Gibbs v. Mark Porter Autoplex, Inc. , 2023 Ohio 3460 ( 2023 )

[Cite as Gibbs v. Mark Porter Autoplex, Inc., 2023-Ohio-3460.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
MEIGS COUNTY
Dianna L. Gibbs, : Case No. 23CA3
Plaintiff-Appellant-Cross-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
Mark Porter Autoplex, Inc., et al., :
Defendants-Appellees- : RELEASED 9/25/2023
Cross-Appellants.
______________________________________________________________________
APPEARANCES:
Jeffrey L. Finley, Esq., Finley & Eachus, Attorneys at Law, Gallipolis, Ohio, for
appellant/cross-appellee.
Trent M. Thacker, Cury Roby, LLC, Columbus, Ohio, for appellees/cross-appellants.
______________________________________________________________________
Hess, J.
{¶1} Dianna L. Gibbs appeals and Mark Porter Autoplex, Inc., Mark Porter
Autogroup, Inc.,1 and Porter Pomeroy, LLC (collectively, “appellees”) cross-appeal from
a judgment of the Meigs County Court of Common Pleas granting the appellees’ motion
for summary judgment in a negligence action. Gibbs presents one assignment of error
asserting that the trial court erred in granting the motion. For the reasons which follow,
we overrule her sole assignment of error and affirm the trial court’s judgment. This
decision renders moot the appellees’ cross-assignment of error, which asserts that the
trial court properly granted summary judgment but did so for the wrong reason.
1 Appellees refer to this party as Mark Porter Auto Group, Inc. We refer to it using the spelling in the caption
of the complaint.
Meigs App. No. 23CA3 2
I. FACTS AND PROCEDURAL HISTORY
{¶2} In April 2022, Gibbs re-filed a complaint against the appellees.”2 The
complaint alleged that Porter Pomeroy, LLC, and Mark Porter Autoplex, Inc. “were in
control, possession, and/or were the owners” of real property in Pomeroy, Ohio, where
Mark Porter Autoplex, Inc., engaged in the business of buying and selling motor vehicles.
The complaint alleged that on or about June 17, 2018, Gibbs was their “lawful business
invitee,” and while traversing their sales lot, “was caused to encounter a dangerous area
in the pavement, which caused her to fall” and sustain “severe injuries.” The complaint
alleged that Porter Pomeroy, LLC, and Mark Porter Autoplex, Inc. knew about the
dangerous condition and design of the sales lot, that they failed to cure the condition or
warn lawful business invitees like Gibbs of it, and that Gibbs’ injuries were the direct and
proximate result of their negligence. The complaint did not make any specific allegations
against Mark Porter Autogroup, Inc.
{¶3} Depositions were taken of Gibbs, her husband, her son, and Robert Eck,
P.E., Ph.D. Gibbs testified that she went to the Mark Porter Chevy Buick GMC dealership
in Pomeroy, Ohio, with her husband and son because her husband wanted to look for a
new truck there. They arrived at the dealership around 2:00 or 2:30 p.m. Gibbs knew
before they arrived that the dealership would not be open because it was Sunday, so they
could not purchase a vehicle that day. However, she testified that the premises are
always open and that there are no gates or no trespassing signs. She drove up a road
2 The complaint also named as defendants an “unknown corporation” and “unknown limited liability
company” with unknown addresses. The record does not reflect that Gibbs obtained personal service on
these defendants within one year of filing her complaint; therefore, she did not commence an action against
them. See Stubbs v. Sybene Missionary Baptist Church, Inc., 4th Dist. Lawrence No. 20CA9, 2021-Ohio-
3454, ¶ 12.
Meigs App. No. 23CA3 3
on a hill, and there were trucks parked on both sides of the road, facing the road. She
turned around and started driving back down the hill, and her husband asked her to see
if there was a price on a specific truck. She stopped and walked to the driver’s side door
of the truck. She did not see a price, so her husband asked her to look on the passenger
side. She walked to the front of the truck, and from there, she looked for a price on the
passenger side. She “turned to come back,” took a step, her “right foot turned,” and she
fell, sustaining injury.
{¶4} Gibbs testified that the area where the trucks were parked was slightly
higher than the road, that there was a slope between those areas, and that she believed
the slope caused her fall. She thought that when she “walked in front of the truck” and
“took that turn, there wasn’t enough room for [her] to take that step,” and her ankle “turned
on that slope.” Gibbs admitted she had to cross the slope to reach the elevated area
where the truck was. She testified that she did not notice the slope or change in elevation
at that time and “was focusing on the truck.” There was some space between the slope
and truck, and she was “pretty sure” she did not touch the slope when she went to look
at the passenger side of the truck. Gibbs testified that photographs marked as exhibits
accurately depicted the condition of the premises the day she fell except in some
photographs, some vehicles were further back than they were the day she fell. She
testified that the slope and surrounding area was the color of concrete, and there was no
warning paint, yellow striping, or reflectors to warn of the elevation change. However,
she testified that it was a sunny day, that there had been no recent precipitation, that the
slope was not slick, and that nothing was covering the slope.
Meigs App. No. 23CA3 4
{¶5} During Gibbs’ first deposition, appellees’ counsel asked if Gibbs believed
she would have seen the slope if she looked down. Gibbs’ counsel objected and stated,
“That’s speculation. You can answer.” Gibbs testified, “Yeah. If I looked down I would
have probably seen it.” During Gibbs’ second deposition, appellees’ counsel asked, “Do
you remember your last deposition, I don’t want to misquote you, but I believe you told
me that if you had been looking down, you think you would have seen the slope, correct?
Gibbs testified, “Yeah, if I was looking down.”
{¶6} Gibbs’ husband and son did actually not witness her fall but observed the
area where the fall occurred. Gibbs’ husband testified that from inside a vehicle it was
“kind of hard to see, like, a roll like that. It looked like there wasn’t really a clash. It just
looked like it was all together. Your concrete was just, kind of from a distance it looked
more level. You didn’t really notice that slope, that roll. You didn’t notice it.” When asked,
“What about when you’re close up to it? Are you able to appreciate the difference when
you look at it?” he testified, “Well, you might if you was [sic] looking down at it. But if you
was [sic] looking at the wheel of the truck or the hood or trying to see the years, you
wasn’t [sic] really paying any attention to it. Because there was nothing there to bring
your attention to [sic].” Gibbs’ son testified that initially he was not able to see the slope,
but once he got closer to it, he could see the change in elevation.
{¶7} Dr. Eck testified that that he has a Ph.D. in civil engineering with a
specialization in transportation engineering. Dr. Eck created a report setting forth his
opinions, which was marked as an exhibit, and appellees’ counsel questioned him
regarding it. Among other things, the report includes four “Figures,” i.e., photographs of
the premises, and the following statements:
Meigs App. No. 23CA3 5
- “[I]t is clear that this ‘curb’ was not installed for pedestrian use but rather
was put in for the convenience of driving vehicles off of and onto the
display areas.”
- “The curb face at issue is too steep to walk on. The defendants compare
the curb face to a curb ramp at intersection [sic]. This is a false and
misleading comparison since the curb face at issue does not come close
to meeting relevant accessibility criteria. The curb face is not a ‘walking
surface.’ ”
- “[A]s shown in Figure 1, the condition is deceptive since the vehicle
travel way, the rolled curb itself, and the vehicle display area are all the
same uniform concrete gray color. Thus, it is extremely difficult to
distinguish one surface from another and particularly difficult to
determine the slope of the curb.”
- “[A]s illustrated in Figure 2, there is no distinctive color or texture
difference to alert customers to the existence or location of the steeply
sloping curb (single step). Figure 3 illustrates that due to the lack of
contrast, neither the height nor the steepness of the curb can be
perceived from above.”
- “My site inspection and photographs such as Figure 4 indicated that the
slope of the rolled curb is variable, that is, it is not uniform. The fact that
the steepness of the curb varies along its length further complicates the
pedestrian detection process.”
- “There were no cues to emphasize the nature and location of the
steeply-sloped curb and to draw attention to it. Under these
circumstances, it is foreseeable that pedestrians will not detect the curb
and that fall incidents will occur.”
- “A different color and/or texture should have been used for the steeply
sloped curb to make it conspicuous (and distinguishable from the other
surfaces) to pedestrians.”
- “The excessively steep, difficult-to-detect elevation change between the
vehicle travel way and the vehicle display area is not appropriate for car
dealerships where visitors include a wide range of people * * * with
varying physical characteristics and footwear, including those who are
not familiar with the facility.”
- “The fall in question was a direct result of the lack of adequate design,
construction, inspection and maintenance of the interface between the
vehicle travel way and the vehicle display area at this dealership, in
contravention of accepted safety standards and practices.”
Meigs App. No. 23CA3 6
- “Had the dealership used one or more of the safeguards described
herein, in all likelihood this fall would not have occurred.”
Dr. Eck acknowledged that he is not a legal expert, was not testifying about what legal
duty the appellees’ owed, did not know the legal standard in Ohio for determining whether
something is open and obvious, and was not offering an opinion on that topic. Additional
photographs of the premises were marked as exhibits during Dr. Eck’s deposition.
{¶8} The appellees moved for summary judgment. They asserted that Gibbs
was a licensee, so their only duty was to refrain from willfully or wantonly causing her
injury, and there was no evidence that they willfully or wantonly caused Gibbs injury.
Alternatively, they asserted that even if Gibbs was an invitee, they had no duty to her for
two reasons: (1) “the alleged danger of the slope was open and obvious,” and (2) Gibbs
had “constructive knowledge” of it. The appellees also asserted that Mark Porter
Autogroup, Inc. was not a proper party and should be dismissed because it did not own
or operate the premises—Porter Pomeroy, LLC, owned it, and Mark Porter Autoplex, Inc.,
operated it. Gibbs agreed that Mark Porter Autogroup, Inc., was not a proper party and
should be dismissed but opposed a grant of summary judgment to Porter Pomeroy, LLC,
and Mark Porter Autoplex, Inc.
{¶9} The trial court issued an entry on the motion for summary judgment stating
that it had “considered arguments of the parties, affidavits, and transcripts of depositions.”
The court dismissed Mark Porter Autogroup, Inc. “[p]er agreement of the parties” and
granted the summary judgment motion. The court found Gibbs was an invitee but
explained “[t]here is no duty to protect business invitees from hazards which are obvious
Meigs App. No. 23CA3 7
and apparent and hazards which are reasonably expected to be discovered by the
invitee.” The court stated:
The depositions made it clear that the areas and changing levels of
elevations where Plaintiff traversed around a truck were open and obvious.
There was nothing obstructing the view of the change of elevations when
Plaintiff decided to get off the concrete roadway path area of the lot and to
move up the curve to get a closer look at the vehicle; where those vehicles
were parked at the raised elevation. The condition of the ground and
changes in elevation around the truck was [sic] open and obvious and
therefore no duty of care was breached by Defendants. The Plaintiff
successfully negotiated the raised curve while initially stepping up to look at
the truck. It was not reasonably foreseeable that the same person, who
saw the curve and stepped up, would not also see the curve when it
becomes necessary to step down. A review of the depositions and exhibits
cause the Court to find that there was nothing hidden or latently dangerous
in the area around the truck being viewed by Plaintiff.
The testimony and photos demonstrated that the curve was not
unreasonably dangerous, hidden or concealed and was discoverable by
ordinary inspection. The curve or changing of elevation was open and
obvious. Plaintiff had responsibility to exercise due care herself while
walking in the area with the open and obvious curve and rise of elevation.
This appeal and cross-appeal followed.
II. ASSIGNMENTS OF ERROR
{¶10} Gibbs presents one assignment of error:
The trial court erred in granting defendants’ motion for summary judgment.
A. The trial court erred in de facto failing to consider and address the
deposition testimony of Plaintiff’s expert witness Ronald W. Eck.
B. The trial court erred in finding that the open and obvious doctrine applies
to this case.
{¶11} The appellees present one cross-assignment of error:
Although the trial court properly granted summary judgment in favor of
Appellees/Cross-Appellants * * *, the trial court erred in finding Cross-
Appellee to be an invitee instead of a licensee. By incorrectly classifying
Cross-Appellee as an invitee when she was a licensee, the trial court erred
in needing to reach the decision as to whether the alleged hazard was open
Meigs App. No. 23CA3 8
and obvious. Instead, the trial court should have determined no willful or
wanton misconduct led to Cross-Appellee’s injury and entered summary
judgment in favor of Cross-Appellants.
III. LAW AND ANALYSIS
A. Standard of Review
{¶12} We review a trial court’s decision on a motion for summary judgment de
novo. Harter v. Chillicothe Long-Term Care, Inc., 4th Dist. Ross No. 11CA3277, 2012-
Ohio-2464, ¶ 12. We afford no deference to the trial court’s decision but rather conduct
an independent review to determine whether summary judgment is appropriate. Id. “A
summary judgment is appropriate only when: (1) there is no genuine issue of material
fact; (2) reasonable minds can come to but one conclusion when viewing the evidence in
favor of the nonmoving party, and that conclusion is adverse to the nonmoving party; and
(3) the moving party is entitled to judgment as a matter of law.” Hawk v. Menasha
Packaging, 4th Dist. Ross No. 07CA2966, 2008-Ohio-483, ¶ 6.
{¶13} “The party moving for summary judgment bears the initial burden to
demonstrate that no genuine issues of material fact exist and that they are entitled to
judgment in their favor as a matter of law.” DeepRock Disposal Solutions, LLC v. Forté
Prods., LLC, 4th Dist. Washington No. 20CA15, 2021-Ohio-1436, ¶ 68. “To meet its
burden, the moving party must specifically refer to ‘the pleadings, depositions, answers
to interrogatories, written admissions, affidavits, transcripts of evidence, and written
stipulations of fact, if any, timely filed in the action,’ that affirmatively demonstrate that the
nonmoving party has no evidence to support the nonmoving party’s claims.” Id., quoting
Civ.R. 56(C). “Once that burden is met, the nonmoving party then has a reciprocal burden
to set forth specific facts to show that there is a genuine issue for trial.” Id.Meigs App. No. 23CA3 9
B. Consideration of Expert Testimony
{¶14} Gibbs contends the trial court erred in granting the summary judgment
motion because it “erred in de facto failing to consider and address the deposition
testimony” of Dr. Eck. Gibbs maintains that “[i]t is beyond dispute that Dr. Eck is qualified
to give an expert opinion in this case and that the [t]rial [c]ourt should have given
significant weight to Dr. Eck’s opinion.” She acknowledges that the trial court’s summary
judgment entry states that the court considered “transcripts of depositions.” However,
Gibbs asserts that the trial court did not actually take Dr. Eck’s opinions into account. She
emphasizes that the court’s entry “does not specifically mention Dr. Eck’s deposition at
all,” “quote or reference any section of Dr. Eck’s deposition,” or use the word “expert.”
Gibbs cites various portions of Dr. Eck’s report and deposition testimony and asserts that
she presented “overwhelming evidence” that the appellees “were responsible for the
hazardous condition” that caused her fall. She claims there “is no question” she
presented expert testimony which the trial court had to accept as true, which pertained to
the appellees’ liability, and “therefore raised a genuine issue of material fact that
precluded summary judgment in” the appellees’ favor. Thus, she asserts the trial court
“appears to have ignored or disregarded Dr. Eck’s opinions and testimony” and erred in
granting the appellees’ summary judgment.
{¶15} “Civ.R. 56(C) places a mandatory duty on a trial court to thoroughly examine
all appropriate materials filed by the parties before ruling on a motion for summary
judgment. The failure of a trial court to comply with this requirement constitutes reversible
error.” Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 604 N.E.2d 138 (1992), paragraph
one of the syllabus. “Thus, when a deposition is properly filed with the trial court, the
Meigs App. No. 23CA3 10
court must actually read it.” Hudson v. Hapner, 4th Dist. Highland No. 15CA2, 2016-Ohio-
1347, ¶ 22. “Accordingly, when ‘a court has failed to consider a deposition properly before
it in rendering summary judgment it commits error which is, per se, prejudicial and renders
the judgment erroneous as a matter of law.’ ” Id., quoting Kramer v. Brookwood
Retirement Community, 1st Dist. Hamilton No. C-920182, 1993 WL 293413, *2 (Aug. 4,
1993).
{¶16} “ ‘Trial court proceedings generally enjoy a presumption of correctness and
an appellant has the burden to affirmatively demonstrate error.’ ” State v. Smith, 4th Dist.
Gallia Nos. 22CA3, 22CA4, 2023-Ohio-681, ¶ 20, quoting State v. Pettygrove, 4th Dist.
Adams No. 12CA941, 2013-Ohio-1062, ¶ 7. The trial court’s summary judgment entry
explicitly states that the court considered “transcripts of depositions.” The fact that the
court did not specifically mention Dr. Eck’s deposition does not prove the court did not
consider it. In addition, even if we agreed with Gibbs that Dr. Eck’s testimony raised a
genuine issue of material fact which precluded summary judgment in the appellees’ favor,
that also would not prove the court simply failed to consider his testimony. Gibbs has not
affirmatively demonstrated that the trial court failed to consider Dr. Eck’s deposition
testimony. Contrast with Murphy at 359-360 (trial court made statement indicating it “did
not conduct even a cursory review” of the depositions before ruling on summary judgment
motion, and Supreme Court of Ohio remanded to trial court “to conduct a conscientious
examination of the record to determine whether summary judgment is appropriate”);
Hudson at ¶ 23-24 (reversing summary judgment where it did not appear trial court
considered all the depositions because the court made statements indicating it could not
consider uncited parts of depositions, and the court specifically stated that it had reviewed
Meigs App. No. 23CA3 11
certain documents but did not state that it had reviewed the depositions). Thus, we reject
Gibbs’ contention that the trial court erred in de facto failing to consider and address Dr.
Eck’s deposition testimony.
C. Application of the Open and Obvious Doctrine
{¶17} Gibbs also contends that the trial court erred in granting the summary
judgment motion because it “erred in finding that the open and obvious doctrine applies
to this case.” Gibbs asserts that Dr. Eck “presented attendant circumstances that allow
reasonable minds to differ with respect to whether the dangerous condition on [the] car
lot was open and obvious.” Gibbs directs our attention to Dr. Eck’s opinions that the curb
was not installed for pedestrian use, that the curb face does not meet relevant
accessibility criteria, that the curb face is not a walking surface, that the uniform concrete
gray color makes it “extremely difficult to distinguish one surface from another” and
“determine the slope of the curb,” that the height and steepness of the curb cannot be
perceived from above due to the lack of color contrast, and that “it is foreseeable that
pedestrians will not detect the curb and that fall incidents will occur” because there “were
no cues to emphasize the nature and location of the steeply-sloped curb and to draw
attention to it.” She asserts that “Dr. Eck’s deposition testimony and opinion letter are
sufficient to create a genuine issue of material fact as to whether or not the condition on
[the] property that caused [her] to fall was open and obvious.” Therefore, she asserts the
trial court erred in granting the motion for summary judgment.
1. Legal Principles
{¶18} “ ‘A successful negligence action requires a plaintiff to establish that: (1) the
defendant owed the plaintiff a duty of care; (2) the defendant breached the duty of care;
Meigs App. No. 23CA3 12
and (3) as a direct and proximate result of the defendant’s breach, the plaintiff suffered
injury.’ ” Stubbs v. Sybene Missionary Baptist Church, Inc., 4th Dist. Lawrence No.
20CA9, 2021-Ohio-3454, ¶ 16, quoting Allen v. Rankin, 4th Dist. Pickaway No. 12CA10,
2013-Ohio-456, ¶ 21. “ ‘In a premises liability case, the relationship between the owner
or occupier of the premises and the injured party determines the duty owed.’ ” Id. at ¶ 17,
quoting Allen at ¶ 22. “Ohio ascribes to the common-law classifications of invitee,
licensee, and trespasser in cases of premises liability which determines the standard of
care owed to the individual.” Wise v. E. Hall Funeral Home, Inc., 4th Dist. Lawrence No.
21CA6, 2022-Ohio-394, ¶ 13, citing Shump v. First Continental-Robinwood Assocs., 71
Ohio St.3d 414, 417, 644 N.E.2d 291 (1994).
{¶19} The trial court found that Gibbs was an invitee. “A person ‘who rightfully
come[s] upon the premises of another by invitation, express or implied, for some purpose
which is beneficial to the owner’ is an ‘invitee.’ ” (Alteration sic.) Id., quoting Gladon v.
Greater Cleveland Regional Transit Auth., 75 Ohio St. 3d 312, 315, 662 N.E.2d 287(1996). “ ‘A landowner owes an invitee the duty to “exercise ordinary care to render the
premises reasonably safe.” ’ ” Id., quoting Combs v. Ohio Dept. of Natural Resources,
146 Ohio St.3d 271, 2016-Ohio-1565, 55 N.E.3d 1073, ¶ 9, quoting Cincinnati Baseball
Club Co. v. Eno, 112 Ohio St. 175, 147 N.E. 86 (1925), syllabus. “ ‘Keeping the premises
in a reasonably safe condition generally means that a premises owner (1) must not create
a dangerous condition on its premises, and (2) must warn its invitees of latent or
concealed dangers, if the premises owner has actual or constructive knowledge of those
dangers.’ ” Id. at ¶ 14, quoting Ray v. Wal-Mart Stores, Inc., 2013-Ohio-2684, 993 N.E.2d
808, ¶ 18 (4th Dist.).
Meigs App. No. 23CA3 13
{¶20} However, “landowners are not insurers of their invitees’ safety.” Wright v.
Williamsport, 2019-Ohio-2682, 140 N.E.3d 1, ¶ 29 (4th Dist.). “Invitees are expected * *
* to take reasonable precautions to avoid dangers that are patent or obvious.” Id., citing
Brinkman v. Ross, 68 Ohio St.3d 82, 84, 623 N.E.2d 1175 (1993). “Where a danger is
open and obvious, a landowner owes no duty of care to individuals lawfully on the
premises.” Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d
1088, syllabus.
{¶21} The rationale underlying the open and obvious 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.’ ” Id. at ¶ 5, quoting Simmers v.
Bentley Constr. Co., 64 Ohio St.3d 642, 644, 597 N.E.2d 504 (1992). “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.” Id.
at ¶ 13.
{¶22} “ ‘Open and obvious dangers are not hidden, are not concealed from view,
and are discoverable upon ordinary inspection.’ ” Wright at ¶ 29, quoting Zambo v. Tom-
Car Foods, 9th Dist. Lorain No. 09CA009619, 2010-Ohio-474, ¶ 8. “ ‘The determinative
issue is whether the condition is observable.’ ” Id., quoting Kirksey v. Summit Cty. Parking
Deck, 9th Dist. Summit No. 22755, 2005-Ohio-6742, ¶ 11. “[C]ourts that review whether
a danger is open and obvious employ ‘an objective, not subjective, standard.’ ” Id. at ¶
30, quoting Goode v. Mt. Gillion Baptist Church, 8th Dist. Cuyahoga No. 87876, 2006-
Meigs App. No. 23CA3 14
Ohio-6936, ¶ 25. “[T]he question is whether a reasonable invitee would have discovered
the hazard.” Id. Therefore, “ ‘[a] person’s failure to notice an open and obvious condition
until after he or she fell does not vitiate the application of the doctrine.’ ” Wise, 4th Dist.
Lawrence No. 21CA6, 2022-Ohio-394, ¶ 26, quoting Breier v. Wal-Mart Stores, Inc., 6th
Dist. Lucas No. L-08-1327, 2008-Ohio-6945, ¶ 11. And “ ‘ “[a] pedestrian’s failure to avoid
an obstruction because he or she did not look down is no excuse.” ’ ” Id., quoting Breier
at ¶ 11, quoting Lydic v. Lowe’s Cos., 10th Dist. Franklin No. 01AP-1432, 2002-Ohio-
5001, ¶ 16.
{¶23} “In most situations, whether a danger is open and obvious presents a
question of law.” Tarlton v. Logan, 4th Dist. Hocking No. 19CA1, 2019-Ohio-4832, ¶ 23.
“Under certain circumstances, however, disputed facts may exist regarding the openness
and obviousness of a danger, thus rendering it a question of fact.” Id. “ ‘Although the
Supreme Court of Ohio has held that whether a duty exists is a question of law for the
court to decide, the issue of whether a hazardous condition is open and obvious may
present a genuine issue of fact for a jury to review.’ ” Id., quoting Klauss v. Marc
Glassman, Inc., 8th Dist. Cuyahoga No. 84799, 2005-Ohio-1306, ¶ 17. “ ‘Where only one
conclusion can be drawn from the established facts, the issue of whether a risk was open
and obvious may be decided by the court as a matter of law.’ ” Id., quoting Klauss at ¶
18. “ ‘However, where reasonable minds could differ with respect to whether a danger is
open and obvious, the obviousness of the risk is an issue for the jury to determine.’ ” Id.,quoting Klauss at ¶ 18.
{¶24} “ ‘Attendant circumstances,’ for example, may create a genuine issue of
material fact as to whether a hazard is open and obvious.” Id. at ¶ 24. “An attendant
Meigs App. No. 23CA3 15
circumstance is a factor that contributes to the fall and is beyond the injured person’s
control.” Id. “ ‘The phrase refers to all circumstances surrounding the event, such as time
and place, the environment or background of the event, and the conditions normally
existing that would unreasonably increase the normal risk of a harmful result of the event.’
” Id., quoting Cummin v. Image Mart, Inc., 10th Dist. Franklin No. 03AP-1284, 2004-Ohio-
2840, ¶ 8. The phrase has also been defined to encompass “ ‘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.’ ” Id., quoting McGuire v. Sears,
Roebuck & Co., 118 Ohio App.3d 494, 499, 693 N.E.2d 807 (1996). “Ordinarily, ‘the
attendant circumstance must be “an unusual circumstance of the property owner’s
making.” ’ ” Id., quoting Haller v. Meijer, Inc., 10th Dist. Franklin No. 11AP-290, 2012-
Ohio-670, ¶ 10, quoting McConnell v. Margello, 10th Dist. Franklin No. 06AP-1235, 2007-
Ohio-4860, ¶ 17.
2. Analysis
{¶25} Initially, we observe that the parties, trial court, and witnesses used a variety
of terms to describe the area where Gibbs testified that she fell; for the sake of simplicity,
we will refer to this area as the “curb” in our analysis. In this case, the appellees owed
no duty of care to Gibbs because the curb was open and obvious. Gibbs admitted nothing
obstructed her view of the curb prior to her fall, and had she been looking down, she
probably would have seen it.3 Her husband admitted one might be able to see the curb
if one got close to it and looked down. Gibbs’ son admitted that he saw the curb when he
3 Although Gibbs’ counsel objected during Gibbs’ first deposition when appellees’ counsel asked if Gibbs
believed she would have seen the slope if she had looked down, Gibbs does not address the objection in
her appellate brief, and Gibbs’ counsel did not object when appellees’ counsel inquired about the topic
during Gibbs’ second disposition.
Meigs App. No. 23CA3 16
got closer to it. And in viewing the photographs, we find that as a matter of law, the curb
was visible to all persons entering and exiting the vehicle display area. See generally
Armstrong, 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, at ¶ 16 (plaintiff
admitted in deposition that nothing obstructed his view of a guardrail prior to his fall,
plaintiff admitted that he would have seen the guardrail if he had been looking down, and
“in viewing the photographs supplied by both parties,” Supreme Court of Ohio found “as
matter of law” that the guardrail “was visible to all persons entering and exiting” the
defendant’s store and thus “presented an open-and-obvious danger”). The curb was
observable even though it is harder to discern in some photographs due to the poor quality
of the images. The curb was not hidden, was not concealed from view, and was
discoverable upon ordinary inspection.
{¶26} Dr. Eck’s opinions did not preclude the trial court from applying the open
and obvious doctrine. We see no connection between the issue whether the curb was
open and obvious and Dr. Eck’s opinions that the curb was not installed for pedestrian
use, that the curb face does not meet relevant accessibility criteria, and that the curb face
is not a walking surface. Dr. Eck’s opinion that the uniform concrete gray color makes it
extremely difficult to distinguish one surface from another and determine the slope of the
curb and opinion that the height and steepness of the curb cannot be perceived from
above due to the lack of contrast do not create a genuine issue of material fact. Dr. Eck
specifically testified that he was not offering an opinion on whether the curb was open
and obvious. Moreover, the curb was open and obvious even if its exact height and slope
could not be determined. See generally Ryan v. Guan, 5th Dist. Licking No.
2003CA00110, 2004-Ohio-4032, ¶ 12 (“hazard presented by the slope was open and
Meigs App. No. 23CA3 17
obvious, even though the exact degree of the slope was unknown,” because “[b]usiness
invitees entering the premises could ascertain the ramp was sloped”). Finally, even if, as
Dr. Eck opined, it is foreseeable that pedestrians will not detect the curb and fall due to a
lack of cues drawing attention to it, the foreseeability of falls is a separate issue from
whether the curb was open and obvious.
{¶27} There is no genuine issue of material fact. When viewing the evidence in
favor of Gibbs, reasonable minds could only conclude that the curb was open and obvious
and that no attendant circumstances rendered it less than open and obvious. Thus, we
reject Gibbs’ contention that the trial court erred in finding that the open and obvious
doctrine applies to this case. We do not reach the argument raised by appellees that any
purported misapplication of the open and obvious doctrine is irrelevant because the grant
of summary judgment was supported by an alternate ground which Gibbs did not appeal.
D. Conclusion
{¶28} For the foregoing reasons, we reject Gibbs’ contention that the trial court
erred in granting the summary judgment motion because it erred in de facto failing to
consider and address Dr. Eck’s deposition testimony and erred in finding that the open
and obvious doctrine applies to this case. Because the curb was open and obvious, the
appellees had no duty to Gibbs, and they were entitled to judgment as a matter of law.
Accordingly, we overrule Gibbs’ sole assignment of error and affirm the trial court’s
judgment. This decision renders moot the cross-assignment of error, so we do not
address it. App.R. 12(A)(1)(c).
JUDGMENT AFFIRMED.
Meigs App. No. 23CA3 18
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Meigs
County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.