Opinion
No. 107317
05-02-2019
Dawn HALL, Plaintiff-Appellant, v. FIRST MERIT BANK, et al., Defendants-Appellees.
Grubb & Associates, L.P.A., Natalie F. Grubb, Vincent Edward Sawyer, and Mark E. Owens, for appellant Collins, Roche, Utley & Garner, L.L.C., Megan D. Stricker and David Sherman for First Merit Bank; Gallagher Sharp, Todd M. Haemmerle, Joseph Monroe, and Richard C.O. Rezie for Savarino Brothers; Reminger Co., L.P.A., Michael Pelagalli for Meadowbrook Development Corp., for appellees.
Grubb & Associates, L.P.A., Natalie F. Grubb, Vincent Edward Sawyer, and Mark E. Owens, for appellant
Collins, Roche, Utley & Garner, L.L.C., Megan D. Stricker and David Sherman for First Merit Bank; Gallagher Sharp, Todd M. Haemmerle, Joseph Monroe, and Richard C.O. Rezie for Savarino Brothers; Reminger Co., L.P.A., Michael Pelagalli for Meadowbrook Development Corp., for appellees.
JOURNAL ENTRY AND OPINION
ANITA LASTER MAYS, J.:
{¶1} Planitiff-appellant Dawn Hall ("Hall") appeals the trial court's decision to grant summary judgment to the defendants-appellees First Merit Bank ("First Merit"), Meadowbrook Development Corporation ("Meadowbrook"), and the Savarino Brothers ("Savarino"). Hall asks this court to reverse the trial court's decision and remand to the trial court for a trial on the merits of the claims. We affirm the trial court's decision.
I. Facts and Procedural History
{¶2} On January 9, 2015, Hall went to First Merit to conduct banking matters in the course of her employment for New Avenues. It was cold and had been snowing. Hall, after parking her car in the parking lot, began walking up the walkway towards the bank. Hall noticed that the walkway was covered with snow and wet. She noticed that the parking lot had been recently plowed, but the walkway had not been shoveled or plowed. Hall noticed that the walkway was slippery.
{¶3} Hall continued into the bank and inquired from the bank tellers who was responsible for shoveling the walkway. One of the tellers indicated that the tellers usually salted the walkway. Hall then indicated to the teller that the walkway was slippery and someone could fall. After Hall completed her transactions, she exited the bank, walking down the walkway.
{¶4} Hall slipped and fell on the walkway. Another bank patron asked Hall if she was okay, and Hall told her to be careful because the walkway was slippery. A First Merit employee came outside to check on Hall, and Hall told the employee that she believed she was not injured, and Hall left the bank without filling out an incident report. A First Merit employee subsequently went outside to salt the walkway. Within a week of the fall, Hall began experiencing pain in her lower back, buttock, leg, and hip.
{¶5} Hall filed a lawsuit against First Merit alleging that First Merit owed her a duty of protection, as a business invitee, from a hazardous, ice-covered, inclined walkway. First Merit argued that Meadowbrook was contractually obligated, according to the lease, to keep the walkway free and clear of ice and snow. Meadowbrook filed a cross-claim against Savarino, as their subcontractor for the removal of ice and snow. First Merit, Meadowbrook, and Savarino filed motions for summary judgment, and on May 15, 2018, the trial court granted all three summary judgment motions.
{¶6} Hall filed this appeal assigning 13 errors for our review:
I. The trial court erred when it granted summary judgment to First Merit when there were genuine issues of material fact precluding summary judgment in favor of First Merit.
II. The trial court erred when it granted summary judgment to First Merit when First Merit breached its duty of ordinary care to appellant, a business invitee.
III. The trial court erred when it granted summary judgment to First Merit when attendant circumstances of appellant's fall on First Merit's walkway create genuine issues of material fact as to whether the dangerous condition was open and obvious.
IV. The trial court erred when it granted summary judgment to First Merit when First Merit breached its duty of care to appellant by failing to provide a reasonably safe ingress and egress for appellant as First Merit's business invitee.
V. The trial court erred when it granted summary judgment to First Merit when First Merit had actual or implied notice of existing danger.
VI. The trial court erred when it granted summary judgment to First Merit when appellant had no alternative but to encounter natural accumulations of snow and ice in an attempt to enter or exit First Merit's property through a walkway that was the exclusive means of ingress and egress from, the bank.
VII. The trial court erred when it granted summary judgment to First Merit when First Merit was actively negligent in permitting and improper accumulation of snow and ice, which hid or covered
the dangerous condition about which First Merit knew or should have known.
VIII. The trial court erred when it granted summary judgment to First Merit when First Merit assumed the duty to remove natural accumulations of snow and ice from common areas and breached that duty by failing to render the common walkway outside the bank branch reasonably safe for appellant and its other business invitees.
IX. The trial court erred when it granted summary judgment to First Merit when First Merit was on notice of the dangerous accumulation of snow and ice on the walkway and failed to exercise reasonable care upon being notified by appellant of the dangerous condition.
X. The trial court erred when it granted summary judgment to First Merit when it was reasonably foreseeable that a person such as appellant would be injured as a result of First Merit's failure to clear the walkway of snow and ice.
XI. The trial court erred in granting summary judgment to Meadowbrook when Meadowbrook owed appellant a duty to protect her from the hazardous, ice-covered, inclined walkway, when Meadowbrook, as the property owner, knew or should have known that the natural accumulation of snow and ice concealed a hazardous condition.
XII. The trial court erred in granting summary judgment to Meadowbrook when Meadowbrook contractually assumed the duty to remove natural accumulations of snow and ice from common areas.
XIII. The trial court erred in granting summary judgment to Meadowbrook when Meadowbrook failed to exercise reasonable care in attempting to remove natural accumulations of snow and ice from the property.
II. Summary Judgment
{¶7} In Hall's assignments of error, she argues that the trial court erred by granting summary judgment to First Merit and Meadowbrook.
An appellate court reviews a trial court's decision on a motion for summary judgment de novo. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment is appropriate when, construing the evidence most strongly in favor of the nonmoving party, (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can only reach a conclusion that is adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc. , 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998).
Moore v. Schill , 8th Dist. Cuyahoga No. 107049, 2019-Ohio-349, 2019 WL 451362, ¶ 29.
{¶8} Additionally,
[o]n a motion for summary judgment, the moving party carries an initial burden of identifying specific facts in the record that demonstrate his or her entitlement to summary judgment. Dresher v. Burt , 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the moving party fails to meet this burden, summary judgment is not appropriate; if the moving party meets this burden, the nonmoving party has the reciprocal burden to point to evidence of specific facts in the record
demonstrating the existence of a genuine issue of material fact for trial. Id. at 293 . Summary judgment is appropriate if the nonmoving party fails to meet this burden. Id.
Jochum v. Listati , 8th Dist. Cuyahoga No. 106957, 2019-Ohio-166, 2019 WL 259460, ¶ 11.
{¶9} There is no question that Hall was a business invitee at First Merit. However,
[i]n Ohio, there is no duty owed to an invitee to remove natural accumulations of ice and snow that typically result from "freeze and thaw cycles which commonly cause ice formations * * *." Mubarak v. Giant Eagle, Inc. , 8th Dist. Cuyahoga No. 84179, 2004-Ohio-6011 , ¶ 18, citing Hoenigman v. McDonald's Corp. , 8th Dist. Cuyahoga No. 56010, 1990 Ohio App. LEXIS 131, 1990 WL 1334 (Jan. 11, 1990), citing Lopatkovich v. Tiffin , 28 Ohio St.3d 204, 206-207, 503 N.E.2d 154 (1986). Generally, ice formations "are considered to be natural accumulations absent a showing of negligence on the part of the landowner or occupier." Id.
Hunter v. Lehigh Gas-Ohio , 8th Dist. Cuyahoga No. 97546, 2012-Ohio-2392, 2012 WL 1952296, ¶ 8.
{¶10} Therefore,
it is well-settled that a property owner is under no duty to protect a business invitee against dangers that are known to the invitee or are so obvious and apparent to the invitee that he may reasonably be expected to discover them and protect himself against them. Sidle v. Humphrey , 13 Ohio St.2d 45, 233 N.E.2d 589 (1968), paragraph one of the syllabus. Normal winter weather conditions in Ohio are considered obvious dangers. As the Ohio Supreme Court has stated, "[t]he dangers from natural accumulations of ice and snow are ordinarily so obvious and apparent that an occupier of premises may reasonably expect that a business invitee on his premises will discover those dangers and protect himself against them." Id. at paragraph two of the syllabus.
Thus, in Ohio, a property owner has no duty to remove natural accumulations of ice and snow from private driveways, walks, and steps on the premises. Simmers v. Bentley Constr. Co. , 64 Ohio St.3d 642, 644, 597 N.E.2d 504 (1992).
Workman v. Linsz , 8th Dist. Cuyahoga No. 102473, 2015-Ohio-2524, 2015 WL 3916914, ¶ 9-10.
{¶11} However there are exceptions to the "no-duty winter rule." As noted in Bailey v. St. Vincent DePaul Church , 8th Dist. Cuyahoga No. 71629, 1997 WL 232685 (May 8, 1997), there are two exceptions:
If an occupier is shown to have had notice, actual or implied, that a natural accumulation of snow and ice on his or her premises has created a condition substantially more dangerous than a business invitee should have anticipated by reason of the knowledge of conditions prevailing generally in the area, negligence may be proven. * * * A second exception to the no-duty rule exists where the owner is actively negligent in permitting or creating an unnatural accumulation of ice and snow. Id. , citing Lopatkovich , supra.
Hunter at ¶ 9.
{¶12} Hall argues that the trial court erred when it granted summary judgment to First Merit when attendant circumstances of appellant's fall on First Merit's walkway create genuine issues of material fact as to whether the dangerous condition was open and obvious. According to Hall, on the day of the incident, it was cold and had been snowing intermittently throughout the day. The walkway was snow covered and wet. Hall also stated that she noticed the walkway was slippery and indicated that to the teller. Hall's actions demonstrate that the dangers of the walkway were open and obvious. Hall, however, must demonstrate that First Merit knew or should have known that the natural accumulation of snow and slush on the premises created a condition substantially more dangerous than Hall should have anticipated by reason of the knowledge of conditions prevailing generally in the area. According to Hall, it was snowing throughout the day. Thus, the weather conditions in the area are synonymous with the condition of the walkway.
{¶13} The case at bar is similar to the facts in Bailey v. River Properties, 8th Dist. Cuyahoga No. 86968, 2006-Ohio-3846, 2006 WL 2097494. In Bailey , the appellant arrived at a Fifth Third Bank to make a deposit. He fell on the icy walkway after it had snowed previously. The appellant filed suit against Fifth Third Bank alleging negligence in maintaining the property. The trial court granted Fifth Third Bank summary judgment, and the appellant appealed. In Bailey , the court reasoned that
[p]laintiff must also demonstrate, however, that he could not have reasonably appreciated the dangerous condition on his own before he fell. In other words, if the condition of the area was something he should have been aware of, then it is an open and obvious danger, which precludes any duty by defendants.
Id. at ¶ 18.
{¶14} The court also concluded that
the evidence demonstrates that the area where plaintiff fell constituted an open and obvious danger of which he should have been aware. Plaintiff knew it had been snowing, it was very cold, and the area towards the entrance looked black and shiny to him. He should have appreciated, therefore, the hazardous conditions. From the record before this court, reasonable minds can come to but one conclusion and that conclusion is adverse to the plaintiff.
Id. at ¶ 22.
{¶15} Like the court in Bailey , we conclude that Hall was aware of the weather conditions and was aware that the walkway was covered with snow and ice. Hall has not demonstrated that she could not have reasonably appreciate the dangerous condition on her own before she fell. We determine from the facts that it was an open and obvious danger, which precludes any duty by First Merit or Meadowbrook.
{¶16} Hall argues that First Merit has a duty to provide safe ingress and egress to and from the premises. While we agree that First Merit owed Hall this duty, however First Merit's "duty did not extend to protection against hazards from natural accumulations of ice and snow similar to surrounding conditions. Such conditions are so obvious that an occupier of premises may reasonably expect a business invitee will discover them and protect himself against them." (Citation omitted.) Tyrrell v. Invest. Assocs., Inc. , 16 Ohio App.3d 47, 474 N.E.2d 621 (8th Dist. 1984). See also Neff v. W. Res. Restaurant Mgmt. , 8th Dist. Cuyahoga No. 75356, 2000 WL 146565 (Feb. 10, 2000) ("this duty extends only to those hazards associated with ‘nonnatural accumulations of ice and snow in an area which differs markedly from surrounding conditions.’ ")
{¶17} Hall argues that the accumulation of snow and ice was not open and obvious, because there were "attendant circumstances."
"Attendant circumstances act as an exception that allows a plaintiff to avoid the open and obvious doctrine."
Cummin v. Image Mart, Inc. , 10th Dist. Franklin No. 03AP-1284, 2004-Ohio-2840 , ¶ 8, citing McGuire v. Sears, Roebuck & Co. , 118 Ohio App.3d 494, 498, 693 N.E.2d 807 (1996).
An attendant circumstance is a factor that contributes to the fall and is beyond the control of the injured party. Backus v. Giant Eagle, Inc. , 115 Ohio App.3d 155, 158, 684 N.E.2d 1273 (1996). 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. See Cash v. Cincinnati , 66 Ohio St.2d 319, 324, 421 N.E.2d 1275 (1981). An "attendant circumstance" has also been defined to include "any distraction that would come to the attention of a pedestrian in the same circumstances and reduce the degree of care an ordinary person would exercise at the time." Id. , citing McGuire , supra, at 499 .
Bailey, 8th Dist. Cuyahoga No. 86968, 2006-Ohio-3846, at ¶ 24.
{¶18} Hall, does not, however, describe or detail what attendant circumstances existed. Instead, she demonstrates that she was very aware of the danger of the slippery walkway. Once entering the bank, she told the bank employees that the walkway was slippery and someone could fall. The danger of the slippery walkway was open and obvious, and no attendant circumstances existed.
{¶19} Further, Hall argues that First Merit was on notice that the walkway was slippery because she notified the First Merit bank tellers.
If a property owner is shown to have had notice, actual or implied, that a natural accumulation of snow and ice on his premises has created a condition substantially more dangerous than what the business invitee should have expected in light of generally prevailing conditions, negligence may be proven. Debie v. Cochran Pharmacy-Berwick, Inc. , 11 Ohio St.2d 38, 227 N.E.2d 603 (1967) ; Watts v. Richmond Run #1 Condominium Unit Owners Assn. , 8th Dist. Cuyahoga No. 99031, 2013-Ohio-2695 , ¶ 16.
Workman v. Linsz , 8th Dist. Cuyahoga No. 102473, 2015-Ohio-2524, 2015 WL 3916914, ¶ 11.
{¶20} Upon entering the bank, when it first opened, Hall informed the bank tellers that the walkway was slippery. After Hall conducted her transactions, she exited the bank and fell on the walkway. A slippery walkway covered with snow and/or ice is not a condition substantially more dangerous than what Hall should have expected in light of the fact that the temperatures were low and it had been snowing all day.
An owner or occupier of land does not, however, owe a duty to business invitees to remove natural accumulations of snow and ice or to warn invitees of the dangers inherent to such accumulations. Brinkman v. Ross , 68 Ohio St.3d 82, 83, 623 N.E.2d 1175 (1993). This is because the dangers associated with natural accumulations of snow and ice are considered to be so open and obvious that an owner or occupier may reasonably expect that a business invitee will safeguard himself against those dangers. Sidle v. Humphrey , 13 Ohio St.2d 45, 233 N.E.2d 589 (1968), paragraph two of the syllabus. But, if the owner or occupier of the premises has actual or constructive notice that a natural accumulation of snow or ice has created a condition "substantially more dangerous" than what would normally be associated with snow and ice, a duty to exercise reasonable care to protect business invitees arises.
Mikula v. Tailors , 24 Ohio St.2d 48, 263 N.E.2d 316 (1970), paragraph five of the syllabus. And a duty to exercise reasonable care to protect business invitees arises if the owner or occupier of the premises actively permitted or created the dangerous or unnatural accumulation of snow or ice. Lopatkovich v. Tiffin , 28 Ohio St. 3d 204, 207, 503 N.E.2d 154 (1986). An unnatural accumulation of ice and snow is one that results from an act of a person. Porter v. Miller , 13 Ohio App.3d 93, 95, 468 N.E.2d 134 (6th Dist.1983).
Lobas v. FC Midtown L.L.C. , 8th Dist. Cuyahoga No. 102063, 2015-Ohio-2399, 2015 WL 3819278, ¶ 7.
{¶21} Hall does not demonstrate that the accumulation of snow or ice created a condition that was substantially more dangerous than what would have normally been associated with snow and slush. In addition, the time between Hall alerting the bank tellers to the slippery conditions and Hall falling on the walkway was mere minutes; not enough time to show that First Merit, not the tellers, had actual notice of the conditions. However, notice is not necessary because the natural accumulation of the snow and slush is open and obvious. "[I]t is well-settled that ‘[s]lush is a natural phenomenon of changing weather conditions.’ Sellers v. Metrohealth Clement Ctr. for Family , 8th Dist. No.84092, 2004-Ohio-4235 , ¶ 16, citing Hoenigman v. McDonald's Corp., 8th Dist. Cuyahoga No. 56010 , 1990 Ohio App. LEXIS 131 (Jan. 11, 1990)." Watts v. Richmond Run #1 Condominium Unit Owners Assn. , 8th Dist. Cuyahoga No. 99031, 2013-Ohio-2695, 2013 WL 3328293, ¶ 15.
{¶22} Hall argues, though, that First Merit was actively negligent in permitting an improper accumulation of snow and ice, which hid or covered the dangerous condition about which First Merit knew or should have known.
"The improper accumulation exception arises when a natural accumulation conceals a hazardous condition, which is substantially more dangerous than conditions normally associated with ice and snow, and about which the owner or occupier has actual or constructive knowledge." Luft v. Ravemor , 10th Dist. Franklin No. 11AP-16, 2011-Ohio-6765 , ¶ 16, citing Pesci v. William Miller & Assocs. , 10th Dist. Franklin No. 10AP-800, 2011-Ohio-6290 , at ¶ 12-13, citing Mikula v. Tailors , 24 Ohio St.2d 48, 57, 263 N.E.2d 316 (1970), and Crossman v. Smith Clinic , 3d Dist. Marion No. 9-10-10, 2010-Ohio-3552 , ¶ 15. However, this exception applies only when the accumulation hides what would otherwise be an open and obvious danger that the landowner knew or should have known about. Miller v. Tractor Supply Co. , 6th Dist. Huron No. H-11-001, 2011-Ohio-5906 , ¶ 13.
Watts at ¶ 16.
{¶23} In this case, Hall has not demonstrated that the natural accumulation of snow and slush concealed a hazardous condition. With snow, slush, and ice, ground conditions are slippery. This is an open and obvious danger. See, e.g., Jackson v. J-F Ents. , 6th Dist. Lucas No. L-10-1285, 2011-Ohio-1543, 2011 WL 1167756, ¶ 16 ("The dangers from natural accumulations of ice and snow are ordinarily open and obvious.").
{¶24} In addition, Hall argues that the courts recognize an exception to the "no-duty winter" rule when a plaintiff is provided no alternative but to encounter a natural accumulation of snow and ice in an attempt to enter or exit a property. Mizenis v. Sands Motel, Inc. , 50 Ohio App.2d 226, 362 N.E.2d 661 (6th Dist.1975). However Hall's reliance on this case is misplaced. The facts in this case are a motel patron's only means of entering and exiting his particular unit was by way of a steep, metal stairway. It snowed and the stairway was icy. The motel patron informed the motel clerk about the conditions of the stairway numerous times. On the third day, the motel patron fell going down the stairway. The trial court ruled that the motel was negligent. However, the trial court decided that the motel had sufficient notice of the icy stairway; the motel had previously removed the snow and ice during the course of the winter months; and, that a "motel guest's acceptance of a risk is not to be regarded as voluntary where the innkeeper's tortious conduct has forced upon him a choice of courses of conduct which leaves him no reasonable alternative to taking his chances." Id.
{¶25} Unlike Hall's case, the Sands Motel, Inc. case is specific to innkeepers and their guests. Also, First Merit did not have sufficient notice about the icy walkway. Hall was the first patron in the bank that morning, and the walkway's conditions were synonymous with the current weather conditions. Hall notified the teller and mere minutes later, she fell.
{¶26} Hall also argues that it was reasonably foreseeable that a person such as the appellant would be injured as a result of First Merit's failure to clear the walkway of snow and ice. We disagree.
The existence of a duty is fundamental to establishing actionable negligence, without which there is no legal liability. See Jeffers v. Olexo , 43 Ohio St.3d 140, 142, 539 N.E.2d 614 (1989). A "duty" is an obligation imposed by law on one person to act for the benefit of another person because of the relationship between them. When risks and dangers inherent in that relationship can be avoided by the obligor's exercise of care, an obligor who fails to do so may be liable to another for injuries proximately resulting from those risks and dangers if the injuries were reasonably foreseeable. See Berdyck v. Shinde , 66 Ohio St.3d 573, 578, 613 N.E.2d 1014 (1993), citing Prosser & Keeton on Torts (5th Ed.1984) 356, Section 53. If no duty exists, the analysis ends and no further inquiry is necessary. Gedeon v. East Ohio Gas Co. , 128 Ohio St. 335, 338, 190 N.E. 924 (1934).
Stazione v. Lakefront Lines, Inc. , 8th Dist. Cuyahoga No. 83110, 2004-Ohio-141, 2004 WL 63970, ¶ 22.
{¶27} In applying the open-and-obvious doctrine, we must focus on whether a duty existed.
"By focusing on the duty prong of negligence, the rule properly considers the nature of the dangerous condition itself, as opposed to the nature of the plaintiff's conduct in encountering it. The fact that a plaintiff was unreasonable in choosing to encounter the danger is not what relieves the property owner of liability. Rather, it is the fact that the condition itself is so obvious that it absolves the property owner from taking any further action to protect the plaintiff." (Citations omitted.) Armstrong v. Best Buy , 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 13.
Id. at ¶ 25.
{¶28} "As applied, the open-and-obvious doctrine abrogates any duty owed where the condition on land was open and obvious as it was in this case." Id. at ¶ 26.
A business ordinarily owes its invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition and has the duty to warn its invitees of latent or hidden dangers.
Armstrong v. Best Buy Co., Inc. , 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶5, citing Paschal v. Rite Aid Pharmacy, Inc. , 18 Ohio St.3d 203, 480 N.E.2d 474 (1985) ; Jackson v. Kings Island , 58 Ohio St.2d 357, 390 N.E.2d 810 (1979). When applicable, however, the open-and-obvious doctrine obviates the duty to warn and acts as a complete bar to any negligence claims. Id. It is the fact that the condition itself is so obvious that it absolves the property owner from taking any further action to protect the plaintiff. Id.
Hill v. W. Res. Catering, Ltd. , 8th Dist. Cuyahoga No. 93930, 2010-Ohio-2896, 2010 WL 2539668, ¶ 10.
{¶29} The record reveals that Meadowbrook owns the property where First Merit leases space to conduct business. First Merit argued that Meadowbrook was contractually responsible for removing the snow and ice from the premises. Meadowbrook filed a counter claim against Savarino where Meadowbrook contracts with Savarino to remove the snow and ice from the premises. The trial court dismissed all the claims against Meadowbrook and Savarino. For the reasons previously stated in this opinion, Hall does not have valid claims against Meadowbrook or Savarino. "In Ohio, negligence claims are barred under the open-and-obvious doctrine where the allegedly hazardous condition is readily observable." Dynowski v. Solon , 183 Ohio App.3d 364, 2009-Ohio-3297, 917 N.E.2d 286, ¶ 35 (8th Dist.). Therefore, Hall's claims are barred against all parties when the hazardous conditions were readily observable and observed by Hall herself. Although,
Ohio law does not require that such conditions be actually observed by the claimant, only that they be observable. Ryan v. Guan , 5th Dist. Licking No. 2003CA00110, 2004-Ohio-4032 , stating "[t]he dangerous condition at issue does not actually have to be observed by the plaintiff in order for it to be an ‘open and obvious’ condition under the law. Rather, the determinative issue is whether the condition is observable."
Id.
{¶30} We affirm the trial court's dismissal and overrule Hall's assignments of error.
{¶31} Judgment affirmed.
PATRICIA ANN BLACKMON, P.J., and RAYMOND C. HEADEN, J., CONCUR