Armstrong v. Lakes Golf & Country Club, Inc.

[Cite as Armstrong v. Lakes Golf & Country Club, Inc., 2018-Ohio-1018.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
SCOTT ARMSTRONG, et al. JUDGES:
Hon. John W. Wise, P. J.
Plaintiffs-Appellants Hon. Patricia A. Delaney, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 17 CAE 08 0054
LAKES GOLF and COUNTRY CLUB,
INC.
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. 16 CVC 07 0401
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 19, 2018
APPEARANCES:
For Plaintiffs-Appellants For Defendant-Appellee
GARTH G. COX MICHAEL J. MCLANE
HARRIS, McCLELLAN, BINAU 140 East Town Street
& COX, PLL Suite 1015
37 West Broad Street, Suite 950 Columbus, Ohio 43215
Columbus, Ohio 43215
Delaware County, Case No. 17 CAE 08 0054 2
Wise, P. J.
{¶1} Plaintiffs-Appellants Scott Armstrong and Julie Armstrong appeal the July
14, 2017, decision of the Court of Common Pleas, Delaware County, which granted
summary judgment in favor of Appellee Lakes Golf and Country Club, Inc.
STATEMENT OF THE FACTS AND CASE
{¶2} The following statement of the facts is taken from the trial court’s 7/14/17
Judgment Entry:
{¶3} This case arises from a knee injury that Lakes member Scott Armstrong
sustained when he stepped into a valve box between the parking lot and the patio bar at
the Lakes on September 19, 2014. (Complaint ¶5-6; Scott Armstrong Dep. 8:14-23). On
that day, Armstrong had driven to the Lakes to participate in a golf outing with other club
members there. (Scott Armstrong Dep. 13:14-15). He chose to park his car along the
curb closest to the clubhouse rather than in a parking space in the parking lot because
he wanted to ensure that the car would not be hit by other vehicles. (Scott Armstrong
Dep. 14:10-17). The golfing started at 1:00 p.m. (Scott Armstrong Dep. 16:18-22). By
6:00 p.m., Armstrong had finished playing, freshened up, and walked to the patio area,
where the Lakes had set up some dining tables for the golfers. (Scott Armstrong Dep.
16:18-23; 49:6-21; 52:8-12).
{¶4} Armstrong was seated at a table near the fire pit with Damon Canfield, Mike
Powers, Brad Perrine, and Garth Cox. (Scott Armstrong Dep. 22:15-18). The Lakes had
provided food and drink service to Armstrong and the other golfers from the outing. (Scott
Armstrong Dep. 53:1-8). Armstrong estimated at his deposition in October 2016 that he
had consumed five or six alcoholic beverages between 1:00 p.m. and 7:30 p.m. on the
Delaware County, Case No. 17 CAE 08 0054 3
day of the outing, but he contends that he was not intoxicated and had no difficulty
walking. (Scott Armstrong Dep. 53:23-54:10; 59:5-9: 129:18-21; 130:10-13). Tammy
Russell - a server at the Lakes - also testified at a deposition, explaining that she had
served Armstrong and other golfers on the day of the outing and had not seen signs of
intoxication in Armstrong that night. (Russell Dep. 38:4-7).
{¶5} By 7:30 p.m., the sun was setting, which prompted Armstrong to leave the
group so that he could drop off his sunglasses in his car. (Scott Armstrong Dep, 9:2-5;
16:16-17; 25:6-22). According to Armstrong, the sun was still providing some light in the
sky. (Scott Armstrong Dep. 17:1-12). Instead of walking on a paved and lighted path
through the terrace and around the clubhouse to reach his car, Armstrong chose to take
an off the path shortcut across a five foot long mulched bed that lay between the patio
bar and the parking lot. (Scott Armstrong Dep. 9:7-12; 15:1-3; 26:18-27:20; 28:2-6;
30:24-31:14). According to Armstrong, this shortcut was frequently used by other club
members. (Scott Armstrong Dep. 27:21-28:1). Armstrong testified at his deposition that
he himself had utilized this shortcut 12 to 15 times between 2003 and 2014. (Scott
Armstrong Dep. 33:1-2; 47:2-6).
{¶6} As he walked with what he describes as a normal gait over the mulched bed
and into the grassy area between that bed and his parked car, he felt heavy moisture
under his left foot. When he took his next step with his right foot, that foot landed in a
valve box that measured 8” x 10" or 10" x 12” at the top. (Scott Armstrong Dep. 9:12-20;
18:2-4; Julie Armstrong Dep. 25:5-7). The depth of the valve box remains unclear from
the record, but Armstrong claimed during his deposition that his right knee was level with
the ground once his foot hit the bottom of the box. (Scott Armstrong Dep. 83:2-18;
Delaware County, Case No. 17 CAE 08 0054 4
105:19-22; 107:11-19; 112:19-21). His uneven stance at that point caused him to lose
his balance and he fell to the ground. (Scott Armstrong Dep. 9:18).
{¶7} Armstrong was not looking at the ground in front of him when he stepped
into the valve box. (Scott Armstrong Dep. 9:18). Instead, he was focused at that moment
on his parked car and on the people or vehicles moving in and out of the parking lot.
(Scott Armstrong Dep. 84:7-10). After lying for a few minutes on his back in standing
water that surrounded the valve box, Armstrong was able to roll over and get to his feet.
(Scott Armstrong Dep. 87:1-3; 112:4-18). According to Armstrong, the cover to the valve
box was off and lying next to it when he stepped into the valve box. (Scott Armstrong
Dep. 83:2-18; 86:16-21; 105:19-22; 107:11-19; 112:19-21). He also testified that the lid
was light green in color, and he could distinguish between it and the surrounding grass
once he stood up. (Scott Armstrong Dep. 86:4-5; 113:3-10; 117:2-5). He testified, too,
that once he returned to a standing position after his fall, he looked down and could see
that the valve box was open. (Scott Armstrong Dep. 86:4-5; 113:3-10; 117:2-5).
{¶8} Shortly after he stood up, Armstrong saw his friend Kendra Cook walking
into the Lakes from the parking lot. (Scott Armstrong Dep. 118:10-14; 119:1-4). He called
her over and asked her to find his wife Julie. (Scott Armstrong Dep. 119:19-20). Julie
Armstrong soon arrived at the scene, and she helped her husband walk to his car and
then drove him home. (Julie Armstrong Dep. 33:19-20: Scott Armstrong Dep. 136:18-
20).
{¶9} Chris Haunty is the Lakes' superintendent. (Haunty Dep. 8:4-21). He is
responsible for maintaining the grounds, including the lawns, flower beds, parking lots,
and entryways, and he also oversees the drainage, irrigation, and watering system at
Delaware County, Case No. 17 CAE 08 0054 5
the golf course. (Haunty Dep. Ex.10). The parties do not know why or when the valve-
box lid was removed, and Haunty testified at his deposition that in the days leading up
to September 19, 2014, no Lakes employees performed work on the valve box where
Armstrong fell. (Haunty Dep. 46:21-47:4; 48:18-23; Spragg Dep. 245:8-21).
{¶10} Based on photographs taken the day after the accident, Haunty does not
believe that the grass near the valve box had been recently mowed. (Haunty Dep. 82:17-
23; 83:3-5). According to Haunty, the area where Armstrong fell was mowed on a weekly
basis in the summer, but that mowing slowed down in September when the grass
stopped growing as quickly. (Haunty Dep. 82:17-23; 83:3-5; 108:3-10).
{¶11} James Spragg is the Chief Operating Officer of the Lakes. (Spragg Dep.
9:11-18). Lakes’ officials first learned on the morning of September 20, 2014, about
Armstrong’s injury. (Spragg Dep. 18:20-23). Spragg testified at a deposition that he
never saw or heard about anyone - other than Armstrong - walking across the mulched
area where Armstrong was injured. (Spragg Dep. 54:12-17; 55:1-21; 56:4-21). According
to Spragg, the area where Armstrong fell is not utilized by the Lakes for any club activities
or as a walkway. (Spragg Dep. 60:1-6). Rather, Spragg testified that “[t]here is a concrete
walkway that is lit from the lower parking lot that our members take to that [patio bar]
area as well as the golf area which is exactly what the Lakes would want[.]" (Spragg Dep.
69:11-15).
{¶12} On July 5, 2016, Appellants Scott and Julie Armstrong filed a Complaint
against Appellee Lakes Golf and Country Club, Inc. setting forth claims for premises
liability negligence and loss of consortium.
{¶13} On April 29, 2017, Appellee filed a Motion for Summary Judgment.
Delaware County, Case No. 17 CAE 08 0054 6
{¶14} On May 5, 2017, Appellants filed a Memorandum Contra to Appellee’s
Motion for Summary Judgment.
{¶15} By Judgment entry filed July 14, 2017, the trial court granted Appellee’s
motion for summary judgment finding that the hole Appellant stepped into was open and
obvious.
{¶16} Appellants now appeal, assigning the following error for review:
ASSIGNMENT OF ERROR
{¶17} “I. THE TRIAL COURT ERRED IN FINDING THAT THE UNPROTECTED
VALVE BOX WAS AN OPEN AND OBVIOUS DANGER ELIMINATING THE DUTY
OWED TO APPELLANTS.”
I.
{¶18} In their sole Assignment of Error, Appellants argue that the trial court erred
in granting summary judgment in favor of Appellee. We disagree.
Summary Judgment
{¶19} Summary judgment proceedings present the appellate court with the unique
opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v.
The Wedding Party, Inc., 30 Ohio St. 3d 35, 36, 506 N.E.2d 212 (1987). As such, this
Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co., 77
Ohio St. 3d 102, 105, 671 N.E.2d 241 (1996).
{¶20} Civ.R. 56 provides summary judgment may be granted only after the trial
court determines: 1) no genuine issues as to any material fact remain to be litigated; 2)
the moving party is entitled to judgment as a matter of law; and 3) it appears from the
evidence that reasonable minds can come to but one conclusion and viewing such
Delaware County, Case No. 17 CAE 08 0054 7
evidence most strongly in favor of the party against whom the motion for summary
judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc.,
50 Ohio St. 2d 317, 364 N.E.2d 267 (1977).
{¶21} It is well established the party seeking summary judgment bears the burden
of demonstrating that no issues of material fact exist for trial. Celotex Corp. v. Catrett,
477 U.S. 317, 330, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1987). The standard for granting
summary judgment is delineated in Dresher v. Burt, 75 Ohio St. 3d 280 at 293, 662
N.E.2d 264 (1996): “* * * a party seeking summary judgment, on the ground that the
nonmoving party cannot prove its case, bears the initial burden of informing the trial court
of the basis for the motion, and identifying those portions of the record that demonstrate
the absence of a genuine issue of material fact on the essential element(s) of the
nonmoving party's claims. The moving party cannot discharge its initial burden under
Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no evidence
to prove its case. Rather, the moving party must be able to specifically point to some
evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the
nonmoving party has no evidence to support the nonmoving party's claims. If the moving
party fails to satisfy its initial burden, the motion for summary judgment must be denied.
However, if the moving party has satisfied its initial burden, the nonmoving party then
has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing there
is a genuine issue for trial and, if the nonmovant does not so respond, summary
judgment, if appropriate, shall be entered against the nonmoving party.” The record on
summary judgment must be viewed in the light most favorable to the opposing party.
Williams v. First United Church of Christ, 37 Ohio St. 2d 150, 309 N.E.2d 924 (1974).
Delaware County, Case No. 17 CAE 08 0054 8
Negligence
{¶22} The issue in this case is whether Lakes Golf and Country Club was
negligent. In order to establish a claim for negligence, a plaintiff must show: (1) a duty
on the part of defendant to protect the plaintiff from injury; (2) a breach of that duty; and
(3) an injury proximately resulting from the breach. Jeffers v. Olexo, 43 Ohio St. 3d 140,
142, 539 N.E.2d 614 (1989).
{¶23} In a premises liability case, the relationship between the owner or occupier
of the premises and the injured party determines the duty owed. Gladon v. Greater
Cleveland Regional Transit Auth., 75 Ohio St. 3d 312, 315, 1996–Ohio–137, 662 N.E.2d
287; Shump v. First Continental–Robinwood Assocs., 71 Ohio St. 3d 414, 417, 644
N.E.2d 291 (1994). Ohio adheres to the common-law classifications of invitee, licensee,
and trespasser in cases of premises liability. Shump, supra; Boydston v. Norfolk S. Corp.,
73 Ohio App. 3d 727, 733, 598 N.E.2d 171, 175 (4th Dist.1991).
{¶24} In the instant case, the parties do not dispute Appellant was an invitee on
September 19, 2014, when he participated in the golf outing at the Lakes Golf and
Country Club, Delaware County, Ohio. An invitee is defined as a person who rightfully
enters and remains on the premises of another at the express or implied invitation of the
owner and for a purpose beneficial to the owner. Broka v. Cornell's IGA Foodliner Inc.,
5th Dist. No. 12CA100, 2013–Ohio–2506, ¶ 20 citing Gladon, supra at 315, 662 N.E.2d
287; Carpenter v. Mount Vernon Gateway, Ltd., 5th Dist. Knox No. 13CA6, 2014-Ohio-
465.
{¶25} The owner or occupier of the premises owes the invitee a duty to exercise
ordinary care to maintain its premises in a reasonably safe condition, such that its
Delaware County, Case No. 17 CAE 08 0054 9
invitees will not unreasonably or unnecessarily be exposed to danger. Paschal v. Rite
Aid Pharmacy, Inc., 18 Ohio St. 3d 203, 480 N.E.2d 474 (1985). A premises owner must
warn its invitees of latent or concealed dangers if the owner knows or has reason to know
of the hidden dangers. Id. However, a premises owner is not an insurer of its invitees'
safety against all forms of accident that may happen. Id. Invitees are expected to take
reasonable precautions to avoid dangers that are patent or obvious. Sidle v. Humphrey,
13 Ohio St. 2d 45, 233 N.E.2d 589 (1968).
Open and Obvious
{¶26} Under Ohio law, a business owner owes no duty to protect an invitee from
dangers that are known to the invitee or are so obvious and apparent to the invitee that
he or she may be reasonably expected to discover them and protect him or her against
them. Id.
{¶27} In Armstrong v. Best Buy Company, Inc., the Ohio Supreme Court found a
premises owner owes no duty to persons entering the premises regarding dangers that
are open and obvious. 99 Ohio St. 3d 79, 2003-Ohio-2573, 788 N.E.2d 1088. The
rationale of the open and obvious doctrine is that the open and obvious nature of the
hazard itself serves as a warning, so that owners reasonably may expect their invitees
to discover the hazard and take appropriate measures to protect themselves against it.
Simmers v. Bentley Constr. Co., 64 Ohio St. 3d 642, 597 N.E.2d 504 (1992). Therefore,
when a danger is open and obvious, a premises owner owes no duty of care to
individuals lawfully on the premises. Armstrong v. Best Buy Co., Inc., 99 Ohio St. 3d 79,
2003-Ohio-2573, 788 N.E.2d 1088. When applicable, the open and obvious doctrine
Delaware County, Case No. 17 CAE 08 0054 10
obviates the duty to warn and acts as a complete bar to any negligence claim. Aycock v.
Sandy Valley Church of God, 5th Dist. Tuscarawas No. 2006AP090054, 2008-Ohio-105.
{¶28} The law uses an objective, not subjective, standard when determining
whether a danger is open and obvious. Freeman v. Value City Dept. Store, 5th Dist.
Stark No. 2010 CA 00034, 2010-Ohio-4634. The fact that a particular appellant himself
or herself is not aware of the hazard is not dispositive of the issue. Id. It is the objective,
reasonable person that must find the danger is not obvious or apparent. Id. The
determinative issue is whether the condition is observable. Aycock v. Sandy Valley
Church of God, 5th Dist. Tuscarawas No. 2006AP090054, 2008-Ohio-105.
{¶29} This Court has ruled that, in most situations, whether a danger is open and
obvious presents a question of law. Id. Under certain circumstances, disputed facts may
exist regarding the openness and obviousness of the danger. Id. However, where only
one conclusion can be drawn from the established facts, the issue of whether a risk was
open and obvious is decided by the court as a matter of law. Id. Further, the cases cited
by appellant are distinguishable from the instant case, as in these cases there was
conflicting testimony either as to whether the condition was obscured by a wall or
conflicting evidence as to the visibility on the stairway at the time of the fall. Hill v. Mullins,
2017-Ohio-1302, 88 N.E.3d 575; Watson v. Bradley, 2017-Ohio-431, 84 N.E.3d 97.
{¶30} In its July 14, 2017, Judgment Entry, granting summary judgment in favor
of Appellee, the trial court found the hole into which Appellant fell was open and obvious,
and therefore, Appellee did not owe a duty to Appellant Armstrong. We agree as we find
reasonable minds could not come to different conclusions as to whether the hole was an
open and obvious danger.
Delaware County, Case No. 17 CAE 08 0054 11
{¶31} Here, Appellant testified that he was not looking down at the ground in front
of him when he was walking to his car. (S. Armstrong Dep. 83:5-18). Appellant admitted
that he was focused on his car and the people entering and leaving the parking lot. (S.
Armstrong Depo. 84:7-10). Appellant stated there was still some daylight left in the sky.
(S. Armstrong Dep. 17:1-12). He also testified that when he stood up after the fall, he
was able to see that the valve box lid was not on the valve box but was lying next to the
box, that the lid was light green and was lighter than the surrounding grass, and that he
could see the hole as well. (S. Armstrong Dep. 83:2-18; 105:19-22; 107:11-9; 112:19-
21; 113:3-10; 117:2-5). Armstrong’s wife Julie testified that the flat surface of the valve
box was 8”x10” or 10”x12” at the top. (J. Armstrong Dep. 25:5-7; S. Armstrong Dep.
116:6-11). During his deposition, Armstrong stated that he did not believe that he
knocked the cover off of the valve box. (S. Armstrong Dep. 107:11-21).
{¶32} Additionally, the photographs taken by Armstrong’s wife the following
afternoon show that valve box was observable from at least a distance of several feet
away. (J. Armstrong Dep. 21:5-6).
{¶33} Based on the foregoing facts and testimony, we find that the evidence
supports the conclusion that the valve box was open and the hole or opening in the
ground was readily observable by a reasonable invitee exercising ordinary care.
{¶34} We find this case analogous to cases finding no genuine issue of material
fact exists, particularly the case of Bauermeister v. Real Pit BBQ, LLC, 5th Dist. Delaware
No. 14 CAE 04 024, 2014-Ohio-4501, 2014 WL 5089094, in which the plaintiff fell exiting
a restaurant. This Court found the slope and riser deviation was open and recognizable,
as observed in the photographs provided. Id. See also Ryan v. Gaun, 5th Dist. Licking
Delaware County, Case No. 17 CAE 08 0054 12
No. 2003CA00110, 2004-Ohio-4032, 2004 WL 1728519 (rejecting appellant's argument
that the hazard presented by the steep slope was hidden and latent and finding the
hazard presented by the slope was open and obvious, even though the exact degree of
the slope was unknown and finding appellees' failure to provide notice of the exact slope
degree of the ramp does not render the ramp a latent, hidden danger); Freeman v. Value
City Dept. Store, 5th Dist. Stark No. 2010 CA 00034, 2010-Ohio-4634, 2010 WL 3766806
(holding threshold was open and obvious because it was neither hidden from view nor
concealed as the plaintiff testified nothing obstructed her view and she had a clear view
of where she was going); Snyder v. Kings Sleep Shop, LLC, 6th Dist. Williams No. WM-
13-006, 2014-Ohio-1003, 2014 WL 1343678 (holding danger posed by ramp in doorway
of store was open and obvious); Jackson v. Board of Pike Commissioners, 4th Dist. Pike
No. 10CA805, 2010-Ohio-4875, 2010 WL 3902618 (holding danger associated with
sidewalk and handicap ramp was open and obvious because nothing about the danger
is hidden or concealed from view).
Attendant Circumstances
{¶35} An exception to the open and obvious doctrine is the existence of attendant
circumstances. Aycock v. Sandy Valley Church of God, 5th Dist. Tuscarawas No.
2006AP090054, 2008-Ohio-105, 2008 WL 115829. These attendant circumstances may
exist which distract an individual from exercising the degree of care an ordinary person
would have exercised to avoid the danger, and may create a genuine issue of material
fact as to whether a hazard is open and obvious. Id. For this exception to apply, an
attendant circumstance must divert the attention of the injured party, significantly
Delaware County, Case No. 17 CAE 08 0054 13
enhance the danger of the defect, and contribute to the injury. Bovetsky v. Marc
Glassman, Inc. 5th Dist. Stark No. 2016CA00122, 2016-Ohio-7863, 2016 WL 6906148.
{¶36} There is no precise definition of attendant circumstances. Mulcahy v. Best
Buy Stores, LP, 5th Dist. Delaware No. 13 CAE 06 0051, 2014-Ohio-1163, 2014 WL
1340657. Attendant circumstances are factors that contribute to a fall and are 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. Aycock v. Sandy Valley Church of God, 5th Dist. Tuscarawas
No. 2006AP090054, 2008-Ohio-105, 2008 WL 115829.
{¶37} Attendant 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. Id., citing McGuire v. Sears, Roebuck &
Co., 118 Ohio App. 3d 494, 693 N.E.2d 807 (1st Dist. 1996). Further, an individual's
particular sensibilities do not play a role in determining whether attendant circumstances
make the individual unable to appreciate the open and obvious nature of the danger.
Freeman v. Value City Dept. Store, 5th Dist. Stark No. 2010 CA 00034, 2010-Ohio-4634,
2010 WL 3766806. Rather, the analysis of attendant circumstances uses an objective
test. Mulcahy v. Best Buy Stores, LP, 5th Dist. Delaware No. 13 CAE 06 0051, 2014-
Ohio-1163, 2014 WL 1340657.
{¶38} Appellant alleges in this case that there are attendant circumstances that
create a genuine issue of material fact as to whether the hazard is open and obvious.
Appellant first alleges that (1) Appellee had knowledge of the open valve box; (2)
Delaware County, Case No. 17 CAE 08 0054 14
Appellant’s attention was drawn to the activity in the parking lot, (3) the lighting was
insufficient in the area he fell and, (4) the lid of the box was similar in the color to the
grass. He alleges that these attendant circumstances create a genuine issue of material
fact.
{¶39} Having considered the evidence of record, we find that none of the
circumstances identified by Appellant are significant enough to either reduce the degree
of care he was required to exercise for his own safety or enhance the danger of the
hazard.
{¶40} Initially, we find that Appellee’s alleged knowledge of the open valve box
could not be an attendant circumstance as any such knowledge could not have posed a
distraction to Appellant.
{¶41} Appellant also argues that his attention was focused on his car and who
was coming and going from the club. (S. Armstrong Dep. 84:8-85:8). He did not establish
that the traffic in the parking lot at the time he fell was any different than a shopper would
ordinarily encounter in that parking lot. See Cooper v. Meijer Stores L.P., Franklin App.
No. 07AP-201, 2007-Ohio-6086. Vehicles and other pedestrians are commonplace in a
business parking lot. Without more, they do not create a distraction, or attendant
circumstance that would reduce the degree of care an ordinary person would exercise.
Cooper; see, also, Seifert v. Great Northern Shopping Center (Nov. 5, 1998), Cuyahoga
App. No. 74439 (finding that a crowded parking lot and heavy vehicular traffic on a
holiday weekend did not constitute attendant circumstances). See also Kraft v. Johnny
Biggs Mansfield, LLC, 5th Dist. Richland No. 2012 CA 0068, 2012-Ohio-5502, 2012 WL
5985086, “normal traffic” of people coming in and out of a restaurant is not a
Delaware County, Case No. 17 CAE 08 0054 15
circumstance so significant or unusual as to rise to the level of attendant circumstances.
Further, in Rayburn v. Delaware Co. Agricultural Society, 5th Dist. Delaware No. 15 CAE
02 0016, 2015-Ohio-1903, 2015 WL 2375858, we held there was no evidence to
establish the numerous people in the area distracted plaintiff to the point of reducing the
degree of care an ordinary person would exercise.
{¶42} Appellant further testified that he had parked his car in that same location,
along the curb next to the grassy area where he fell, on several other occasions. (S.
Armstrong Dep. 34:14-17; 83:19-84:6). Appellant was a regular member of the club and
was familiar with the area.
{¶43} With regard to the lighting or lack thereof, courts have rejected that
darkness, whether naturally occurring or as the result of inadequate lighting, is an
attendant circumstance for two principal reasons:
(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.
Delaware County, Case No. 17 CAE 08 0054 16
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”).
(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”).
{¶44} Cash. v. Thomas & King, Ltd., 11th Dist. Trumbull County No. 2015-T-0030,
2016-Ohio-175.
{¶45} Further, Appellant testified that it was not yet dark when he walked to his
car, that there was still daylight left in the sky. (S. Armstrong Dep. 17:1-12).
{¶46} We likewise find that the fact the valve box color was green like the
surrounding grass did not create an attendant circumstance. The color of the lid was not
relevant because the valve box was uncovered at the time of Appellant’s fall.
Delaware County, Case No. 17 CAE 08 0054 17
Furthermore, Armstrong testified that he was able to see both the hole and the cover
when he stood up after he fell. (S. Armstrong Dep. 114:1-5; 116:2-21; 117:2-5).
{¶47} Based on the foregoing, we find that reasonable minds could only conclude
the valve box was open and obvious. We further find no evidence of any attendant
circumstances which enhanced the danger to Appellant and contributed to his fall. We
therefore find the Lakes Golf and Country Club owed no duty to Appellant, and the trial
court did not err in granting summary judgment to Appellee.
{¶48} Appellants' sole Assignment of Error is overruled.
{¶49} For the forgoing reasons, the judgment of the Court of Common Pleas of
Delaware County, Ohio, is affirmed.
By: Wise, P. J.
Delaney, J., and
Baldwin, J., concur.
JWW/d 0301