Lattimore v. K & A Market, Inc.

[Cite as Lattimore v. K & A Market, Inc., 2016-Ohio-5295.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
ANDREA LATTIMORE, : APPEAL NO. C-150753
TRIAL NO. A-1500383
Plaintiff-Appellant, :
O P I N I O N.
vs. :
K & A MARKET, INC., :
and :
CARRIE L. MOLLER TRUST, :
Defendants-Appellees, :
and :
MOLINA HEALTHCARE OF OHIO, :
Defendant. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 10, 2016
Anthony J. Iaciofano and R. David Weber, for Plaintiff-Appellant Andrea Lattimore,
James R. Hartke, for Defendant-Appellee K & A Market, Inc.,
Jeffrey A. Stepner, for Defendant-Appellee Carrie L. Moller Trust.
OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} This is an appeal in a slip and fall case. A customer tripped on the edge
of a handicap ramp while shopping at a convenience store. The trial court granted
summary judgments in favor of the convenience store and the property owner. We
affirm. The defendants owed no duty to the customer because the rise in the floor on
which she fell was open and obvious. Further, the doctrine of negligence per se does not
apply to create a duty because the customer has failed to show the violation of a
legislative enactment.
I. Background
{¶2} Andrea Lattimore fell while shopping at K & A Market. As she tells it,
she entered the store and immediately spotted a display of snacks from which she
sought to make a purchase. She took two steps into the store and turned to her left to
reach the snack rack. When she did so, she tripped on a rise at the edge of a handicap
ramp.
{¶3} Apparently, there had once been a handrail on the ramp. The market
had removed the handrail—with the property owner’s permission—soon after it had
taken over occupancy of the building. Ms. Lattimore testified that she had been in the
building on numerous occasions before the handrail was removed. Following Ms.
Lattimore’s accident, a city of Cincinnati building inspector issued the property owner a
notice of violation of a Cincinnati Municipal Code section requiring that railings be
maintained in good repair.
{¶4} Ms. Lattimore filed a complaint for negligence and negligence per se
against K & A Market, Inc., and the owner and lessor of the property, the Carrie L.
Moller Trust. Both moved for and were granted summary judgment. The trial court
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OHIO FIRST DISTRICT COURT OF APPEALS
concluded that the hazard was open and obvious and that the Cincinnati Municipal Code
provision alleged to have been violated was not sufficiently specific to allow for the
application of negligence per se. Ms. Lattimore now appeals, challenging both
conclusions in a single assignment of error.
II. The Rise Was Open and Obvious
{¶5} The owner or occupier of property owes no duty to warn a person
entering the premises of an open and obvious danger. Armstrong v. Best Buy Co.,
99 Ohio St. 3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, syllabus. “The rationale
underlying this 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). “A danger is open and obvious if
it is not ‘hidden, concealed from view, or undiscoverable upon ordinary inspection.’ ”
Esterman v. Speedway, LLC, 1st Dist. Hamilton No. C-140287, 2015-Ohio-659, ¶ 7,
quoting Thompson v. Ohio State Univ. Physicians, Inc., 10th Dist. Franklin No.
10AP-612, 2011-Ohio-2270, ¶ 12.
{¶6} We agree with the
trial court that the rise in the floor
was open and obvious. This is a
case where a picture is truly worth
a thousand words. As
demonstrated by the photograph
to the right, the ramp was visible
and distinct from the raised floor. The ramp had a different type of floor covering,
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OHIO FIRST DISTRICT COURT OF APPEALS
and the drop was marked with orange tape. In addition, a warning sign on the door
alerted customers to the uneven rise.
{¶7} Ms. Lattimore argues that “attendant circumstances” militate against
a finding that the hazard was open and obvious. See Martin v. Christ Hosp., 1st Dist.
Hamilton No. C-060639, 2007-Ohio- 2795, ¶ 19. In determining whether a danger is
open and obvious, a court may consider attendant circumstances that would reduce
the attention of a patron in the same circumstances and increase the risk of a fall.
McGuire v. Sears, Roebuck & Co., 118 Ohio App. 3d 494, 499, 693 N.E.2d 807 (1st
Dist.1996). Ms. Lattimore says she was “barely in the front door” when she became
so distracted by a bright display of potato chips and other snacks that she was
oblivious to the rise on the floor. But “attendant circumstances do not include a
person’s activity at the time of a fall unless the person’s attention was diverted by ‘an
unusual circumstance of the property owner’s own making.’ ” Esterman at ¶ 11,
quoting McConnell v. Margello, 10th Dist. Franklin No. 06AP-1235, 2007-Ohio-
4860, ¶ 17. A potato chip display in a convenience store is hardly “an usual
circumstance.” Even considering the chips, we have little difficulty concluding the
danger confronting Ms. Lattimore was open and obvious.
III. Negligence Per Se Analysis Is Not Warranted Here
{¶8} Ms. Lattimore also maintains that the trial court erred in failing to
apply the doctrine of negligence per se to find that the defendants owed her a duty of
care.
{¶9} Even if a hazard is open and obvious, a landowner or occupier may
still owe a duty to one who comes on the property as the result of a specific legislative
enactment. Lang v. Holly Hill Motel, Inc., 122 Ohio St. 3d 120, 2009-Ohio-2495,
909 N.E.2d 120, ¶ 13. Thus, while “the open-and-obvious doctrine can excuse a
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OHIO FIRST DISTRICT COURT OF APPEALS
defendant's breach of a common-law duty of care, it does not override statutory
duties.” Id. at ¶ 14. Violation of such a statutory duty is negligence per se. Id. This
doctrine allows the plaintiff to establish “the first two prongs of the negligence test,
duty and breach of duty, by merely showing that the defendant committed or omitted
a specific act prohibited or required by statute.” Id. at ¶ 15. In order for negligence
per se to apply, however, the legislative enactment must “set[] forth a positive and
definite standard of care.” Mann v. Northgate Investors, L.L.C., 138 Ohio St. 3d 175,
2014-Ohio-455, 5 N.E.3d 594, ¶ 29.
{¶10} Ms. Lattimore argues that negligence per se should be applied in this
case based upon the purported violation of Cincinnati Municipal Code 1119-03.4. That
section requires that all “stairs, stair landings and railings shall be maintained in
sound condition and good repair.”
{¶11} Defendants counter that negligence per se is not applicable here because
the requirement alleged to have been violated was a building code requirement. They
rely upon Holly Hill Motel, Inc., 122 Ohio St. 3d 120, 2009-Ohio-2495, 909 N.E.2d 120,
where the Ohio Supreme Court found that negligence per se could not be premised on a
violation of the Ohio Building Code. There, the court relied upon the fact that the Ohio
Building Code was not a legislative enactment, but rather was created by administrative
agency employees who implement the legislature’s policy directives. Id. at ¶ 18. The
provision in this case, although comparable in substance to the provision at issue in
Holly Hill, was part of the Cincinnati Municipal Code, enacted by Cincinnati City
Council. The Second Appellate District has concluded that because such municipal code
provisions are legislative enactments rather than administrative regulations, building
code requirements therein could be the basis for a finding of negligence per se. See
Gibbs v. Speedway LLC, 2014-Ohio-3055, 15 N.E.3d 444, ¶ 39 (2d Dist.).
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{¶12} Assuming that a violation of the Cincinnati Municipal Code provision
could constitute negligence per se, we still do not find that there is any basis for
application of the principle on the facts before us. Here, the duty imposed by Cincinnati
Municipal Code 1119-03.4 was that railings be maintained in sound condition and good
repair. As we read the provision it does not mandate the existence of a railing, only that
if one exists that it be properly maintained. Nor does Ms. Lattimore point to any other
code section that requires the existence of a railing. Thus, there is no basis to apply
negligence per se.
IV. Conclusion
{¶13} The defendants owed no duty of care to Ms. Lattimore because the
danger was open and obvious and because they were not negligent per se. The
assignment of error is overruled. The judgment of the trial court is affirmed.
Judgment affirmed.
C UNNINGHAM , P.J., and M OCK , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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