Opinion
Civil Action 2:01-CV-981
September 30, 2002
OPINION AND ORDER
This is a diversity action, removed to this Court, in which plaintiffs seek recovery for injuries allegedly sustained when plaintiff Elaine H. Stephens, while Shopping as a business invitee in defendant's Grove City, Ohio, facility, slipped on sand that had accumulated on the store floor around a display of plants. She sustained a fractured right patella and underwent open reduction and internal fixation. Plaintiff Walter Stephens asserts a claim for loss of consortium. This matter is now before the Court on defendant's motion for summary judgment.
Summary judgment is appropriate if the record establishes that there exists no genuine issue of material fact. Rule 56, P.R. Civ. Pro. Anderson v. Liberty Lobby, Inc., 477 13.5. 242, 247-48 (1986). The mere existence of a scintilla of evidence in support of the Opposing party's position will be insufficient; there must be evidence on which the jury could reasonably find for the opposing party. Anderson, 477 U.S. at 251. See also Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
Defendant contends that, because the accumulated sand lying on the floor of the premises was an "open and obvious danger," it owed no duty to either warn its business invitees or to protect those business invitees from a hazardous condition. Defendant argues that it is therefore entitled to summary judgment.
The record is undisputed that plaintiff Elaine Stephens was aware of the danger posed by the sand that had accumulated on the floor of defendant's facility.
Q. I want to know — — I want to have — — just kind of tell me what brought you over to the area where you tell, how you fell, that kind of thing.
A. As you came in the door, there was a shelf and it butt up against the windows and it was a shelf rut], or plants. There was sand on the floor. The plants were filled with dirt and all that stuff, and then on top they had the sand and the sand was dry. You would have to pick it up, if you wanted to pick up the plant and look at it, sand would fall down.
So then I kicked some of it underneath the shelf, which is what I told Mr. Plymale [plaintiffs' attorney]. And then we went on and went up and down like three or four rows. We came back to the checkout counter and while he was waiting in line, I went over and got another plant and took it over to him He didn't like it, so I went back and that's when I fell.
Q. Is it a fair statement that before you fell, for a period of time before you fell you knew there was sand on the floor?
A. No, I am not going to fib about that.
Q. And you kicked it underneath because you thought that it was a hazard to people walking on it?
A. (Witness nods affirmatively.)
Q. Is that a yes?
A. Yes, I'm sorry.
Deposition of Elaine H. Stephens, at 10-11, attached as Exhibit A to Defendant's Motion for Summary Judgment.
In order to prevail in a negligence action under Ohio law, a plaintiff must establish (1) that the defendant owed her a duty of care; (2) that the defendant breached that duty of care; and (3) that, as a direct and proximate result of that breach, the plaintiff suffered injury. Menifee v. Ohio Welding Prod., Inc., 15 Ohio St.3d 75, 77 (1984)
In Ohio, an owner or proprietor of business premises owes a business invitee the duty of ordinary care of maintaining the premises in a reasonably safe condition so that its customers are not unnecessarily and unreasonably exposed to danger. Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203 (1985). However, the proprietor is under no duty to protect a business invitee from dangers that are known to the invitee or which "are so obvious and apparent to such invitee that (she) may reasonably be expected to discover them and protect [her]self against them." Id., at 203 (quoting Sidle v. Humphrey, 13 Ohio St.2d 45 (1968)). This is so because "the open and obvious nature or 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." Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642. 644 (1992). The "open and obvious" doctrine has continuing vitality under Ohio law notwithstanding Ohio's adoption of the comparative negligent statute, O.R.C. § 2315.19. Id., at n. 2.
The uncontroverted evidence in this case is that plaintiff Elaine Stephens was completely aware of the danger — — to herself and to others — — posed by the accumulated sand. She nevertheless chose to expose herself — — not once, but a number of times — — to that danger. Traditional application of the "open and obvious" doctrine to these facts would lead to the conclusion that, as a matter of law, defendant was under no duty to her in connection with that hazardous condition, and that summary judgment is warranted.
Plaintiffs argue that the Ohio Supreme Court, in Texler v. D.O. Summers Cleaners Shirt Laundry Co., 81 Ohio St.3d 677 (1996), renders the "open and obvious doctrine" relevant, not to the duty element of a negligence action, but to the issue of comparative negligence. This distinction is critical because the issue of comparative negligence is ordinarily reserved to the trier of fact. Summers, 64 Ohio St.3d, at 646 n. 2. On the other hand, the issue of the duty of care in a negligence action is an issue of law for resolution by the Court. Mussivand v. David, 67 Ohio St.3d 314, 318 (1989) . See Ward v. Wal-Mart Stores, Inc., 2002 WL 5315 (Lake Cy. Ct. App. 2001) (unreported). Where no duty of care is owed, the issue of comparative negligence is of course never reached.
Although there is authority to the contrary, see, e.g., Schindler v. Gale's Superior Supermarket, Inc., 142 Ohio App.3d 146 (Cuyahoga Cy. Ct. App. 2001); Allen v. Foxfire Golf Club, Inc., 2000 WL
1281210 (Pickaway Cy. CL. App. 2000), This Court concludes that both Texler and the weight of Ohio authority leads to the conclusion that the "open and obvious" doctrine remains relevant to the issue of duty of care and is therefore an issue of law to be resolved by the Court. See, e.g., Armstrong v. Best Buy Co., Inc., 2000 WL 1561568 (Lorain Cy. Ct. App. 2001) (unreported); Yahle v. Historic Slumber Ltd., 2001 WL 1462326 (Clinton Cy. CL. App. 2001) (unreported); Nelson v. Sound Health Alternatives Int'l., Inc., 2001 WL 1085298, at *7 (Athens Cy. Ct. App. 2001) (unreported); Whitelaw v. Fifty-Five Restaurant Group, Ltd., 2001 WL 58736, at *3 (Franklin Cy. Ct. App. 2001) (unreported).
Because the undisputed evidence in this case clearly establishes that, prior to the injury, Elaine Stephens was aware of a danger that was both open and obvious, Ohio law provides that defendant was under no duty to either warn her of that danger or protect her from that danger. Accordingly, this plaintiff cannot establish the essential elements of her negligence claim and defendant is entitled to summary judgment on her claim. Because plaintiff Walter Stephens loss of consortium claim is derivative of that of his wife, his claim must likewise fail. See Bowen v. Kil-Kare, Inc., 63 Ohio St.3d 84, 93 (1992).
The Court recognizes that the Ohio Supreme Court has certified a conflict among Ohio's district courts of appeal on this issue. Armstrong v. Best Buy Co., Inc., 95 Ohio St.3d 1411 (2002). Should the Ohio Supreme Court, in resolving this conflict, determine that the "open and obvious" doctrine no longer serves as a complete bar to recovery on a negligence claim but instead requires that comparative negligence be applied to determine liability, this Court will grant a motion for relief from the judgment entered in this action. See P.R. Civ. P. 60(b)(5), (6)
WHEREUPON the Court concludes that defendant's motion for summary judgment is meritorious and it is therefore GRANTED. The Clerk shall enter FINAL JUDGMENT for defendant.