Shipman v. Papa John's , 2014 Ohio 5092 ( 2014 )

[Cite as Shipman v. Papa John's , 2014-Ohio-5092.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SHELBY COUNTY
SANDRA K. SHIPMAN,
PLAINTIFF-APPELLANT, CASE NO. 17-14-17
v.
PAPA JOHN’S, ET AL., OPINION
DEFENDANTS-APPELLEES.
Appeal from Shelby County Common Pleas Court
Trial Court No. 13CV000117
Judgment Affirmed
Date of Decision: November 17, 2014
APPEARANCES:
Matthew D. Bruder for Appellant
Christopher W. Carrigg for Appellee, S & D Limited
Edward J. Dowd for Appellee, PJ Ohio LLC dba Papa John’s
Case No. 17-14-17
SHAW, J.
{¶1} Plaintiff-appellant Sandra K. Shipman (“Shipman”) appeals the May
21, 2014 judgment of the Shelby County Common Pleas Court granting summary
judgment in favor of defendant-appellee PJ Ohio LLC dba Papa John’s (“Papa
John’s”) and defendant-appellee S&D Limited (“S&D”).
{¶2} The facts relevant to this appeal are as follows. On October 12, 2011,
Shipman ordered a pizza from Papa John’s in Sidney, Ohio. She then drove to the
store, parked in the lot, exited her vehicle and walked around the front of the
vehicle into the store to pick up her pizza. After getting her pizza, she left the
store with the pizza in one hand and her keys in the other and walked toward her
vehicle. As Shipman came around her vehicle, she tripped on an uneven area in
the concrete in the parking lot and fell. Among her injuries from the fall Shipman
sustained a shattered hip, a broken femur, torn tissue and ligaments in her knee
and a fractured ankle.
{¶3} On May 30, 2013, Shipman filed a Complaint against Papa John’s and
S&D alleging negligence.1 S&D were the owners of the premises where Shipman
fell, which had been leased to Papa John’s.
1
Shipman’s original complaint listed some improper parties who were ultimately correctly identified as
Papa John’s and S&D as the case proceeded.
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{¶4} On August 1, 2013, Papa John’s filed its Answer, denying that it was
negligent. On August 2, 2013, S&D filed its answer denying negligence, and also
asserting a cross-claim against Papa John’s, contending that if there was any fault,
Papa John’s was responsible for parking lot maintenance under the lease
agreement.
{¶5} As the case proceeded, multiple depositions were taken, beginning
with Shipman. In her deposition, Shipman testified that she arrived at Papa John’s
at approximately 7:30 or 7:40 p.m. to pick up her pizza, and that it was “dusk”
when she arrived. Shipman testified that she did not pull into a designated parking
space when she arrived and that she got out of her car and went into the store.
Shipman testified that she got her pizza and then walked back into the parking lot
toward her vehicle with the pizza in one hand and her keys in the other, but before
reaching her vehicle she tripped over some raised concrete and fell. Shipman
testified that she did not look down when she was walking; rather she was looking
forward at her vehicle. She also testified that after she had fallen, she could
clearly observe the raised concrete she had tripped over. Shipman testified that
she had only been to the Papa John’s to pick up a pizza once previously, some five
years before.
{¶6} Ricky Winals, a former employee of Papa John’s, was also deposed.
Winals testified that he was working as a delivery driver on the evening of
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Shipman’s fall, but he did not see her fall as he was out on a delivery at the time.
Winals testified that he had seen other people trip in the parking lot before, but he
had never seen anyone actually fall. Winals testified that the Papa John’s
employees occasionally mentioned to customers to watch their step if they had
tripped on the way into the store.
{¶7} Winals testified that the parking lot’s condition with the cracks in the
concrete were very obvious to him. In addition, Winals testified that Shipman had
been in to pick up a pizza 3-4 times before, but he did not recall when.
{¶8} A man named John Rowland was also deposed. Rowland testified
that he had been running with a friend when he tripped and fell in the Papa John’s
parking lot in 2006. Rowland testified that he had tripped over some raised
concrete. Rowland testified that he spoke with an attorney and had his unpaid
medical bills ultimately covered, though he was not sure where the money came
from.
{¶9} Gertrude Bushman, a claim representative for Auto Owner’s
Insurance, was also deposed. Bushman testified that her insurance company paid
the claim made by John Rowland back in 2006 in the amount of roughly $576 for
his unpaid medical bills. Bushman also testified that she investigated Shipman’s
fall. Bushman testified that she came out to the parking lot to take pictures and
measurements of the cracks and deviations in the concrete, but was unsure exactly
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where Shipman fell. Bushman testified that she could see open and obvious
cracks and deviations in the concrete in the parking lot when she pulled in.
Bushman testified that she measured the crack where she thought Shipman fell and
determined it was approximately an inch and a half. Bushman testified that the
cracks in the lot were open and obvious.
{¶10} Heather Ford, a former District Manager at Papa John’s was
deposed. Ford testified that she had never received any complaints about Papa
John’s lot and that any deviations in the concrete of the parking lot were obvious.
{¶11} Lastly, David Jones, the owner of the property was deposed. Jones
testified that according to the lease he executed with Papa John’s, Papa John’s was
responsible for maintaining the parking lot and the building. Jones testified that he
did not think that the problems in the parking lot were bad, and that the concrete
merely had cracks in it.
{¶12} On February 7, 2014, Papa John’s filed a motion for summary
judgment on Shipman’s claims asserting that any problems with the concrete were
open and obvious, that the pavement separation was insignificant, trivial and
unsubstantial as a matter of law being that it was less than two inches, and that
there were no attendant circumstances.
{¶13} On February 7, 2014, S&D filed a motion for summary judgment on
Shipman’s claims and on its cross-claim against Papa John’s. S&D also claimed
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that the pavement’s conditions were open and obvious, and that any deviations
were under two inches and therefore precluded liability for both defendants. S&D
also claimed, however, that in the event that liability did exist, under the terms of
the agreement between Papa John’s and S&D, Papa John’s should be held solely
liable.
{¶14} On May 1, 2014, Shipman filed her response arguing that the
condition of the pavement was not open and obvious. Shipman contended that she
did not see the “upheaved” portion of the concrete due to both portions of the
concrete being the same color. Shipman also argued that the parking lot was
dimly lit, making the condition harder to see. In addition, Shipman argued that the
raised concrete was not a “minor imperfection,” contending that Bushman only
measured one of many deviations in the parking lot and that Rowland had testified
in his deposition that some of the deviations were up to four inches.
{¶15} On May 8, 2014, both S&D and Papa John’s filed reply memoranda.
{¶16} On May 21, 2014, the trial court filed its Decision and Judgment
Entry granting the summary judgment motions of S&D and Papa John’s. The trial
court reasoned that the concrete deviations in the parking lot were open and
obvious and that the attendant circumstances alleged by Shipman, that it was dark
outside and the parking lot was dimly lit, did not “relieve Shipman of the
responsibility to watch out for herself.” Thus the trial court granted the summary
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judgment motions against Shipman and dismissed her complaint. In addition, the
trial court found that S&D’s claims against Papa John’s were rendered moot by
the disposition.
{¶17} It is from this judgment that Shipman appeals, asserting the
following assignment of error for our review.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN GRANTING DEFENDANT-
APPELLEES’ MOTION[S] FOR SUMMARY JUDGMENT.
{¶18} In her assignment of error, Shipman argues that the trial court erred
in granting the summary judgment motions of Papa John’s and S&D. Specifically,
Shipman contends that a genuine issue of material fact existed as to whether the
condition that caused Shipman’s injury was open and obvious, and whether there
were attendant circumstances at the time of Shipman’s injuries that sufficiently
increased the danger of the condition.
Standard of Review
{¶19} Appellate review of summary judgments is de novo. Martin v. Giant
Eagle, Inc., 10th Dist. Franklin No. 13AP-809, 2014-Ohio-2657, ¶ 15 citing
Titenok v. Wal–Mart Stores E., Inc., 10th Dist. Franklin No. 12AP–799, 2013–
Ohio–2745, ¶ 6. Summary judgment is proper only when the party moving for
summary judgment demonstrates: (1) no genuine issue of material fact exists, (2)
the moving parties are entitled to judgment as a matter of law, and (3) reasonable
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minds could 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 most strongly construed in its favor. Civ.R. 56; State ex rel.
Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181 (1997).
{¶20} Pursuant to Civ.R. 56(C), the party moving for summary judgment
bears the initial burden of identifying the basis for its motion in order to allow the
opposing party a “meaningful opportunity to respond.” Mitseff v. Wheeler, 38
Ohio St.3d 112, syllabus (1988). The moving party also bears the burden of
demonstrating the absence of a genuine issue of material fact as to an essential
element of the case. Dresher v. Burt, 75 Ohio St.3d 280, 292, 1996-Ohio-107.
Once the moving party demonstrates that he is entitled to summary judgment, the
burden shifts to the non-moving party to produce evidence on any issue which that
party bears the burden of production at trial. See Civ.R. 56(E).
1. Open and Obvious
{¶21} In this case, the parties both agree that Shipman was a business
invitee and that store owners owe business invitees a duty of ordinary care in
maintaining the premises in a reasonably safe condition so that its customers are
not unnecessarily and unreasonably exposed to danger. Paschal v. Rite Aid
Pharmacy, Inc., 18 Ohio St.3d 203 (1985). However, “ ‘[t]he open-and-obvious
doctrine provides that premises owners do not owe a duty to persons entering
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those premises regarding dangers that are open and obvious.’ ” (Emphasis added.)
Pesci v. Miller, 10th Dist. Franklin No. 10AP–800, 2011–Ohio–6290, ¶ 13
(citation omitted). “The rationale underlying this 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.’ ” Hill v. W.
Res. Catering, Ltd., 8th Dist. Cuyahoga No. 93930, 2010–Ohio–2896, ¶ 9 quoting
Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 644, 1992-Ohio-42. “When
applicable, however, the open-and-obvious doctrine obviates the duty to warn and
acts as a complete bar to any negligence claims. * * * 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.” Hill at ¶ 10.
{¶22} In general, “[o]pen-and-obvious dangers are those not hidden,
concealed from view, or undiscoverable upon ordinary inspection[.]” Thompson
v. Ohio State Univ. Physicians, Inc., 10th Dist. Franklin No. 10AP–612, 2011–
Ohio–2270, ¶ 12. However, an individual “does not need to observe the
dangerous condition for it to be an ‘open-and-obvious' condition under the law;
rather, the determinative issue is whether the condition is observable.” Id. at ¶ 12.
Thus, “[e]ven in cases where the plaintiff did not actually notice the condition
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until after he or she fell, [courts have] found no duty where the plaintiff could have
seen the condition if he or she had looked.” Id.
{¶23} In this case, when evaluating the open and obvious arguments of the
parties the trial court found in its judgment entry that,
[t]he evidence is clear that the condition of the parking lot was
readily observable. The fact that it was dusk and the parking lot
was dimly lit was also a condition readily observable.
Additionally, and perhaps most importantly, Shipman traversed
the very section of the parking lot going to the building and so
had ample opportunity to become aware of the parking lot
condition. It was only on her return that she fell. None of the
conditions that may have contributed to the fall were hidden or
latent.
(Doc. 185). We agree with the trial court’s analysis.
{¶24} While Shipman contends on appeal that the concrete deviations were
the same color as the concrete making the deviations difficult to see, the witnesses
deposed who spoke to the condition of the parking lot stated that the cracks and
deviations in the pavement were readily observable. Bushman and Winals even
used the exact term “obvious” when describing how readily observable the
deviations were. (Bushman Depo. at 17); (Winals Depo. at 68). In fact, and
perhaps most conclusively, Shipman herself testified that after she fell, she looked
at the ground and could clearly observe the cracks in the pavement. (Shipman
Depo. at 50, 53).
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{¶25} Moreover, Shipman admittedly had walked into the Papa John’s
without issue and she admittedly had not been looking at the ground as she walked
out, carrying her pizza in one hand and her keys in the other. Shipman testified
that as she walked out of the store she was looking ahead at her vehicle. The fact
that Shipman was not looking at the pavement does not alter the condition from
being open and obvious.
{¶26} Shipman has not produced evidence to rebut the testimony presented
in the various depositions that the condition of the lot was open and obvious. No
witness testified that the cracks or deviations were difficult to see. The fact that
the concrete and the deviations were the same color does not prevent the condition
from being open and obvious, and it did not, in fact, prevent Shipman from readily
noticing the raised concrete when she was actually looking at it. Thus under these
facts we agree with the trial court that the evidence was uncontroverted that the
pavement’s condition was open and obvious. Therefore her argument on this issue
is not well-taken.
2. Attendant Circumstances
{¶27} Shipman next argues that even if the pavement’s condition was open
and obvious, attendant circumstances existed such that the open and obvious
doctrine should not have applied. Specifically, Shipman argued that the parking
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lot was dimly lit and that it was dark outside, increasing the danger of the cracked
pavement.
{¶28} “An attendant circumstance is any significant distraction that would
divert the attention of a reasonable person in the same situation and thereby reduce
the amount of care an ordinary person would exercise to avoid an otherwise open
and obvious hazard.” Haller v. Meijer, Inc., 10th Dist. Franklin No. 11AP–290,
2012-Ohio-670, ¶ 10.
{¶29} To serve as an exception to the open and obvious doctrine, an
attendant circumstance must be “so abnormal that it unreasonably increased the
normal risk of a harmful result or reduced the degree of care an ordinary person
would exercise.” Mayle v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No.
09AP-541, 2010-Ohio-2774, ¶ 20 quoting Cummin v. Image Mart, Inc., 10th Dist.
No. 03AP-1284, 2004-Ohio-2840, ¶ 10. “[A]ttendant circumstances are facts that
significantly enhance the danger of the hazard.” Haller, supra, at ¶ 10.
Furthermore, the attendant circumstance must be an “ ‘unusual circumstance of the
property owner's making.’ ” Id., quoting McConnell v. Margello, 10th Dist. No.
06AP–1235, 2007–Ohio–4860, ¶ 17. “Attendant circumstances do not, though,
include regularly encountered, ordinary, or common circumstances.” Colville v.
Meijer Stores Ltd. Partnership, 2d Dist. Miami No.2011–CA–011, 2012–Ohio–
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2413, ¶ 30, citing Cooper v. Meijer, 10th Dist. Franklin No. 07AP–201, 2007–
Ohio–6086, ¶ 17.
{¶30} In this case, Shipman argues that there were attendant circumstances
in that it was dark—or “dusk” as she testified—and the parking lot was dimly lit.
We would note that many Ohio courts have recognized that darkness is an open
and obvious condition. See, e.g., McDonald v. Marbella Restaurant, 8th Dist.
Cuyahoga No. 89810, 2008–Ohio–3667, ¶ 33; Rezac v. Cuyahoga Falls Concerts,
Inc., 9th Dist. Summit No. 23313, 2007–Ohio–703; Leonard v. Modene and
Assoc., Inc., 6th Dist. Wood No. WD–05–085, 2006–Ohio–5471; Swonger v.
Middlefield Village Apts., 11th Dist. Geauga No.2003–G–2547, 2005–Ohio–941, ¶
13; McCoy v. Kroger Co., 10th Dist. Franklin No. 05AP–7, 2005–Ohio–6965, ¶
16; Godwin v. Erb, 167 Ohio App.3d 645, 652, 2006-Ohio-3638 (5th Dist.). See
also Jeswald v. Hutt, 15 Ohio St.2d 224 (1968), paragraph three of the syllabus
(“[d]arkness is always a warning of danger, and for one’s own protection it may
not be disregarded”). Further, Ohio courts have found that darkness is a naturally
occurring event and thus is not an attendant circumstance. Huey v. Neal, 3d Dist.
Allen No 1-02-79, 2003-Ohio-391, ¶ 12; see also, McCoy v. Kroger Co., 10th
Dist. Franklin No. 05AP-7, 2005-Ohio-6965, ¶ 16. In fact, courts have held that
darkness increases rather than reduces the degree of care an ordinary person
would exercise. McCoy, supra. Thus based on the caselaw we cannot find that
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the fact that it was “dusk” when Shipman fell was an attendant circumstance in
this case circumventing the open and obvious nature of the defects in the
pavement.
{¶31} Lastly, Shipman argues that the parking lot was dimly lit, and that
the dimly lit parking lot was an attendant circumstance. However, Ohio Courts
have found that there is no obligation for a business owner to illuminate the
parking area. Gates v. Speedway Superamerica, L.L.C., 8th Dist. Cuyahoga No.
90563, 2008–Ohio–5131, ¶ 18 (“Speedway did not owe [Plaintiff] a duty to
adequately light the [parking lot] area[.]); Scheetz v. Kentwood, Inc., 152 Ohio
App.3d 20, 11th Dist. Portage No. 2002-P-0043, 2003–Ohio–1209, ¶ 10 (‘because
appellee had no duty to provide lighting in the restaurant parking lot, it could not
have breached any such duty by failing to illuminate its parking lot on the night
[plaintiff] fell’); Meilink v. AAA Northeast Ohio (Dec. 4, 1998), Lucas App. No.
L–98–1139 1998 WL 833570 (no duty to provide adequate lighting even if owner
undertakes to provide some light in parking lot); Collier v. Libations Lounge,
L.L.C., 8th Dist. Cuyahoga No. 97504, 2012-Ohio-2390, ¶20 (“appellees owed no
duty to provide lighting”). Therefore, we cannot find that the dimly lit parking lot
was an attendant circumstance. Nevertheless, we would note that the “dimly lit”
parking lot did not appear to prevent Shipman from readily observing the cracked
pavement once she had fallen and was actually looking at the ground.
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Accordingly, Shipman’s assignment of error is not-well taken and it is therefore,
overruled.
{¶32} For the foregoing reasons Shipman’s assignment of error is overruled
and the summary judgment of the Shelby County Common Pleas Court is
affirmed.
Judgment Affirmed
WILLAMOWSKI, P.J. and ROGERS, J., concur.
/jlr
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