DocketNumber: Case No. 02CA37.
Citation Numbers: 789 N.E.2d 631, 152 Ohio App. 3d 544
Judges: EDWARDS, J.
Filed Date: 4/2/2003
Status: Precedential
Modified Date: 1/13/2023
{¶ 3} Appellant Yvonne Manley (hereinafter "appellant") then exited the truck and walked across the lane of traffic to look at items in the garden center. The garden center in the Wal-Mart parking lot was arranged in such a manner that merchandise was on either side of an open driving lane. While portions of the garden display are barricaded or blocked to prevent traffic from driving into the garden display, the area between the mulch pile and the portion of the garden center across from appellant's truck was open to all traffic, including pedestrian traffic. Duane Webb, who was a stocker in the lawn and garden department in April of 1999, testified during his deposition that there were barricades along the south edge of the garden center, but that there were no barricades along the north edge of the merchandise where appellant was browsing. The driving lane between the mulch pile and the garden display was wide enough for two semi trucks to pass each other. There were no signs warning customers that vehicular traffic traveled through such portion of the garden center. Nor were there any posted speed limit signs or traffic control devices in the Wal-Mart parking lot.
{¶ 4} In order to read the price tags on the merchandise she was looking at in the garden center, appellant had to stand in the driving lane. After looking over the merchandise, appellant turned to her left and began walking towards her husband's truck. She "took no more than two steps" before she was hit in the left calf by a motor vehicle driven by appellee Orville Donathan, Jr. Appellant Yvonne Manley's Deposition at 16. Appellee Donathan's vehicle was coming in the same direction as appellant's truck was parked. Appellant, when asked, testified that she did not look to her left to see if anyone was coming before she began walking towards her husband's truck and that she assumed that, had she done so, she would have seen appellee Donathan's vehicle. When asked whether she was in any way at fault for the accident, appellant responded as follows:
{¶ 5} "A. If I had — I had said before — I mean, I was shopping. Do you know what I mean? I was shopping. It did not occur to me to look for cars even though I'm standing, you know, in a lane of traffic. It did not occur to me to look for cars because I was shopping. So if it had, you know, if I would have realized I'm standing in a lane of traffic, yes, I would have looked for cars." Appellant Yvonne Manley's Deposition at 28. Appellant also admitted that nothing blocked her from seeing appellee Donathan's car and that she knew that traffic was moving through the area, although she thought that it was only for customers picking up merchandise in the garden center. *Page 547
{¶ 6} Subsequently, on April 10, 2001, appellant and her husband, appellant Michael Manley, filed a personal injury complaint against both appellee Wal-Mart and appellee Donathan in the Richland County Court of Common Pleas. Both appellees later filed motions for summary judgment. As memorialized in a Judgment Entry filed on May 7, 2002, the trial court granted appellee Donathan's Motion for Summary Judgment as well as that filed by appellee Wal-Mart.
{¶ 7} It is from the trial court's May 7, 2002, Judgment Entry that appellants now appeal, raising the following assignments of error:
{¶ 8} "I. The trial court committed prejudicial error in finding no genuine issue of material fact regarding appellee wal-mart stores, inc.'s negligence and failure to provide a reasonably safe premises and/or to warn of dangerous conditions.
{¶ 9} "II. The trial court committed prejudicial error in finding no genuine issue of material fact regarding Appellee Orville Donathan, Jr.8'S negligence while driving an automobile."
{¶ 11} It is based upon this standard we review appellants' two assignments of error.
{¶ 13} To defeat a motion for summary judgment filed by a defendant in a negligence action, a plaintiff must identify a duty owed to him or her by the defendant which was breached by the defendant and which proximately caused the plaintiff's injury. Keister v. Park CentreLanes (1981),
{¶ 14} There is no question that appellants were business invitees on appellee Wal-Mart's premises. As business invitees, appellee Wal-Mart owed appellants a duty "to exercise ordinary and reasonable care for [their] safety and protection." See Cassano v. Antenan Stewart, Inc. (1993),
{¶ 15} While appellants, in their brief, argue that the open and obvious doctrine is no longer viable based on Texler v. D.O. SummersCleaners Shirt Laundry Company,
{¶ 16} We find that the trial court did not err in granting summary judgment to appellee Wal-Mart since the danger presented by the vehicular traffic was open and obvious. Appellant, during her deposition, testified that she was aware that traffic was moving through the lane adjacent to the display area where she was hit, although she thought that only customers who had purchased products were allowed to drive into that portion of the garden center. Appellant's own husband had driven down the lane of traffic in order to park near the mulch pile. Appellant also admitted that nothing blocked her view of Donathan's vehicle and that she would have seen the same had she looked to her left before walking towards her husband's truck. In addition, during his deposition, appellee Donathan indicated that he knew that there were pedestrians in the area where appellant was struck. Thus, nothing obstructed either appellant's view of appellee Donathan's vehicle or appellee Donathan's view of appellant. As noted by appellee Wal-Mart in its brief, "because the danger of walking out in to a car is open and obvious, Wal-Mart did not owe the Appellant any duty."
{¶ 17} Appellants, in support of their argument that appellee Wal-Mart breached its duty to appellant, contend that the design and construction of the garden center created a hazardous condition that resulted in injury to appellant. Appellants point out that appellee Wal-Mart placed merchandise on both sides of an open driving lane and that "[b]y its very design, business invitees such as Appellants were forced to stand, browse and shop for merchandise in an area where Wal-Mart had purposely maintained a driving lane." Appellant notes that she was forced to stand in the driving lane to look at price tags on the merchandise.
{¶ 18} However, assuming, arguendo, that the design and construction of the garden center were defective, we concur with the trial court that "[n]othing Wal-Mart did proximately caused the collisions" between appellant and Donathan's vehicle. In the case sub judice, appellant was not injured while she was standing and looking at merchandise in the garden center. Rather, appellant was injured when she admittedly walked out into traffic without looking although she knew that there was at least some motor vehicle traffic in the area. Appellant testified that it did not occur to her to look out for cars even thoughshe was standing in a lane of traffic since she was shopping. Appellant's Deposition at 28. Not only did appellant testify during her deposition that nothing blocked her view of appellee Donathan's car, but she also testified that there was enough space for appellee Donathan to go around her without hitting her and that, had she looked, she would have seen appellee Donathan's vehicle. *Page 550
{¶ 19} In short, we concur with the trial court that "[t]here was no danger concealed" from either appellant or appellee Donathan. The alleged danger presented by the traffic in the Wal-Mart parking lot was open and obvious. It was appellant's action in walking out into a lane of traffic without looking first that was the proximate cause of her injury — not any action or inaction on Wal-Mart's part.
{¶ 20} Based on the foregoing, we find that the trial court did not err in granting the Motion for Summary Judgment filed by appellee Wal-Mart.
{¶ 21} Appellants' first assignment of error is, therefore, overruled.
{¶ 23} Negligence in a motor vehicle case is the failure to exercise ordinary care to avoid injury to others. McDonald v. Lanius
(Oct. 28, 1993), Marion App. No. 9-93-23, quoting 7 Ohio Jurisprudence 3d (1978) 483-484, Automobiles and Other Vehicles, Section 12. Ordinary care is a degree of care that an ordinarily reasonable and prudent person exercises, or is accustomed to exercising under the same or similar circumstances. Mussivand v. David (1989),
{¶ 24} Appellee Donathan, during his deposition, testified that, prior to the accident, he noticed three or four people, one of whom was appellant, in the garden center area. According to appellee Donathan, he was going "[p]robably as slow as you could go and still moving due to the fact there was people there." Appellee Donathan's Deposition at 6, 9. Donathan also testified he was "pretty much focused straight ahead" and that he thought that he had his foot on the brake prior to hitting appellant. Appellee Donathan's Deposition at 9. When asked whether he noticed what direction appellant was facing or what she was doing before the impact, appellee Donathan responded as follows: "Well, I didn't really pay attention to what she was doing. I just noticed there was two, three, four people around there, so that's another reason why I was ready to stop if I had to." Appellee Donathan's Deposition at 9. In his affidavit attached to his Motion for Summary Judgment, Donathan stated that as he coasted forward, appellant stepped suddenly right out in front of his car and that he was unable to stop before hitting her despite applying his brakes. There is no evidence in the record that appellee Donathan was speeding or driving in a less than reasonable manner prior to the accident. *Page 551
{¶ 25} As is stated above, appellant, during her deposition, admitted that she began walking towards her husband's truck without looking to see if any traffic was coming and that, if she had looked to her left before she started to walk, she would have seen appellee's vehicle. Appellant also agreed that nothing was blocking her view or distracting her. Based on the foregoing, we find that there were no genuine issues of material fact in dispute as to appellee Donathan's alleged negligence. In short, we concur with the trial court that appellant's failure to exercise reasonable care for her own safety was the proximate cause of the accident and that there is no evidence that appellee Donathan was negligent. While appellant maintains that appellee Donathan was negligent since he failed to maintain an assured clear distance ahead in violation of R.C.
{¶ 26} Appellants' second assignment of error is, therefore, overruled.
{¶ 27} Accordingly, the judgment of the Richland County Court of Common Pleas is affirmed.
By Edwards, J., Wise, P.J. and Boggins, J. concur.
In Re: Summary Judgment-Auto Accident.