Cash v. Thomas & King, Ltd.

[Cite as Cash v. Thomas & King, Ltd., 2016-Ohio-175.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
MARGARET J. CASH, : OPINION
Plaintiff-Appellant, :
CASE NO. 2015-T-0030
- vs - :
THOMAS & KING LIMITED :
LIABILITY COMPANY #104,
d.b.a. APPLEBEES, et al., :
Defendant-Appellee. :
Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2013 CV
02433.
Judgment: Affirmed.
Walter Kaufmann, Boyd, Rummell, Carach & Curry Co., L.P.A., Huntington Bank
Building, 4th Floor, P.O. Box 6565, Youngstown, OH 44501 (For Plaintiff-Appellant).
Forrest A. Norman, III, Dickie, McCamey & Chilcote, P.C., 2820 Key Tower, 127 Public
Square, Cleveland, OH 44114 (For Defendant-Appellee).
DIANE V. GRENDELL, J.
{¶1} Plaintiff-appellant, Margaret J. Cash, appeals the Judgment of the
Trumbull County Court of Common Pleas, granting defendant-appellee, Thomas and
King, Inc.’s (“Applebee’s”), Motion for Summary Judgment. The issue before this court
is whether darkness and the close proximity of a parking stop or bumper to the curb
constitute attendant circumstances, creating a genuine issue of material fact as to
whether the parking bumper is an open and obvious hazard. For the following reasons,
we affirm the decision of the court below.
{¶2} On December 19, 2013, Margaret J. Cash filed a Complaint in the
Trumbull County Court of Common Pleas against Thomas & King Limited Liability
Company #104, d.b.a. Applebee’s, and a John Doe Company. The Complaint alleged,
in relevant part:
3. On or about May 18, 2012 the Plaintiff was a business
invitee, and customer at the Applebee’s Restaurant. Upon exiting
the building and attempting to traverse the parking lot of the
restaurant to her parked automobile, the Plaintiff tripped and fell
over a concrete barrier which was a part of said parking lot.
4. Plaintiff fell over said barrier as a direct result of an
unreasonably dangerous and defective condition of the parking lot,
namely the placement and design of the parking lot which created a
dangerous obstruction over which invitees were required to pass, of
which the Defendants knew, or with reasonable inspection [could]
have discovered, and which the Defendants did not alleviate.
Further, the Defendants failed to warn the Plaintiff, and other
invitees of said dangerous and defective condition, all of which
constitutes negligence on the part of the Defendants.
5. As a direct and proximate result of the Defendants’
negligence, the Plaintiff sustained injuries to her face, head, neck,
left arm, leg and other parts of her body, all causing great pain and
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suffering of mind and body, extreme emotional distress and
permanent injury.
{¶3} On January 22, 2014, Thomas and King, Inc., improperly named as
Thomas & King Limited Liability Company #104, filed its Answer. By stipulation of the
parties, Thomas and King, Inc. was substituted for the named defendant.
{¶4} On November 24, 2014, Applebee’s filed a Motion for Summary
Judgment.
{¶5} On January 23, 2015, Cash filed her Memorandum Contra Defendant’s
Motion for Summary Judgment.
{¶6} The following evidence was before the trial court:
{¶7} Cash testified by deposition that, on May 18, 2012, she was driven by
Dennis Reisinger, her son-in-law, with her daughter, Lisa Reisinger, to Applebee’s at
Great East Plaza in Niles. Cash sat in the rear passenger seat. Dennis parked in a
handicapped parking space, using her parking sticker. Cash had been to this
Applebee’s “quite often” before the date in question and “almost always” parked in that
handicapped space. Upon exiting the vehicle, Cash walked toward the rear of the
vehicle and around an adjacent landscape island to reach the entrance to the
restaurant.
{¶8} Cash testified that they left the restaurant at about 7:30 p.m. or “dusk.”
Cash followed Lisa and Dennis to the vehicle, this time approaching from the front with
the vehicle on her right and the landscape island on her left: “Dennis and Lisa were in
front of me and I was walking behind them and all of a sudden * * * I did a belly flop and
I landed on my face.” Although she did not recall what made her fall, Cash testified “it
had to have been the curb, the [parking] bumper.” Cash was not looking down at the
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parking lot at the time of her fall and testified that she would have seen the bumper had
she done so.1
{¶9} Lisa testified by deposition that they left the restaurant about 8:00 p.m.
when it was “dark.” Although she did not see her mother fall, she believed that she
tripped on the parking bumper because “that’s the only thing that would have made
sense.”
{¶10} Dennis testified by affidavit that they left the restaurant about 9:30 p.m.: “it
was very dark right where the parking bumper was on the passenger side because the
shadows of the bushes and the car blocked the light from shining over that area.” After
Cash fell, Joel Shields, a manager at Applebee’s, came to the scene. Cash “told him
she tripped over, or fell off, the side of the parking bumper which was protruding out [six
to nine inches] from the front side of the car, and did so because she could not see it.”
When the four of them “looked directly at the area where the bumper was between the
car and the bushes, [they] could not recognize or make out the bumper because it was
so dark.” Attached to Dennis’ affidavit were pictures of the parking bumper and
measurements of the distance between the bumper and the curb.
{¶11} Shields testified by deposition that, when he went to assist Cash, Lisa was
“pointing out * * * the bumper block that’s in between the curb and the parking space
itself,” which extended out beyond the side of the car by about “six to eight inches.”
Shields recalled Cash saying, “there’s no way I could see that.” Shields “made the
comment that with there being shadows on there * * * [he] could see where you would
find it hard to see, especially if you weren’t walking and looking down.” Shields noted
1. Deposition of Margaret Cash: Q. Were you looking down at the parking lot? A. No. Q. If you had
been looking down at the parking lot, do you think you would have seen the parking bumper? A. Yes.
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that “the majority of the lighting at that location is behind and beside the building * * *
more from the general lighting from the mall parking lot.” Attached to Shields’
deposition were pictures of the parking space taken that evening.
{¶12} On March 16, 2015, the trial court granted summary judgment in
Applebee’s’ favor: “The parking bumper which caused Mrs. Cash’s fall was an open and
obvious danger and as such, there is no duty on behalf of Thomas and King as the
premises owner.”
{¶13} On March 30, 2015, Cash filed a Notice of Appeal. On appeal, she raises
the following assignments of error:
{¶14} “[1.] The Trial Court committed prejudicial error in failing to apply the
standard required by Civil Rule 56(C) in its decision granting summary judgment for
Defendant.”
{¶15} “[2.] The Trial Court committed prejudicial error in finding the open and
obvious rule applied to the facts of this case.”
{¶16} Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the
evidence shows “that there is no genuine issue as to any material fact” 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 that
conclusion is adverse to the party against whom the motion for summary judgment is
made, that party being entitled to have the evidence * * * construed most strongly in the
party’s favor.” A trial court’s decision to grant summary judgment is reviewed by an
appellate court under a de novo standard of review. Grafton v. Ohio Edison Co., 77
Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). “Under this standard, the reviewing court
conducts an independent review of the evidence before the trial court and renders a
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decision de novo, i.e., as a matter of law and without deference to the conclusions of
the lower court.” (Citation omitted.) Green Tree Servicing LLC v. Brandt, 11th Dist.
Lake No. 2014-L-137, 2015-Ohio-4636, ¶ 13.
{¶17} “[I]n order to establish actionable negligence, one must show the
existence of a duty, a breach of the duty, and an injury resulting proximately therefrom.”
Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984).
{¶18} “When the alleged negligence occurs in the premises-liability context, the
applicable duty is determined by the relationship between the landowner and the
plaintiff.” Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, 909
N.E.2d 120, ¶ 10. “Business invitees are persons who come upon the premises of
another, by invitation, express or implied, for some purpose which is beneficial to the
owner.” Light v. Ohio Univ., 28 Ohio St.3d 66, 68, 502 N.E.2d 611 (1986). “It is the
duty of the owner of the premises to exercise ordinary care and to protect the invitee by
maintaining the premises in a safe condition.” Id.; Paschal v. Rite Aid Pharmacy, Inc.,
18 Ohio St.3d 203, 480 N.E.2d 474 (1985) (“[a] shopkeeper owes 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”).
{¶19} Cash’s relationship to Applebee’s was that of a business invitee, and so
Applebee’s owed Cash a duty of ordinary care to maintain the premises in a reasonably
safe condition.
{¶20} It has long been the law in Ohio that “[a]n occupier of premises is under no
duty to protect a business invitee against dangers which are known to such invitee or
are so obvious and apparent to such invitee that he may reasonably be expected to
discover them and protect himself against them.” Sidle v. Humphrey, 13 Ohio St.2d 45,
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233 N.E.2d 589 (1968), paragraph one of the syllabus; Armstrong v. Best Buy Co., 99
Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, syllabus (“[w]here a danger is open
and obvious, a landowner owes no duty of care to individuals lawfully on the premises”).
{¶21} Nothing in the record before us suggests that the parking stop or bumper
was inherently dangerous or presented a risk that Cash could not reasonably have been
expected to discover and protect herself against. Without more, the bumper in the
present case presented an open and obvious hazard. Furano v. Sunrise Inn of Warren,
Inc., 11th Dist. Trumbull No. 2008-T-0132, 2009-Ohio-3150, ¶ 18 (“[t]he hazard
presented by a tire stop * * * is so open and obvious that anyone exiting a vehicle which
has just pulled into a parking spot fronted by a tire stop is reasonably expected to take
precautions and negotiate his or her steps around the elevation”); May v. Ruby
Tuesday, Inc., N.D.N.Y. No. 5:13-CV-170, 2014 U.S. Dist. LEXIS 140090 (Oct. 2, 2014),
13-14 (“[g]enerally, ‘[a] wheel stop or concrete parking lot divider which is clearly visible
presents no unreasonable risk of harm’”) (citation omitted).
{¶22} The application of the open and obvious doctrine may be precluded “when
there are ‘attendant circumstances’ surrounding the event that distract the invitee and
reduce the degree of care an ordinary person would otherwise exercise.” Haller v.
Meijer, Inc., 10th Dist. Franklin No. 11AP-290, 2012-Ohio-670, ¶ 10; Daher v. Bally’s
Total Fitness, 11th Dist. Lake No. 2014-L-061, 2015-Ohio-953, ¶ 27 (“the ‘attendant
circumstances’ of a slip and fall may create a material issue of fact as to whether the
danger was open and obvious”) (citation omitted). “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,” thereby “significantly enhanc[ing] the
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danger of the hazard.” Haller at ¶ 10; Daher at ¶ 27 (“attendant circumstances are all
facts relating to a situation such as time, place, surroundings, and other conditions that
would unreasonably increase the typical risk of a harmful result of an event”) (citation
omitted).
{¶23} Cash identifies six such circumstances which she claims render the open
and obvious doctrine inapplicable: “[i]t was night time and dark”; “[o]nly six to nine
inches of the bumper protruded beyond the passenger side of the parked car”; “[t]he
shadows of the parked car on the one side and the bushes in the landscape island
immediately adjacent obscured any artificial light”; “[t]here was no direct artificial light
from the Applebee’s parking lot”; “[t]he bumper was not painted yellow * * * blend[ing]
into the adjacent pavement”; and, since she “exited the car” and “walked to the rear of
the car” upon arrival, she “could not know that the bumper protruded since the car door
obscured the front of the car.” Appellant’s brief at 21-22.
{¶24} Having considered the evidence of record, we find that none of the
circumstances identified by Cash are significant enough to either reduce the degree of
care she was required to exercise for her own safety or enhance the danger of the
hazard.
{¶25} Cash emphasizes that, when the evidence is construed in her favor, it was
so dark that she could not have discerned the hazard even had she been focusing on
the ground before her. The argument, however, that darkness constitutes an attendant
circumstance so as to preclude the application of the open and obvious doctrine has
been consistently rejected by Ohio courts.
{¶26} Darkness, whether naturally occurring or as the result of inadequate
lighting, has been rejected as an attendant circumstance for two principal reasons:
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{¶27} (1) “‘Darkness’ is always a warning of danger, and for one’s own
protection it may not be disregarded.” Jeswald v. Hutt, 15 Ohio St.2d 224, 239 N.E.2d
37 (1968), paragraph three of the syllabus; Swonger v. Middlefield Village Apts., 11th
Dist. Geauga No. 2003-G-2547, 2005-Ohio-941, ¶ 13 (“[s]ince darkness itself
constitutes a sign of danger, the person who disregards a dark condition does so at his
or her own peril”); McCoy v. Kroger Co., 10th Dist. Franklin No. 05AP-7, 2005-Ohio-
6965, ¶ 16 (“darkness increases rather than reduces the degree of care an ordinary
person would exercise”); Shipman v. Papa John’s, 3rd Dist. Shelby No. 17-14-17, 2014-
Ohio-5092, ¶ 30 (“many Ohio courts have recognized that darkness is an open and
obvious condition”) (cases cited); Gibbs v. Speedway LLC, 2014-Ohio-3055, 15 N.E.3d
444, ¶ 29 (2nd Dist.) (“[t]he inability to see by virtue of the tanker blocking the light was
an open and obvious danger, and Speedway owed no duty to Mr. Gibbs to warn him
about it”).
{¶28} (2) “One who maintains a private motor vehicle parking area, for the
accommodation of those he serves in a professional or business way, is generally under
no legal obligation to illuminate the same at night * * *.” Jeswald at paragraph one of
the syllabus; Swonger at ¶ 12 (“Ohio law is clear that a business owner is under no
affirmative duty to light walkways and public parking areas outside their buildings to
accommodate invitees”); Shipman at ¶ 31 (“Ohio Courts have found that there is no
obligation for a business owner to illuminate the parking area”); Scheetz v. Kentwood,
Inc., 152 Ohio App. 3d 20, 2003-Ohio-1209, 786 N.E.2d 501, ¶ 10 (11th Dist.)
(“[b]ecause 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 Mrs.
Scheetz fell”).
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{¶29} Accordingly, Cash’s inability to see the bumper, whether as a
consequence of the time of day, shadows cast by the car and bushes, or the failure to
provide artificial lighting, does not create a genuine issue of material fact with respect to
the applicability of the open and obvious doctrine.
{¶30} The other circumstances also fail to mitigate the open and obvious nature
of the hazard posed by the parking bumper, i.e., they were not “so abnormal that [they]
unreasonably increased the normal risk of a harmful result or reduced the degree of
care an ordinary person would exercise.” (Citation omitted.) Shipman at ¶ 29.
{¶31} The bumper was not painted yellow but did not, for this reason, blend into
the adjacent pavement. As the photographs in the record demonstrate, the bumper was
made of concrete (a light gray) which contrasts with the asphalt parking lot (black).
{¶32} The protrusion of the parking bumper six to nine inches beyond the
passenger side of the vehicle is not a remarkable circumstance and, in any event, has
no bearing on the open and obvious nature of the hazard. Cash contends the
protrusion of the bumper was even more of a risk because there were only twelve
inches between the end of the bumper and the curb of the landscape island, through or
across which Cash had to traverse in order to reach the passenger side of the car.
Again, the twelve-inch space between the bumper and the curb is not the sort of
circumstance that renders the parking lot unreasonably dangerous. Furano, 2009-Ohio-
3150, at ¶ 27 (“[p]atrons using a parking spot fronted by a tire stop are reasonably
expected to, upon exiting their vehicles, negotiate their steps in the close quarters
between parked vehicle”).
{¶33} Finally, the fact that, upon arriving at Applebee’s, Cash decided to walk
around the back of the car and so avoid the tire stop does not alter the outcome.
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Cash’s avoidance of the bumper when it was lighter outside and she could have
observed it more easily is hardly an unusual circumstance or a condition for which
Applebee’s could be held responsible. Gamby v. Fallen Timbers Ents., 6th Dist. Lucas
No. L-03-1050, 2003-Ohio-5184, ¶ 13 (“[t]he breadth of the exception [for attendant
circumstances] * * * does not * * * encompass the common or the ordinary”); Backus v.
Giant Eagle, 115 Ohio App.3d 155, 158, 684 N.E.2d 1273 (7th Dist. 1996) (“an
attendant circumstance is [a] circumstance * * * which is beyond the control of the
injured party”); Lang v. Holly Hill Motel, Inc., 4th Dist. Jackson No. 06CA18, 2007-Ohio-
3898, ¶ 25 (“[a]ttendant circumstances do not include the individual’s activity at the
moment of the fall, unless the individual’s attention was diverted by an unusual
circumstance of the property owner’s making”).
{¶34} Cash’s assignments of error are without merit.
{¶35} For the foregoing reasons, the Judgment of the Trumbull County Court of
Common Pleas, granting summary judgment in favor of Applebee’s, is affirmed. Costs
to be taxed against the appellant.
TIMOTHY P. CANNON, J.,
COLLEEN MARY O’TOOLE, J.,
concur.
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