendant circumstance (the

pizza box) obstructed the invitee’s view of the hazard. Other courts have

implicitly used the same logic in explaining why an attendant circumstance

exists. See Horner v. Jiffy Lube Int'l, Inc., 10th Dist. Franklin No. 01AP-1054,

(discussing a car obstructing a customer’s view of a Jiffy Lube

11 pit); Zimmerman v. Kroger Co., 4th Dist. Jackson No. 00CA002,

, *13-15 (August 9, 2000) (concluding a door might have been an

attendant circumstance obscuring the vision of an out of place floor mat); Wehrle

v. ABC Supply Co., 1st Dist. Hamilton No. C-980476,

(February 26, 1999) (concluding question of fact existed over whether truck

obstructed the view of a drain); Schuley v. Consolidated Stores Corp., 7th Dist.

Mahoning No. 98 C.A. 138,

(Mar. 24, 2000)

(same).

{¶23} Accordingly, the trial court erred in concluding that as a general

matter attendant circumstances do not include those created by the invitee’s

individual activity. The creator of the attendant circumstance is not the focus.

Whether the landowner could reasonably foresee that the attendant

circumstance would exist when the invitee encountered the condition controls.

Ordinary invitee-initiated tasks such as carrying a pizza box across a parking lot

or opening a car door are attendant circumstances because the business owner

can foresee these activities and that such activities could obstruct the invitee’s

view of the condition. Consequently, appellant’s deposition testimony that the

car door obstructed her view of the ground is sufficient to create a question of

fact as to whether the condition was open and obvious. Although appellee

contends appellant was careless in getting out of the car, this at best creates a

question of fact.

{¶24} Appellant’s sole assignment of error has merit.

12 {¶25} The judgment of the Lake County Court of Common Pleas is

reversed. We remand for further proceedings.

COLLEEN MARY O’TOOLE, J., concurs,

CYNTHIA WESTCOTT RICE, J., dissents with a Dissenting Opinion.

____________________

CYNTHIA WESTCOTT RICE, J., dissents with a Dissenting Opinion.

{¶26} Because I disagree with the analysis and disposition of the majority,

I respectfully dissent.

{¶27} Gibson testified she was familiar with this Dairy Mart. She had

been to the store at least 10-12 times per month in the year before this incident.

She was aware the parking lot contained a giant pothole. There was nothing

blocking her view of the pothole as she pulled into the parking lot. She said that

as she exited the car, she fell in a pothole in the parking lot because the pothole

was obscured by her car door. She said that she did not look to see where she

was walking; that if she did, she would have seen the pothole; and that she did

not see it because at the time she was talking to someone and was not paying

attention to it. The majority holds Gibson’s car door created a question of fact

regarding whether the pothole was an open and obvious condition.

{¶28} The majority concedes that several other Ohio Appellate Districts

disagree with its holding. These districts uniformly hold that attendant

circumstances do not include the plaintiff’s activity at the moment of the fall,

13 unless the plaintiff’s attention was diverted by (1) an unusual circumstance (2) of

the property owner’s making, (3) which is beyond the control of the plaintiff.

Ray, supra, at ¶31 (Fourth District); Alsbury, supra, at ¶60 (Fifth District);

(Eighth District);

(Tenth District).

{¶29} Further, these holdings are consistent with, if not dictated by,

Armstrong v. Best Buy,

,

, the controlling law in

this area. In Armstrong, the Supreme Court of Ohio held:

{¶30} We continue to adhere to the open-and-obvious doctrine

today. In reaching this conclusion, we reiterate that when

courts apply the rule, they must focus on the fact that the

doctrine relates to the threshold issue of duty. By focusing

on the duty prong of negligence, the rule properly considers

the nature of the dangerous condition itself, as opposed to

the nature of the plaintiff's conduct in encountering it. The

fact that a plaintiff was unreasonable in choosing to

encounter the danger is not what relieves the property owner

of liability. Rather, it is the fact that the condition itself is so

obvious that it absolves the property owner from taking any

further action to protect the plaintiff. * * * Even under the

Restatement [of the Law 2d, Torts, Section 343A] view

[finding liability when the landowner should have anticipated

harm caused by obvious dangers], we believe the focus is

misdirected because it does not acknowledge that the

14 condition itself is obviously hazardous and that, as a result,

no liability is imposed. (Emphasis added.) Id. at ¶13.

{¶31} The Supreme Court in Armstrong thus criticized Restatement of the

Law 2d, Torts, Section 343A, and expressly declined to follow cases that have

adopted it. Armstrong at ¶10. Consequently, I cannot concur with the majority’s

reliance on that section of the Restatement and out-of-state cases that have

followed it to support its holding.

{¶32} Moreover, this court’s prior, well-reasoned holding in Furano, supra,

bars a plaintiff from recovering where the difficulty alleged to be an attendant

circumstance was created by the plaintiff and solely within his control.

{¶33} In Furano, the plaintiff tripped over a tire stop upon exiting the

passenger side of her husband’s car. According to the plaintiff, upon exiting the

car, she used her own car to guide her out of a tight parking spot, and then

tripped and fell over the tire stop. On appeal, she argued that because her

husband’s vehicle was almost completely covering the tire stop and their car

was close to other cars, the court should apply the attendant circumstances

doctrine to her case. This court rejected this argument, holding:

{¶34} The Furanos argue [that] attendant circumstances exist in

this case, namely, that the tire stop was almost completely

obscured by their own vehicle and that there was little room

between their vehicle and the adjacent vehicle. We disagree.

These circumstances alleged by the Furanos reflect at most

the difficulties in negotiating the steps around the elevation

15 of the tire stop after exiting the vehicle. They do not reflect

any distraction or diversion that would warrant an application

of the doctrine of attendant circumstances. In order to accept

their claim that the attendant circumstances here create an

issue of fact as to whether a properly placed tire stop was an

open and obvious danger, we would have to stretch the

doctrine of attendant circumstances beyond its logical

construct. (Emphasis added.) Id. at ¶25.

{¶35} This court in Furano thus drew a distinction between a difficulty

created by the plaintiff and a distraction created by the property owner, and held

that the former would not warrant application of the attendant circumstances

doctrine. This same distinction was made by the Fourth, Fifth, Eighth, and

Tenth Districts in the cases cited above. Thus, this court in Furano has already

adopted the logic and holding of these courts.

{¶36} The position now taken by the majority rewrites the open and

obvious doctrine as adopted by the Supreme Court in Armstrong to allow a

plaintiff to create a question of fact by creating a difficulty which is entirely in his

control. The majority’s holding ignores Armstrong, the precedent of this court in

Furano, and the decisions of the four Ohio Appellate Districts cited above. The

result reached by the majority was never intended by the Supreme Court in

Armstrong, and violates the holding of that case that the open and obvious

doctrine considers the nature of the dangerous condition itself, not the nature of

the plaintiff’s conduct in encountering it. Because the majority’s holding does

16 not follow the well-settled law of this state, I would hold that Gibson cannot rely

on her car door to create a genuine issue of material fact regarding whether the

pothole was open and obvious.

{¶37} The facts of this case are quite similar to those in another case

decided by this court. In Ward v. Wal-Mart Stores, Inc., 11th Dist. Lake No.

(Dec. 28, 2001), the plaintiff drove to Wal-Mart.

She was familiar with the parking lot. She tripped in a pothole and fell in the

parking lot injuring her ankle. This court held the plaintiff’s alleged distraction by

other people and cars merely described normal conditions found in most parking

lots. Id. at *11. The plaintiff never said that traffic was unusually heavy or close

by at the time of the incident. The pothole was out in the open and nothing

impeded her view of the defect. This court held the plaintiff’s claim was barred

by the open and obvious doctrine. Id. The Supreme Court of Ohio affirmed this

holding on the authority of Armstrong, supra, at ¶1.

{¶38} For the foregoing reasons, I would affirm the trial court’s summary

judgment in favor of Dairy Mart.

{¶39} I therefore respectfully dissent.

17