[Cite as Williams v. Strand Theatre & Cultural Arts Assn., Inc.,

.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

BETTY C. WILLIAMS, : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellant : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : STRAND THEATRE & CULTURAL ARTS : Case No. 18 CAE 06 0042 ASSOCIATION, INC., : : Defendant - Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 17-CV-C-06-0368

JUDGMENT: Affirmed

DATE OF JUDGMENT: January 14, 2019

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

T. JEFFREY BEAUSAY BRUCE A. CURRY Beausay Law Firm, LLC TRENT M. THACKER PO Box 21747 Curry, Roby & Mulvey Co., LLC Columbus, Ohio 43221-0747 30 Northwoods Blvd., Suite 300 Columbus, Ohio 43235 Delaware County, Case No. 18 CAE 06 0042 2

Baldwin, J.

{¶1} Plaintiff-appellant Betty C. Williams appeals from the May 17, 2018

Judgment Entry of the Delaware County Court of Common Pleas granting the Motion for

Summary Judgment filed by defendant-appellee Strand Theatre and Cultural Arts

Association, Inc.

STATEMENT OF THE FACTS AND CASE

{¶2} On June 12, 2015, appellant Betty C. Williams was at the Strand Theatre to

see a movie with her daughter. At the time, she was 91 years old. After her daughter

purchased popcorn, the two proceeded to go upstairs to their seats from the concession

area. Their seats were located in the Strand’s second floor theater. At the time, appellant’s

daughter was carrying the popcorn. During her deposition, appellant testified that they

started going up the steps to get to their seats and that “at the top I took a step that was

there and started tumbling.” Appellant’s Deposition at 13. Appellant further testified that

she “was up the steps and in the dark because they didn’t have any lights and when I

reached the top of the steps, I stepped down to take – going to the seats and that’s when

I fell.” Appellant’s Deposition at 14. Appellant struck her head on the floor, sustaining a

large subdural hematoma.

{¶3} The following testimony was adduced when appellant was asked whether

there was a step there that she had missed:. Appellant’s Deposition at 14-15.

{¶4} A: Uh-huh.

{¶5} Q. Okay. When did you realize that step was there?

{¶6} A: Well, I’ve been to the Strand many times so I had to have known that it

was there. But they changed it. Delaware County, Case No. 18 CAE 06 0042 3

I stepped down and there was no steps and so I just tumbled the rest of the way. I

tumbled just like you would—like a paper doll.

{¶7} Appellant testified that she had been to the Strand Theatre “many times”

and had been in that particular theater in the balcony. Appellant’s Deposition at 15. She

indicated that she had been there probably a month or two before and had traversed the

same steps before. When asked if at some point prior to June 12, 2015, she had known

that there were steps there, she stated that “I had to have.” Appellant’s Deposition at 16.

{¶8} Appellant testified that it was so dark in the theater that you could not see

your hand in front of your face and that she realized that it was dark when she walked

into the theater. Appellant did not have a flashlight on her at the time and did not ask

anyone in the theater to help her get to her seat. When asked why she fell, she testified

that she fell because it was dark and she could not see.

{¶9} On June 9, 2017, appellant filed a complaint sounding in negligence against

appellee Strand Theatre and Cultural Arts Association, Inc. Appellee filed an answer on

June 16, 2017 and a Motion for Summary Judgment on February 5, 2018. Appellant filed

a memorandum in opposition to the Motion for Summary Judgment on February 15, 2018

and appellee filed a reply on February 19, 2018.

{¶10} Pursuant to a Judgment Entry filed on May 17, 2018, the trial court granted

the Motion for Summary Judgment. The trial court found that appellee did not owe a duty

to appellant because the darkness was an open and obvious danger.

{¶11} Appellant now appeals, raising the following assignments of error on

appeal: Delaware County, Case No. 18 CAE 06 0042 4

{¶12} “I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT’S MOTION

FOR SUMMARY JUDGMENT. THE TRIAL COURT BASED ITS DECISION ON AN

ERRONEOUS DESCRIPTION OF THE FACTS AND FAILED TO USE THE

APPLICABLE LEGAL PRINCIPLES IN ANALYZING THE CASE; THIS CASE SHOULD

BE ANALYZED UNDER THE “STEP-IN THE DARK” RULE.”

{¶13} “II. ALTHOUGH THE CASE SHOULD NOT BE ANALYZED UNDER THE

“OPEN AND OBVIOUS “DOCTRINE, THE HAZARD IN QUESTION WAS NOT “OPEN

AND OBVIOUS.” IT MAKES NO SENSE TO DECLARE A PITCH DARK MOVIE

THEATRE TO BE “OPEN AND OBVIOUS”; THE HAZARD IN QUESTION WAS THE

OPPOSITE: IT WAS CLOSED AND DARK. WHETHER AN UNLAWFULLY DARK

MOVIE THEATRE WAS AN “OPEN AND OBVIOUS” HAZARD IS A QUESTION OF

FACT.”

I, II

{¶14} Appellant, in her two assignments of error, argues that the trial court erred

in granting appellee’s Motion for Summary Judgment. We disagree.

{¶15} Summary Judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said Civ.R. 56 was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins,

,

,

:

Civ.R. 56(C) provides that before summary judgment may be

granted, it must be determined that (1) no genuine issue as to any material

fact remains to be litigated, (2) the moving party is entitled to judgment as

a matter of law, and (3) it appears from the evidence that reasonable minds

can come to but one conclusion, and viewing such evidence most strongly Delaware County, Case No. 18 CAE 06 0042 5

in favor of the nonmoving party, that conclusion is adverse to the party

against whom the motion for summary judgment is made. State ex rel.

Parsons v. Fleming (1994),

,

,

citing Temple v. Wean United, Inc. (1977),

,

,

.

{¶16} As an appellate court reviewing summary judgment motions, we must stand

in the shoes of the trial court and review summary judgments on the same standard and

evidence as the trial court. Smiddy v. The Wedding Party, Inc.,

,

(1987).

{¶17} As explained by this court in Leech v. Schumaker, 5th Dist. Richland No.

15CA56,

, ¶ 13:

It is well established the party seeking summary judgment bears the

burden of demonstrating that no issues of material fact exist for trial. Celotex

Corp. v. Catrett (1986),

,

,

(1986). The standard for granting summary judgment is delineated in

Dresher v. Burt (1996),

at 293: “* * * a party seeking

summary judgment, on the ground that the nonmoving party cannot prove

its case, bears the initial burden of informing the trial court of the basis for

the motion, and 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. The moving party cannot discharge its initial

burden under Civ.R. 56 simply by making a conclusory assertion the

nonmoving party has no evidence to prove its case. Rather, the moving Delaware County, Case No. 18 CAE 06 0042 6

party must be able to specifically point to some evidence of the type listed

in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has

no evidence to support the nonmoving party's claims. If the moving party

fails to satisfy its initial burden, the motion for summary judgment must be

denied. However, if the moving party has satisfied its initial burden, the

nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to

set forth specific facts showing there is a genuine issue for trial and, if the

nonmovant does not so respond, summary judgment, if appropriate, shall

be entered against the nonmoving party.” The record on summary judgment

must be viewed in the light most favorable to the opposing party. Williams

v. First United Church of Christ (1974),

.

{¶18} As is stated above, appellant, in her complaint, alleged that appellee was

negligent. To establish a negligence claim, a plaintiff must demonstrate the existence of

a duty, a breach of that duty, and injury or damages proximately caused by the breach.

See Menifee v. Ohio Welding Prod., Inc. ,

,

(1984).

{¶19} In a premises liability case, the relationship between the owner or occupier

of the premises and the injured party determines the duty owed. Gladon v. Greater

Cleveland Regional Transit Auth.,

, 1996–Ohio–137,

). Ohio adheres to the common-law classifications of invitee, licensee, and trespasser

in cases of premises liability. Boydston v. Norfolk S. Corp.,

,

(4th Dist. 1991).

{¶20} In this case, it is undisputed that appellant was a business invitee of

appellee. An invitee is defined as a person who rightfully enters and remains on the Delaware County, Case No. 18 CAE 06 0042 7

premises of another at the express or implied invitation of the owner and for a purpose

beneficial to the owner. Broka v. Cornell's IGA Foodliner Inc., 5th Dist. Richland No.

12CA100,

,

, ¶ 20 citing Gladon, supra at 315.

{¶21} The owner or occupier of the premises owes the invitee a duty to exercise

ordinary care to maintain its premises in a reasonably safe condition, such that its invitees

will not unreasonably or unnecessarily be exposed to danger. Paschal v. Rite Aid

Pharmacy, Inc.,

,

(1985). A premises owner must warn

its invitees of latent or concealed dangers if the owner knows or has reason to know of

the hidden dangers.

However, a premises owner is not an insurer of its invitees' safety

against all forms of accident that may happen.

Invitees are expected to take

reasonable precautions to avoid dangers that are patent or obvious. Sidle v. Humphrey,

,

(1968).

Open and Obvious

{¶22} In Armstrong v. Best Buy Company, Inc., the Ohio Supreme Court found a

premises owner owes no duty to persons entering the premises regarding dangers that

are open and obvious.

,

,

.

{¶23} The rationale of the open and obvious doctrine is that the open and obvious

nature of the hazard itself serves as a warning, so that owners reasonably may expect

their invitees to discover the hazard and take appropriate measures to protect themselves

against it. Simmers v. Bentley Constr. Co.,

,

,

. Therefore, when a danger is open and obvious, a premises owner owes no duty of

care to individuals lawfully on the premises.

When applicable, the open

and obvious doctrine obviates the duty to warn and acts as a complete bar to any Delaware County, Case No. 18 CAE 06 0042 8

negligence claim. Aycock v. Sandy Valley Church of God, 5th Dist. Tuscarawas No.

2006AP090054,

.

{¶24} The law uses an objective, not subjective, standard when determining

whether a danger is open and obvious. Freeman v. Value City Dept. Store, 5th Dist. Stark

No. 2010 CA 00034,

at paragraph 17. The fact that a particular appellant

himself or herself is not aware of the hazard is not dispositive of the issue.

It is the

objective, reasonable person that must find the danger is not obvious or apparent.

The

determinative issue is whether the condition is observable. Aycock v. Sandy Valley

Church of God, 5th Dist. Tuscarawas No. 2006AP090054,

,

.

{¶25} Ohio courts have consistently recognized that darkness is an open and

obvious condition that should not be disregarded. McDonald v. Marbella Restaurant, 8th

Dist. Cuyahoga No. 89810,

. “Darkness is always a warning of

danger, and for one's own protection it may not be disregarded.”

quoting Jeswald v.

Hutt,

,

(1968), paragraph three of the syllabus. Under

this rule, Ohio courts have applied the open and obvious doctrine and denied recovery

where a plaintiff seeks to recover against a property owner for injuries sustained as a

result of stepping into darkness and sustaining injuries as a result of another object or

danger.

citing Rezac v. Cuyahoga Falls Concerts, Inc., 9th Dist. Summit No. 23313,

; Leonard v. Modene & Assoc., Inc., 6th Dist. Wood No. WD-05-085, 2006-

Ohio-5471.

{¶26} In Pass v. Cinemark, USA, Inc., 5th Dist. Stark No.2003CA00276, 2004-

Ohio-5191, a movie theater patron who was injured when she fell on stairs in a theater Delaware County, Case No. 18 CAE 06 0042 9

brought a negligence action against the theater. The patron argued that because the

sconce lights had not come up after the movie ended, she was not able to discern that

there was another step between where the handrail ended and where the landing began.

In affirming the judgment of the trial court granting summary judgment to the theater, this

Court held, in relevant part, as follows at paragraphs 16-17:

At the end of the movie, appellant elected to leave her seat, go down

the stairs and exit the theatre while the credits were showing and before the

houselights were scheduled to come to full lighting level. Thus, appellant

was aware of the darkness of the theatre. Even if the lights failed to rise to

the proper level during the credits, appellant was aware of the darkness and

chose to exit her seat.

Upon review, we find that any hazard or danger was open and

obvious. We conclude that summary judgment was appropriate.

{¶27} See also Draper v. Centrum Landmark Theater, 8th Dist. No. 72000,

(June 12, 1992).

{¶28} Appellant, in the case sub judice, argues that appellee should be held liable

since the Strand does not meet the Ohio Building Code’s minimum lighting requirements

for movie theatres.

{¶29} However, in Lang v. Holly Hill Motel, Inc.,

, 2009–Ohio–

2495,

, the Supreme Court of Ohio stated as follows:

While a violation of the Building Code may serve as strong evidence

that the condition at issue was dangerous and that the landowner breached

the attendant duty of care by not rectifying the problem, the violation is mere Delaware County, Case No. 18 CAE 06 0042 10

evidence of negligence and does not raise an irrebuttable presumption of it.

As is the case with all other methods of proving negligence, the defendant

may challenge the plaintiff's case with applicable defenses, such as the

open-and-obvious doctrine. The plaintiff can avoid such defenses only with

a per se finding of negligence, which we declined to extend to this context

in Chambers.

{¶30} The Lang court at syllabus held as follows: “The open-and-obvious doctrine

may be asserted as a defense to a claim of liability arising from a violation of the Ohio

Basic Building Code.”

{¶31} Because, in the case sub judice, the darkness was an open and obvious

condition, we find that appellee had no duty to warn or protect against it. Having found

that the open-and-obvious doctrine applies, we need not consider the issue of

contributory negligence posed by appellant’s arguments regarding the step-in-the-dark

rule. See

, citing Nageotte v. Cafaro Co.,

,

,

(open and obvious is determinative of the landowner's

duty and the question of comparative negligence is never reached if the landowner owes

no duty). We find that the darkness was open and obvious and that the trial court did not

err in granting summary judgment in favor of appellee.

{¶32} Appellant’s two assignments of error are, therefore, overruled. Delaware County, Case No. 18 CAE 06 0042 11

{¶33} Accordingly, the judgment of the Delaware County Court of Common Pleas

is affirmed.

By: Baldwin, J.

Delaney, J. concur.

Gwin, P.J. concurs Separately. Delaware County, Case No. 18 CAE 06 0042 12

Gwin, P.J., concurring

{¶34} I concur in the majority’s decision upholding the trial court’s decision. I write

separately because I do not believe the “open and obvious” doctrine is the only analysis.

{¶35} A movie theater by its nature invites people into the darkness. Conversely,

a person entering a movie theater expects it to be dark. As one court has noted, the

theater owner’s duty to its patrons is explained as follows,

The theatre owner’s need for sufficient darkness to screen a movie

or provide artistic lighting effects for a live performance, as well as the need

for sufficient light to enable patrons to find or leave their seats safely during

a show, are relevant factors for a jury to consider in evaluating what

constitutes reasonable care. Drumwright v. North Carolina Theatres, Inc.,

,

(1947). Olsen v. Edgerly,

,

(1939). Cf. Davis v. Theatre Amusement Co.,

,

(1953) (presence of aisle lights permits

inference that light is needed for safety of persons); Schneider v. Carnegie

Hall Corp., 54 App.Div.2d 897,

(N.Y. 1976) (local

ordinance governs theatre lighting); Collins v. Ector Theater,

(Tex.Civ.App. 1973) (local ordinance requires aisle lights).

Upham v. Chateau De Ville Theater, Inc.,

,

(1980). In addition,

Factors [such] as the plaintiff’s age, the lack of ushers, or the lack of

warnings to patrons to be careful going to and from their seats, as well as

the fact that the defendant had more than five weeks’ notice that a group of Delaware County, Case No. 18 CAE 06 0042 13

elderly persons would attend the theatre that evening, are factors bearing

on the reasonableness of the defendant’s conduct. The jurors may also

consider whether or not an obvious, dangerous condition existed.

Upham v. Chateau De Ville Theater, Inc.,

;

.

{¶36} “Unlike the open-and-obvious doctrine, the step-in-the-dark rule is an

affirmative defense. Also unlike that doctrine, the rule does not relate to the duty element

of a negligence claim, but instead relates to the cause of the plaintiff’s injury.” Hissong v.

Miller,

,

,

(2nd Dist.), ¶37.

{¶37} As the Ohio Supreme Court noted in a case decided under the contributory

negligence standard noted,

The step-in-the-dark rule merely raises an inference of the lack of

prudence and ordinary care on the part of a plaintiff. If conflicting evidence

exists as to the intentional nature of the step into the dark, the lighting

conditions and degree of darkness, the nature and appearance of the

premises, or other circumstances exist tending to disprove a voluntary,

deliberate step into unknown darkness, then clearly an inference of

contributory negligence does not arise. Evidence of this nature presents a

factual question for determination by the jury. Rothfuss, supra,

,

; Painesville Utopia Theatre Co. v. Lautermilch

(1928),

,

; Chardon Lakes Inn Co., supra,

,

; Plotkin v. Meeks (1936),

,

. Delaware County, Case No. 18 CAE 06 0042 14

Possin v. A.B.C. Motor Court Hotel, Inc.,

,

(1976). In Jeswald v. Hutt,

,

(1968), the Supreme

Court of Ohio held that darkness was always a warning of danger and, therefore, a plaintiff

will be considered contributorily negligent for any injury claims which occur due to

darkness.

,

. The Jeswald holding and the Possin holding were

issued when a plaintiff was completely barred from recovery if his or her own contributory

negligence was a factor. However, subsequent to these holdings, Ohio’s General

Assembly replaced the aforementioned standard of contributory negligence with a

comparative negligence standard. Thus, currently, a plaintiff’s claim of negligence would

still be actionable despite such party’s partial comparative negligence. Lines v. Ashtabula

Area City School, 11th Dist. No. 2003-A-0062,

; Miller v. Wayman,

11th Dist. No. 2012-G-3057,

, ¶43.

{¶38} In the case at bar, one could conclude the darkness is not necessarily

dangerous, but common or expected because it is a movie theater. That is, a person’s

step into darkness may be reasonable based on the facts and circumstances of the case:

“In some places one expects to find darkness, so darkness is not always unusual and not

always a warning of danger.” Hissong, 2010–Ohio–961, ¶ 39,

,

. “A person does not act negligently by failing to look for danger where she

has no reason to expect it, or where she has reason not to expect it.” (Emphasis sic.)

Miller v. Wayman, 11th Dist. No. 2012-G-3057, 2012-Ohio05598, ¶ 46.

{¶39} However, Appellant testified in her deposition as follows, Delaware County, Case No. 18 CAE 06 0042 15

Yes, I was up the steps and in the dark because they didn’t have any

lights on and when I reached the top of the steps, I stepped down to take -

- going to the seats and that’s when I fell. (Depos. at 14).

***

There was no step there when I stepped. (Depos. at 20).

***

Q. When you looked down did you see the step?

A. Yes. I saw a step and I stepped on it. I thought I saw a step and

stepped on it and I was just tumbling and tumbling trying to stop myself.

(Depos. at 26).

{¶40} It does not appear the Appellant encountered a “defect” but “missed a step,”

allegedly because of the darkness. Thus, even if she was not negligent in entering the

darkness of the theater, Appellant points to no evidence that a defect in the theater

caused her to fall. There is no evidence that a step was missing or that the steps were in

any way defective. There is no evidence that a special aspect of the step made it

unreasonably dangerous. Upon realizing the extent of the darkness, Appellant did not

ask for assistance to her seat from her daughter or anyone else. Appellant was familiar

with the theater and the steps to the balcony area.

{¶41} Accordingly, because I would find that no evidence of a defect in the theater

caused Appellant’s fall, I concur in the majority’s disposition of Appellant’s two

assignments of error.