DocketNumber: No. 6-08-12.
Citation Numbers: 2008 Ohio 6184
Judges: ROGERS, J.<page_number>Page 2</page_number>
Filed Date: 12/1/2008
Status: Precedential
Modified Date: 7/6/2016
{¶ 2} In October 2007, Mohn filed a complaint against Wal-Mart seeking damages in excess of $25,000 as a result of injuries she sustained during a fall in the parking lot of the store. The complaint alleged that, as a direct and proximate result of Wal-Mart's negligence in maintaining a cart corral, she tripped over a bowed metal bar at the entrance of a cart corral while returning her shopping cart, thereby causing her to sustain multiple injuries and incur medical expenses. *Page 3
{¶ 3} In November 2007, Wal-Mart filed an answer to Mohn's complaint, denying the allegations and raising contributory negligence and assumption of the risk as affirmative defenses.
{¶ 4} In January 2008, Mohn was deposed by counsel for Wal-Mart, during which she testified that she was doing her regular grocery shopping at Wal-Mart; that she shops at this Wal-Mart multiple times per week; that, on this particular occasion, after she had finished shopping, she took her groceries to the car and proceeded to return her shopping cart to the cart corral; that she entered the corral to return the cart, pushing her cart over the metal bar on the ground at the entrance to the corral; that, as she pushed her cart into the corral, she felt it go over the metal bar; that, upon pushing the cart into place, she grabbed her purse out of the cart, turned around, and proceeded to exit the corral; that, as she turned around and stepped to exit the corral, her foot became wedged between a bowed portion of the metal bar and the ground; and, that she then lost her balance and fell face first to the ground, suffering a broken finger, fractured nose, knee injury, and concussion.
{¶ 5} Upon being questioned by defense counsel, Mohn testified that she was aware of the presence of the metal bar at the entrance to the cart corral; that the bar was visible; and, that if she had looked down upon exiting the corral, she would have seen the raised portion of the bar which caused her to fall. Mohn *Page 4 further testified that she was not sure how high the raised portion of the metal bar was off the ground, but that she could not say for sure that it was greater than two inches.
{¶ 6} In April 2008, Wal-Mart filed a motion for summary judgment pursuant to Civ. R. 56, asserting that no genuine issue of material fact existed on the issue of whether this hazard was open and obvious, thereby negating Wal-Mart's duty to Mohn and defeating her negligence claim because Mohn's deposition established that the warp in the metal bar at the entrance to the corral was visible and that she would have seen this hazard had she looked down. The motion further asserted that summary judgment was appropriate because Mohn's testimony established that this hazard was less than two inches off the ground, and a two inch or less difference in a walkway elevation height is deemed insubstantial as a matter of law pursuant to Cash v. Cincinnati (1981),
{¶ 7} In June 2008, Mohn filed a memorandum in opposition to Wal-Mart's motion for summary judgment. Mohn asserted that a genuine issue of material fact existed as to whether the hazard in the corral was open and obvious because she was distracted from observing the hazard due to her compliance with Wal-Mart's request to return the cart; because the cart itself distracted her and obscured her view of the hazard; and, because the hazard itself was small and *Page 5 difficult to see. Mohn further asserted that summary judgment should not be granted on the basis that the hazard was insubstantial as a matter of law because the "two inch rule" of Cash has only been applied to defective hazards in sidewalks or walking surfaces themselves, not a foreign object deliberately attached to the walking surface, and because attendant circumstances obviate the application of the doctrine, as she was distracted from noticing the hazard due to her compliance with Wal-Mart's request to return the shopping cart.
{¶ 8} Subsequently, the trial court granted Wal-Mart's motion for summary judgment, dismissing Mohn's complaint. In granting the motion, the trial court made the following findings of fact:
4. Plaintiff is unable to prove that the metal strip that she tripped over was elevated two inches or more off of the ground. Therefore, as a matter of law this defect is deemed insubstantial as a matter of law. * * *
5. Plaintiff admitted that the metal strip and the "buckle" was visible and if she had been looking she could have seen it, both upon entering the cart corral to return the cart, and upon exiting the cart corral. Therefore, as a matter of law this alleged hazard was open and obvious. * * * Moreover, Plaintiff traversed over and recognized the alleged hazard just prior to tripping on it, and this initial movement over the alleged hazard also makes it open and obvious. * * *
6. Plaintiff contends that a sign encourages Wal-Mart patrons to return carts to the cart corral, and that act of returning the cart to the cart corral amounted to attendant circumstances. But, 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. * * * Plaintiff's attendant circumstance argument is flawed, as the circumstances that she alleges, her activity of *Page 6 pushing the cart, was present as she entered the cart corral, but not when she exited and fell. On Plaintiff's exit, she had already returned her shopping cart. Moreover, the Plaintiff could see in front of her cart. Therefore, Plaintiff has presented no attendant circumstances to overcome the open and obvious doctrine, or the two inch rule.
{¶ 9} It is from this judgment that Mohn appeals, presenting the following assignments of error for our review.
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT ON THE OPEN AND OBVIOUS DOCTRINE OF OHIO LAW WHEN EXIGENT CIRCUMSTANCES EXISTED GIVING RISE TO A GENUINE ISSUE OF MATERIAL FACT.
THE TRIAL COURT ERRED IN APPLYING THE "TWO INCH" RULE TO THIS CASE MISAPPLYING THE STANDARD FOUND IN CASH V. CINCINNATI 66 OST. 2D 319 [SIC] AS WELL AS MISAPPLYING THE STANDARD TO THE FACTS IN THIS CASE WHERE THE DEFECT IS A METAL ATTACHMENT TO THE PAVEMENT SURFACE AND NOT A DEPRESSION, CRACK OR DEFECT IN THE PAVEMENT SURFACE OR SIDEWALK SURFACE ITSELF.
{¶ 11} A trial court's grant of summary judgment is reviewed de novo.Hillyer v. State Farm Mut. Auto. Ins. Co. (1999),
{¶ 12} The party moving for summary judgment must first satisfy its burden to produce evidence demonstrating no genuine issue of material fact exists *Page 8
as to the issues in the case. Dresher v. Burt,
{¶ 13} "[I]n order to establish actionable negligence, one seeking recovery must show the existence of a duty, the breach of the duty, and injury resulting proximately therefrom." Strother v. Hutchinson (1981),
{¶ 14} A hazard is open and obvious when in plain view and readily discoverable upon ordinary inspection. Parsons v. Lawson Co. (1989),
{¶ 15} In Armstrong,
{¶ 16} Turning to the facts of this case, Mohn argues that her act of complying with Wal-Mart's request to return the cart to the corral distracted her from being aware of the hazard posed by the defective bar, and that the hazard was so small it was difficult to see, thereby raising a jury question as to whether the hazard was open and obvious. However, construing all doubts in her favor, these arguments fail to negate the open and obvious nature of the hazard described in her testimony. Mohn testified in her deposition that she was aware of the existence of the metal bar at the entrance to the cart corral when she pushed her cart into the corral; that the bar was visible; and, that if she would have looked down upon exiting the corral, she would have seen the defect in the bar that caused her to fall. Furthermore, even if the attendant circumstance of complying with Wal-Mart's request to return the cart would have been sufficient to divert Mohn's attention from the hazard created by the defective bar, her attention would not have been diverted at the time of her fall because she had already returned the cart and was exiting the corral.
{¶ 17} Consequently, we find that, based upon her testimony, this hazardous defect in the metal bar was in plain view and readily discoverable upon inspection. While Mohn had no affirmative duty to look constantly downward, her own testimony established that she was aware of the existence of the metal bar, and, therefore, she should have looked down when walking out of the corral *Page 12
to make sure she did not trip on the bar. Additionally, we find the facts of this case on point with Armstrong,
{¶ 18} Based upon Mohn's testimony that the hazard was visible, the lack of evidence establishing that the hazard was concealed in some manner, and the fact that any attendant circumstances distracting her from the hazard would have only existed prior to her fall, we find there to be no genuine issue of material fact as to whether the hazard was open and obvious, and, as such, the trial court did not err in granting Wal-Mart's motion for summary judgment.
{¶ 19} Accordingly, Mohn's first assignment of error is overruled.
{¶ 21} Having found no error prejudicial to the appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment affirmed.
*Page 1SHAW, P.J., and PRESTON, J., concur.