Gilliam v. Rucki

[Cite as Gilliam v. Rucki, 2023-Ohio-1413.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Dale L. Gilliam Court of Appeals No. L-22-1107
Appellant Trial Court No. CI0202101301
v.
Cynthia Rucki DECISION AND JUDGMENT
Appellee Decided: April 28, 2023
*****
James L. Murray and William H. Bartle, for appellant
John A. Rubis and Jonathon Angarola, for appellee
*****
OSOWIK, J.
{¶ 1} In this premises liability action, the plaintiff-appellant, Dale Gilliam, appeals
an April 14, 2022 judgment of the Lucas County Court of Common Pleas, which granted
summary judgment in favor of the defendant-appellee, Susan Rucki. As set forth below,
we affirm.
I. Background and Facts
{¶ 2} This case arises from an injury sustained by Gilliam while in defendant’s
Toledo home on October 19, 2019. Gilliam is a self-employed contractor and was hired
by defendant to service a bathtub that did not have hot water.
{¶ 3} According to the complaint, upon arriving at defendant’s home, Gilliam
“was shown into” the first-floor bathroom. Gilliam alleges that, while he was inspecting
the bathtub valve, the defendant “entered the bathroom and removed a crawl space hatch
or cover immediately next to the bathtub with no notice or warning.” When Gilliam
finished inspecting the valve, he “turned and fell into the 6 foot deep crawl space.” As a
result of the fall, Gilliam suffered multiple rub fractures and a knee injury. Gilliam
claims that he was unaware that defendant had opened up the hatch and “was given no
warning that [she] was planning to do so.” In his sole claim for relief, Gilliam alleges
that Rucki was negligent in failing to warn or notify him that “she was going to remove”
the hatch door and that, as a direct and proximate result of her negligence, he was injured.
{¶ 4} After filing an answer and conducting discovery, defendant moved for
summary judgment. Defendant’s motion was based on Gilliam’s deposition testimony
and the opinion of her expert witness, Richard Kraly, a licensed architect. Defendant
argued that the “large crawl space area” was an open and obvious hazard that obviated
any duty to warn Gilliam. Alternatively, defendant argued that, even if she owed a duty
to Gilliam, his claim would still fail as a matter of law, because his negligence—“in not
paying attention as he traversed [the] bathroom”—outweighed any negligence by her.
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{¶ 5} Gilliam moved to strike the expert’s affidavit and report. Gilliam argued
that Kraly’s conclusions were based upon hearsay statements from defendant and further
that Kraly had rendered an opinion “on a legal issue reserved for judicial determination,”
specifically that the hazard was open and obvious. Gilliam also objected to defendant’s
motion for summary judgment.
{¶ 6} By judgment dated April 14, 2022, the trial court found Gilliam’s motion to
strike well-taken, in part. It indicated that it would “disregard any hearsay, legal opinions
or legal conclusions” made by Kraly and would “only consider that which is properly
before the court.” In that same judgment, the trial court granted defendant’s motion for
summary judgment, dismissing Gilliam’s case. Gilliam appealed and assigns two errors
for our review:
A. The trial court erred in granting summary judgment in favor of
the defendant in its 4-13-2022 opinion and order, finding the open and
obvious doctrine applied because plaintiff witnessed defendant removing
the hatch and concluding alternatively that plaintiff’s own negligence
outweighed any negligence attributable to the defendant.
B. The trial court erroneously reached these conclusions by failing to
construe the evidence in the light most favorable to the plaintiff. Assuming
a conflict between plaintiff’s interrogatory answers and his deposition
testimony, the trier of fact must weigh all the answers and resolve the
conflict. The plaintiff did not witness defendant removing the hatch.
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II. Summary Judgment
{¶ 7} Appellate review of a trial court’s decision to grant summary judgment is de
novo. Chalmers v. HCR ManorCare, Inc., 6th Dist. Lucas No. L-16-1143, 2017-Ohio-
5678, ¶ 21; Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, 936
N.E.2d 481, ¶ 29. Pursuant to Civ.R. 56(C),
Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed
in the action, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law. No
evidence or stipulation may be considered except as stated in this rule. A
summary judgment shall not be rendered unless it appears from the
evidence or stipulation, and only from the evidence or stipulation, that
reasonable minds can come to but one conclusion and that conclusion is
adverse to the party against whom the motion for summary judgment is
made, that party being entitled to have the evidence or stipulation construed
most strongly in the party's favor.
Id.; See also Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375
N.E.2d 46 (1978).
{¶ 8} When seeking summary judgment, a party must specifically delineate the
basis upon which the motion is brought and identify those portions of the record that
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affirmatively demonstrate the absence of a genuine issue of material fact—not the
reliance on conclusory assertions that non-movant has no evidence to prove its case—
regarding an essential element of the non-movant’s case. Beckloff v. Amcor Rigid
Plastics USA, LLC, 6th Dist. Sandusky No. S-16-041, 2017-Ohio-4467, ¶ 14. When a
properly supported motion for summary judgment is made, an adverse party may not rest
on mere allegations or denials in the pleadings, but must respond with specific facts
showing that there is a genuine issue of material fact for trial in accordance with Civ.R.
56(E). Id. A “material” fact is one which would affect the outcome of the suit under the
applicable substantive law. Id.III. Premises Liability Law
{¶ 9} Premises liability is a form of negligence, which generally requires the
plaintiff to establish: (1) a duty of care by the defendant to the plaintiff (2) breach of that
duty, and (3) injury caused directly and proximately resulting from the breach.
Mussivand v. David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989). Whether or not a
duty exists is a question of law for the court. Id. There is no formula for whether a duty
exists as a matter of law. Id. Appellate review of a question of law is de novo. Sanborn
v. Hamilton Cty. Budget Comm., 142 Ohio St.3d 20, 2014-Ohio-5218, 27 N.E.3d 498, ¶
3.
{¶ 10} The duty that an owner or occupier of premises owes to one who is injured
on those premises is governed by the relationship between the parties. Light v. Ohio
University, 28 Ohio St.3d 66, 67, 502 N.E.2d 611 (1986). “That relationship will fall into
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one of three categories: invitee, licensee, or trespasser.” Turner v. Cathedral Ministries,
6th Dist. Sandusky No. S-14-020, 2015-Ohio-633, ¶ 10 (6th Dist.). A business invitee is
an individual who is “rightfully on the premises of another for purposes in which the
possessor of the premises has a beneficial interest.” (Citation omitted.) Clark v. BP Oil,
6th Dist. Lucas No. L-04-1218, 2005-Ohio-1383, ¶ 10. “A business owner ordinarily
owes its invitees a duty of ordinary care in maintaining the premises in a reasonably safe
condition and has the duty to warn its invitees of latent or hidden dangers.” Id. In this
case, the parties agree that Gilliam was a business invitee.
{¶ 11} A premises owner is not an insurer of a business invitee’s safety and is
under no duty to protect a business invitee from dangers known to the invitee “‘or are so
obvious and apparent to such invitee that he may reasonably be expected to discover [the
dangers] and protect himself against them.’” Paschal v. Rite Aid Pharmacy, Inc., 18
Ohio St.3d 203, 203-204, 480 N.E.2d 474 (1985), quoting Sidle v. Humphrey, 13 Ohio
St.2d 45, 233 N.E.2d 589 (1968), paragraph one of the syllabus.
{¶ 12} The open-and-obvious doctrine concerns the first element of a negligence
claim, namely, whether a duty exists. Armstrong v. Best Buy Co., 99 Ohio St.3d 79,
2003-Ohio-2573, 788 N.E.2d 1088, ¶ 5, 8. If the doctrine applies, it “obviates the duty to
warn and acts as a complete bar to any negligence claims.” Id. “A hazard is considered
to be open and obvious when it is in plain view and readily discoverable upon ordinary
inspection.” Miller v. First Internatl. Fid. & Trust Bldg., Ltd., 6th Dist. Lucas No. L-08-
6.
1187, 2009-Ohio-6677, ¶ 68. As explained by this court in Semprich v. Cty. of Erie, 6th
Dist. Erie No. E-12-070, 2013-Ohio-3561,
Courts must consider whether the object or danger itself was
observable. Even when an invitee does not actually see the object or
danger until after he or she falls, no duty exists when the invitee could have
seen the object or danger if he or she had looked. The issue of whether a
risk was open and obvious may be decided by the court as a matter of law
when only one conclusion can be drawn from the established facts. But,
where reasonable minds could reach different conclusions as to the
obviousness of the risk, the issue should be resolved by a jury.
Id. ¶ 12.
A. The trial court opinion
{¶ 13} The trial court found that defendant owed no duty to warn Gilliam because
the hazard posed by the floor opening was “open and obvious.” It said,
The opening was large enough that [Gilliam] fell through it. There
is no indication that the crawl space was open when Plaintiff entered the
bathroom. Rather, after entering and while inspecting the bathtub,
[Gilliam] witnessed Defendant removing the hatch on the floor. There is
no evidence that the area was then covered up creating a hidden danger.
There is no evidence of obstructions to his view. If Plaintiff had looked, he
would have seen the opening of the crawl space before he fell into it. He
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knew the space was open. * * * Defendant did not breach any duty owed to
Plaintiff. (J.E. at 5).
B. The floor opening was an open and obvious hazard.
{¶ 14} In his first assignment of error, Gilliam challenges the trial court’s
application of the open and obvious doctrine to his case. He further complains—in his
second assignment of error—that the trial court failed to construe the evidence in the light
most favorable to him. We review the arguments together, but first we review the
evidence in this case.
{¶ 15} Gilliam testified that, as the problem was described to him, he suspected
that the valve servicing the tub was likely faulty. So, upon entering the bathroom,
Gilliam looked for the valve, which he easily spotted “on the left side wall in the back” of
the bathroom. Gilliam estimated that the distance between the entryway of the bathroom
to the valve was “[a]bout 4 feet.”
{¶ 16} As Gilliam walked to the tub and valve, he walked over a bathroom rug.
During his deposition, Gilliam testified that, in retrospect, he “had to have” traversed
over the trap door, but—because it was covered by a rug—he had no knowledge of it.
{¶ 17} Once he reached the tub, Gilliam began to examine the valve. Gilliam
straddled the tub by putting his right foot in the tub, his left foot on the floor outside the
tub, and sat “on the edge.” This exchange followed:
Q. How long did it take you to look * * * at the valve?
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A. Just a few seconds.
Q. While you were looking at the valve, did you hear anything
behind you * * * or to your left side of you to indicate something had
changed in the bathroom?
A. * * * I heard [a] racket or something going on. I don’t know
what it was. I was concentrating on the valve, on the job she hired me to
do.
Q. To your knowledge, * * * was [she] in the vicinity while you
were looking at the tub?
A. She [led] me into the bathroom. At one point she was ahead of
me. She stepped to the side to let me get in the tub, and that’s when I seen
she lifted the top off.
Q. Now were you having conversations with her while you were
looking at the valve?
A. No. I just [examined] * * * what the valve looked like so if I was
to replace it, like I said, it was similar to what she had.
Q. All right. So after you fiddle with the water a bit to confirm there
was no hot water and get the * * * maker’s mark [of the valve] * * * what
happened next?
A. I got off the edge of the tub to walk out and stepped into a hole.
Q. All right. Where was the hole in relation to the tub?
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A. I would say about three feet.
Q. Three feet away from it?
A. Roughly, yes.
Q. Did you have to walk three feet before you fell into the hole?
A. I would say one step I took and down I went.
Q. To be clear, you did not have to step over the hole before you got
to the bathtub, is that correct?
A. Correct.
Q. To the best of you recollection, that cover or that hole, that was
there when you climbed into or straddled the tub?
A. Yes. I walked across it. Had to have been. She had rugs down.
The first I noticed there were rugs on the floor, which being a plumber - -
no offense to your client - - that’s sort of the health indicator of the
bathroom. If you see a rug, it’s generally going to be somewhat dirty
because rugs and bathrooms in my mind aren’t a good mix. I noticed the
rug at the tub, walked across the floor, and looked at the tub.
Q. Got it. You recall walking over or stepping on or over a rug, is
that correct?
A. Yes.
Q. Do you remember what the rug looked like?
A. Green, kind of off 70s green.
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Q. Okay. When you fell into the hole, tell me what happened. What
happened to your body?
A. Well, I got like just a supercharge of energy in my chest [like]
what’s going on, because there’s nothing there, you know, and before you
know it I’m on the side trying to pull myself out. It just happened so fast.
Really nothing to think about other than: what’s going on?
Q. Right. Was she right there within the vicinity, my client?
A. No, she wasn’t.
Q. What happened next?
A. I pulled myself out of the hole and laid on the floor and asked her
- - she came running. She heard me. I asked her to call 911, which she did.
Q. Did you have any conversations with her there at the scene
regarding what happened involving the hole in the bathroom.
A. Well, she repeatedly said: I should have never opened it was
what come out of her mouth at least three times during the whole incident.
Q. * * * Do you know why she opened the crawl space?
A. I have no idea. (Gilliam Depo. at 20-24).
{¶ 18} There is no disagreement that the hazard in this case, i.e. the hole, was
“created after [Gilliam] entered” the bathroom. (Gilliam’s Brief at 8; emphasis added).
Indeed, the only real dispute is whether Gilliam saw defendant remove the hatch. Again,
the trial court found—based upon his deposition testimony—that Gilliam “witnessed
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Defendant remov[e] the hatch” and therefore “knew the space was open.” Gilliam insists
that neither is true. That is, he denies that he “saw” or “knew” that defendant had
removed the hatch, until he stepped into the hole. He maintains that the evidence
supports that conclusion, specifically his response to Interrogatory No. 19, in which he
asserted that defendant “removed [the] hatch * * * unbeknownst to me.” (Emphasis
added.) Gilliam contends that a “fair reading” of his “entire deposition * * * in
conjunction with his answer to Interrogatory No. 19” establishes that, at most, he “heard
a racket” behind him but “[didn’t] know what it was.” On appeal, Gilliam argues that the
trial court failed to view the evidence in the light most favorable to him, specifically
because it did not consider his interrogatory response and more broadly because it failed
to resolve any conflict, as to whether he observed defendant remove the trap door—in his
favor.
{¶ 19} As set forth below, we find that, even if the trial court failed to construe
evidence on that particular point in Gilliam’s favor, any such error was harmless because,
whether or not Gilliam observed the hatch being removed is not a material fact. That is,
whether or not Gilliam saw defendant remove the trap door, he concedes that it was
removed and the hole was observable, before he “turned to walk away from the tub”
toward the door. He further concedes that the hole was not hidden, concealed from
view, or undiscoverable. Moreover, Gilliam does not allege that there were any
distractions that diverted his attention away from the opening in the floor. Indeed, he
specifically denied that he was engaged in conversation with the defendant or that
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defendant was even in the vicinity of the bathroom at the time. Again, the only
conclusion that can be drawn is that, from the time defendant “turned” from the tub and
proceeded to walk the “three feet” between the tub and the hole, there was nothing that
contributed to Gilliam’s fall, other than his failure to notice it.
{¶ 20} “Open-and-obvious hazards are those hazards that are not concealed and
are discoverable by ordinary inspection.” Lykins v. Fun Spot Trampolines, 172 Ohio
App.3d 226, 2007-Ohio-1800, 874 N.E.2d 811, ¶ 24 (12th Dist.); see also, Shipman v.
Papa Johns, 3d Dist. Shelby No. 17-14-17, 2014–Ohio–5092, ¶ 22 (“Open-and-obvious
dangers are those not hidden, concealed from view, or undiscoverable upon ordinary
inspection[.]”). The facts establish that, although Gilliam may not have seen the hole,
nothing prevented it from being seen. Thus, we agree with the trial court that the hole
was not “covered up” or “obstruct[ed]” and that “if [Gilliam] had looked, he would have
seen the opening of the [hole] before he fell into it.” These facts are material to whether
the hazard was open and obvious, not Gilliam’s awareness. Accord Howard v. Meat City
Inc., 3d Dist. Allen No. 1-16-32, 2016-Ohio-7989, ¶ 19 (Hole in asphalt parking lot was
open and obvious where the plaintiff admitted that she could have seen the hole had she
looked. “The fact that [plaintiff] was not looking at the pavement does not alter the
condition from being open and obvious.”).
{¶ 21} In a strikingly similar case, the plaintiff-electrician was called to a farm to
service an electrical issue and was injured when he fell into a “well pit.” Williamson v.
Geeting, 12th Dist. Preble No. CA2011-09-011, 2012-Ohio-2849, ¶ 8-10. The electric
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panel was located in a barn, and beneath the electric panel was the “well pit” that
measured two and one-half feet square and five feet deep. Prior to the plaintiff’s visit, the
homeowner had removed the floor boards that covered the well pit on the assumption that
access to a pump located in the pit would be necessary. Upon entering the barn, the
plaintiff spotted the electric panel on the wall, which he estimated was about ten feet
from the entryway. As he walked toward the panel, he fell into the hole. In affirming
summary judgment in favor of the homeowner, the court of appeals found that “[t]he
record indicates the open well pit was in plain view, observable to the naked eye and was
observable to [the electrician] had he looked where he was walking. Therefore,
reasonable minds could only conclude that the open well pit was an open and obvious
hazard.” Id. at ¶ 20.
{¶ 22} Conversely, the facts in the instant case are unlike those in Sabitov v.
Graines, 177 Ohio App.3d 451, 2008-Ohio-3795, 894 N.E.2d 1310 (8th Dist), where a
customer fell though an open trapdoor, located in the floor of a deli. The trapdoor was
attached to a ladder that led to a basement, and the customer died when she fell into the
opening. The court of appeals found that an issue of fact existed as to whether the
opening in the floor was an open and obvious danger, in part, because the record
evidence indicated that the trapdoor was a hidden hazard that was “not visible as a person
walks through the corridor towards the toilet facility.” Likewise, in Hill v. Mullins, 2d
Dist. Montgomery No. 27127, 2017-Ohio-1302, a contractor was touring a home under
renovation. Prior to the tour, the homeowners had removed two walls and a doorway,
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that had enclosed a staircase leading to the basement. A third wall was kept in place. The
contractor was injured when she stepped around the remaining wall and “stepped into the
opening in the floor.” According to the contractor’s testimony, she would not have seen
the hole, even if she had been looking, “due to the [remaining] wall and [the
homeowner’s] presence immediately in front of her.” Id. at ¶ 6. The appellate court
found that, although the hole may have been “prominent” and “observable,” the plaintiff
approached the opening in the floor “from a direction in which the hole might have been
obscured by the wall alongside it.” The court found that these circumstances presented a
genuine issue of material fact as to whether the hole was open and obvious from the
plaintiff’s vantage point. Accord, Asher v. Glenway Real Estate, LLC, 1st Dist. Hamilton
No. C-180663, 2019-Ohio-4851, ¶17 (“Once the hazard [was] discovered, the invitee
[had] already encountered it [which] as a matter of law [necessitates a finding that] the
hazard encountered by [the plaintiff] was not open and obvious.”); Rice v. Kroger, 6th
Dist. Lucas No. L-19-1175, 2020-Ohio-2654, ¶ 15 (“Reasonable minds could disagree
whether an empty pallet located next to a produce bin would be hidden from view until a
patron was nearly upon it and whether it was readily apparent to a reasonable patron in
the process of shopping who was traveling in the same direction as the [plaintiff].”)
{¶ 23} Gilliam urges the court not to apply the open and obvious doctrine, under
the authority of Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 597 N.E.2d 504(1992) because, he argues, the defendant in that case and in the instant case were
responsible for creating the dangerous condition. In Simmers, the Ohio Supreme Court
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held that “an independent contractor who creates a dangerous condition on real property
is not relieved of liability under the doctrine which exonerates an owner or occupier of
land from the duty to warn those entering the property concerning open and obvious
dangers on the property.” Id. The court concluded that because the defendant “had no
property interest” in the premises where the plaintiff was injured, ordinary negligence
law applied. Given that the defendant herein is the property owner, we find that Simmers
does not apply.
{¶ 24} “The relevant issue [in these cases] is not whether an individual observes
the condition, but whether the condition is capable of being observed.” (Citations
omitted.) Hill at ¶ 15. Here, because the hole was not obscured and was capable of being
observed by Gilliam, we find that there is no genuine issue of material fact that the
hazard, created by the removal of the trap door, was an open-and-obvious danger.
IV. Comparative Negligence
{¶ 25} In its decision, the trial court also found that “[Gilliam’s] own negligence
outweighs any purported duty attributable to the Defendant.” (J.E. at 5). Gilliam
argues—also in his first assignment of error—that the issue of comparative negligence is
an issue of fact for the jury to resolve, specifically, as to whether his negligence was
greater than defendant’s.
{¶ 26} Where the issue of duty and its breach are firmly established, the issue of
comparative negligence “arguably comes within the domain of the jury.” Trutza v.
Cleveland, 102 Ohio App.3d 371, 376–77, 657 N.E.2d 327 (8th Dist.1995), citing
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Simmers at 645. However, our finding in this case—that defendant did not owe a duty of
care to Gilliam—renders the issue of comparative negligence moot. Tipton v. Bernie’s
Elec. Sales & Service, Inc., 6th Dist. Williams No WM-03-021, 2004-Ohio-5249, ¶ 42;
see also Williams v. Ohio Dep’t. of Rehab. & Corr., 10th Dist. Franklin No 04AP-1193,
2005-Ohio-2669, ¶ 16 (“Because ODRC owed no duty, plaintiff’s second assignment of
error, addressing the comparative negligence conclusion of the Court of Claims, is
rendered moot.”). Because we find that there was no duty on the part of defendant, the
issue of comparative negligence is moot.
{¶ 27} Finally, Gilliam complains that the trial court improperly considered the
“legal opinions and credibility determinations” rendered by defendant’s expert, Peter
Kraly. Gilliam did not assign this issue as an error for our review. Under App.R.
12(A)(1)(b), an appellate court must determine an appeal based on the assignments of
error set forth in the briefs. See, e.g., State v. Roberson, 6th Dist. Lucas No. L-16-1131,
2017-Ohio-4339, ¶ 103. An appellate court rules on assignments of error only, and
cannot address mere arguments. Id. Accordingly, because Gilliam did not assign as error
the trial court’s purported consideration of Kraly’s legal opinions and credibility
determinations, we decline to address his argument. We do note that that trial court
specified in its final judgment that it disregarded “any hearsay” and “legal opinions or
legal conclusions made by [Kraly].” Gilliam points to no evidence that the trial court did
otherwise.
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V. Conclusion
{¶ 28} Because we find that the opening in the floor was an open and obvious
danger, defendant had no duty to warn Gilliam of the hazard in this case. Accordingly,
we find that the trial court’s grant of summary judgment in favor of the defendant was
appropriate. In light of our finding, Gilliam’s claim, regarding comparative negligence,
is moot, and we decline to address it. For these reasons, we find Gilliam’s first and
second assignments of error not well-taken.
{¶ 29} The judgment of the Lucas County Court of Common Pleas is affirmed.
Gilliam is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Gene A. Zmuda, J.
____________________________
Myron C. Duhart, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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