Opinion
Case No. 3:04 CV 7202.
February 25, 2005
MEMORANDUM OPINION
This matter is before the Court on Defendant's motion for summary judgment (Doc. No. 17), as to which Plaintiff has filed a response (Doc. No. 29) and Defendant has filed a reply (Doc. No. 31).
This Court has jurisdiction to decide this matter pursuant to 28 U.S.C. § 1332. For the reasons stated below, Defendant's motion will be denied.
BACKGROUND
Plaintiff Larry W. Lewis ("Lewis") is an independently-contracted tractor-trailer driver. Lewis was contracted by CSX Intermodal ("CSX") to drop off an empty trailer and pick up a loaded trailer at the Clyde, Ohio distribution facility of Defendant Whirlpool Corporation ("Whirlpool").
At or about 9:45 a.m. on April 9, 2002, Lewis pulled his tractor-trailer into the Whirlpool parking lot, dropped off his empty trailer, and drove his tractor to the loading dock area. There had been substantial rainfall that day (Doc. No. 19, Lewis Depo., p. 38), and the parking lot was covered with standing water. Id. at 47-48. Lewis backed his tractor into the loading area and locked it to a loaded trailer. After the trailer was properly locked to his tractor, Lewis exited his vehicle to attach the air hose for the trailer's brakes and the electrical cord for its lights. Lewis opened the side compartment to retrieve a pair of gloves for this task, and when he stepped back to allow clearance to close the compartment door, he stepped into a pothole and fell to the pavement. Id. at 35-36. As a result of this fall, Lewis suffered a fractured right ankle, torn meniscus in his right knee, and nerve damage. Id. at 53-55.
There is some question as to whether this trailer was located at Loading Dock door 11 or 12. See Doc. No. 19, Lewis Depo., pp. 78-80. This distinction is not important for the purposes of this motion, as there are similar potholes in both locations. See Doc. No. 20, Defendant's Motion for Summary Judgment, Exhibit B.
After his fall, Lewis crawled back into his truck. When he exited the truck a second time, Lewis held on to the side of the truck and tapped his left foot on the ground, disturbing the standing water, until he found the hole that he stepped into. Id. at 42-43. In his deposition, Lewis testified:
A. When I got out, I kind of went back toward the side compartment, I was still holding on to the truck.Q. Sure.
A. And I seen what it was, I started rubbing my foot around and seen — sloshed the water, you know.
Q. And that's the first you knew that there was a hole there?
A. Yeah. Id. at 43. Lewis further testified that he could not see the hole. Id.
After finding the pothole, Lewis walked to the guard shack and asked to speak to a manager. The security guard called William Schieferstein ("Schieferstein"), Whirlpool's distribution center manager. Schieferstein asked Lewis if he wanted an ambulance or medical attention, but Lewis refused. Rather, Lewis chose to drive back to CSX's facility in Cincinnati, Ohio and drop off the trailer from Whirlpool. At CSX, Lewis filled out an accident report.
Plaintiff filed the instant action alleging that Whirlpool was negligent in failing to keep its premises safe for all invitees. Defendant seeks summary judgment on a number of grounds, including inter alia the open and obvious doctrine, primary assumption of risk, and Plaintiff's own negligence outweighing any on Defendant's part under the rubric of comparative negligence.
DISCUSSION
A. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). The moving party bears the initial responsibility of "informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). The movant may meet this burden by demonstrating the absence of evidence supporting one or more essential elements of the non-movant's claim. Id. at 323-25. Once the movant meets this burden, the opposing party "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2541, 91 L. Ed. 2d 202 (1986) ( quoting FED. R. CIV. P. 56(e)).
Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324, 106 S. Ct. at 2553; see also Harris v. General Motors Corp., 201 F.3d 800, 802 (6th Cir. 2000). Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S. Ct. at 2552.
"In considering a motion for summary judgment, the Court must view the facts and draw all reasonable inferences therefrom in a light most favorable to the nonmoving party." Williams v. Belknap, 154 F. Supp. 2d 1069, 1071 (E.D. Mich. 2001) (citing 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987)). However, "`at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter,'" Wiley v. U.S., 20 F.3d 222, 227 (6th Cir. 1994) (quoting Anderson, 477 U.S. at 249); therefore, "[t]he Court is not required or permitted . . . to judge the evidence or make findings of fact." Williams, 154 F. Supp. 2d at 1071. The purpose of summary judgment "is not to resolve factual issues, but to determine if there are genuine issues of fact to be tried." Abercrombie Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 130 F. Supp. 2d 928, 930 (S.D. Ohio 1999). Ultimately, this Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52; see also Atchley v. RK Co., 224 F.3d 537, 539 (6th Cir. 2000).
B. OPEN AND OBVIOUS DOCTRINE.
Whirlpool first claims that the pothole in question was an open and obvious condition, thus absolving it from liability.
To establish a cause of action for negligence, the plaintiff must show (1) the existence of a duty, (2) a breach of that duty, and (3) an injury proximately caused by that breach. Menifee v. Ohio Welding Prod., Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707, 710 (1984). The open and obvious doctrine states that a premises owner owes no duty to those entering his premises regarding dangers that are open and obvious. Sidle v. Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589, paragraph one of the syllabus (1968). The Supreme Court of Ohio recently reaffirmed the open and obvious doctrine in Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 788 N.E.2d 1088 (2003).
The theory behind this doctrine is that the open and obvious nature of the hazzard itself serves as a warning to the invitee. Id. at 80, 22 N.E.2d at 1089. Therefore, "the owner or occupier may reasonably expect that persons entering the premises will discover those dangers and take appropriate measures to protect themselves." Id. (quoting Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 644, 597 N.E.2d 504, 506 (1992)). A business generally owes its business invitees a duty of ordinary care in maintaining its property in a reasonably safe condition and has a duty to warn its invitees of any dangers that are not readily discoverable. Armstrong, 99 Ohio St.3d at 80, 788 N.E.2d at 1089-90 (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-andobvious doctrine obviates the duty to warn and acts as a complete bar to any negligence claims." Armstrong, 99 Ohio St.3d at 80, 788 N.E.2d at 1090.
The court may properly sustain a summary judgment against the claimant "where the hazzard is not hidden from view or concealed and is discoverable by ordinary inspection." Parsons v. Lawson Co., 57 Ohio App.3d 49, 50-51, 566 N.E.2d 698, 700 (1989). Therefore, the open and obvious doctrine precludes recovery where the danger involved is not hidden or concealed and could have been discovered by ordinary inspection. "The determination of the existence and obviousness of a danger alleged to exist on a premises requires a review of the facts of the particular case." Brown v. Classic Ventures Food Division, Inc., No. 84656, 2005 Ohio App. LEXIS 104, at *4-5 (Ohio Ct.App. 8th Dist. Jan. 13, 2005) (quoting Miller v. Beer Barrel Saloon, No. 90-TO-050, 1991 Ohio App. LEXIS 2375, at *7 (Ohio Ct.App. 6th Dist. May 24, 1991)).
In the instant action, Whirlpool claims that the pothole that caused Lewis's fall was an open and obvious condition on the property. In support, Whirlpool cites Hudson v. DaimlerChrysler Motors Co., LLC, No. 21804, 2004 Ohio App. LEXIS 3053 (Ohio Ct.App. 9th Dist. June 30, 2004), in which a defendant was granted summary judgment on the issue whether a hole was open and obvious. In Hudson, as in the instant action, the plaintiff stepped backwards and fell into a hole. Hudson is distinguishable, however, because the facts of that case clearly establish that the hole was open and notorious. First, the hole in Hudson measured four feet by nine feet, and was twenty feet deep. Id. at *2. Further, Hudson had worked around the hole for several hours, having ample time to observe the risks of his surroundings. Id. at *6.
In the present case, the pothole on which Lewis tripped was much smaller than the hole in Hudson. Further, Lewis had just arrived at Whirlpool's facility, while Hudson had worked around the hole for hours before his accident. Finally, and most importantly, the parking lot at the Whirlpool facility was covered in standing water.
Ohio courts have held that water-covered potholes can be open and obvious or concealed. In Smith v. K-Mart Discount Stores, No. 92-P-0021, 1992 Ohio App. LEXIS 5024 (Ohio Ct.App. 11th Dist. Sept. 30, 1992), an Ohio court reversed a trial court's determination that a pothole filled with water was an open and obvious condition. There, the plaintiff fell after stepping into a water-covered pothole in K-Mart's parking lot. Id. at *3. The trial court granted summary judgment for the defendant, holding that "the inability to determine the depth of a puddle is an attribute of their danger, which [the plaintiff] should reasonably be expected to protect herself against." Id. The Court of Appeals reversed, holding that the plaintiff could not be reasonably expected to appreciate the danger of the pothole because it was disguised by a puddle. Id. at *7.
In Howson v. Amorose, No. 00AP-8, 2000 Ohio App. LEXIS 5542 (Ohio Ct.App. 10th Dist. Nov. 30, 2000), the plaintiff was injured when she rode over a water-filed pothole on her bicycle. The plaintiff testified that she could not see the hole that day because it was filled with water; however, she had seen the hole on several prior occasions. Id. at *4. The trial court granted summary judgment for the defendant, holding that because she had previously seen the hole and knew that it had rained, the danger was open and obvious. Id. The Court of Appeals affirmed. The court expressly distinguished Smith, noting that Smith had no knowledge of the pothole that caused her fall. Id. at *12. Howson, on the other hand, was aware of the pothole that caused her fall, and that the potholes in that parking lot often filled with water. Id. at *12-13.
The facts in the instant action are more analogous to Smith than Howson. Lewis did not see the pothole until after he fell. In fact, Lewis had not been to the Whirlpool facility for at least ten years before the date of the accident. (Doc. No. 19, Lewis Depo., pp. 15-17). The parking lot here was also covered in standing water. It was not until Lewis tapped at the water with his foot and "sloshed the water" that the hole became visible. Id. at 42, 47-48. There is a genuine issue of material fact as to whether the pothole was an open and obvious condition. Therefore, Whirlpool is not entitled to summary judgment on this issue.
C. ASSUMPTION OF RISK
Whirlpool next argues that Lewis assumed the risk when he stepped backwards in a rainy parking lot and fell. In Anderson v. Ceccardi, 6 Ohio St.3d 110, 451 N.E.2d 780 (1983), the Supreme Court of Ohio stated:
[T]he defense of assumption of risk is merged with the defense of contributory negligence under R.C. 2315.19. The conduct previously considered as assumption of risk by the plaintiff shall be considered by the trier of fact under the phrase "contributory negligence of the person bringing the action" under R.C. 2315.19, and the negligence of all parties shall be apportioned by the court or jury pursuant to that statute.Id. at 114, 451 N.E.2d at 783. The Anderson court, however, also held that said merger did not include two classes of assumption of risk, express and primary. Id. Primary assumption of risk "concerns cases where there is a lack of duty owed by the defendant to the plaintiff." Id. Primary assumption of risk "is really a principle of no duty, or no negligence, and so denies the existence of any underlying cause of action." Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 431, 659 N.E. 2d 1232, 1236 (1996) (citation omitted). It has been otherwise stated that "[p]rimary assumption of risk is invoked where the activity undertaken involves such obvious and unavoidable risks that no duty of care is said to attach." Holmes v. Health Tennis Corp. of Am., 103 Ohio App.2d 364, 366, 659 N.E.2d 812, 813 (1995). Primary assumption of risk has been described as a legal fiction whereby a "plaintiff has tacitly consented to the risk." Collier v. Northland Swim Club, 35 Ohio App.3d 35, 37, 518 N.E.2d 1226, 1228 (1987). "[W]hen a plaintiff is found to have made a primary assumption of risk in a particular situation, that plaintiff is totally barred from recovery, as a matter of law, just as he or she would have been before Anderson." Gallagher, 74 Ohio At.3d at 431, 659 N.E.2d at 1236.
"Reasonable assumption of risk, which entails a reasonable and voluntary exposure to obvious or known danger, has been characterized as a form of primary assumption of risk based on its conceptual equivalency to express assumption of risk." Hansen v. Flying J. Travel Plaza, No. 01-3624, 2003 U.S. App. LEXIS 453, at *4 (6th Cir. Jan. 9, 2003) (citing Siglow v. Smart, 43 Ohio App.3d 55, 539 N.E.2d 636, 640-41 (1987)). A classic application of a plaintiff's primary assumption of risk is where a baseball is hit (or thrown) into the stands during the course of a game. Cincinnati Baseball Club v. Eno, 112 Ohio St. 175, 178, 147 N.E. 86, 87 (1925); Whiting v. Aerni, No. 73323, 1998 Ohio App. LEXIS 5005, at *6-9 (Ohio Ct.App. 8th Dist. Oct. 22, 1998). In fact, the Gallagher court noted that Anderson relied on Eno for the proposition that primary assumption of risk was not merged with contributory negligence under O.R.C. § 2315.19. Gallagher, 74 Ohio St.3d at 432, 659 N.E.2d at 1237.
Although § 2315.19 has since been repealed, this section applies in the instant action because Lewis's cause of action accrued before its effective repeal date, April 9, 2003.
In Eno, the Supreme Court of Ohio stated: "[I]t is common knowledge that in baseball games hard balls are thrown or batted with great swiftness, that they are liable to be thrown outside the lines of the diamond, and that spectators in positions which may be reached by such balls assume the risk thereof." Eno, 112 Ohio St. at 180-81, 147 N.E. at 87.
In Hansen, the court affirmed the district court's grant of summary judgment to the defendant as the plaintiff primarily assumed the risk of injury when he fell and broke his leg while stepping off his truck after having washed the windshield. Hansen, No. 01-3624, 2003 U.S. App. LEXIS 453, at *6-7. The Hansen court explained that the plaintiff had admitted during his deposition that he was aware of the spilled diesel fuel that resulted in slippery conditions, and that these conditions "posed a risk of injury in case he fell while servicing his truck. Flying J, therefore, had no duty to protect Hansen from the known dangers posed by washing his truck windshield in the precarious manner he chose." Id. at *7.
Whirlpool contends that Lewis did not look before stepping backwards in a rainy parking lot and that that act constitutes a primary assumption of risk. First, there is no evidence in the record that supports Whirlpool's allegation that Lewis failed to look before he stepped backwards. Though this step is well documented with deposition testimony, Lewis was not once asked if he looked at the ground before stepping back. Further, even if Lewis failed to look before stepping backwards, his actions did not constitute a primary assumption of risk. It cannot be said that the act of taking one small step backwards is ripe with such obvious and unavoidable inherent risks that no duty of care attaches. While Lewis may have been negligent in stepping backwards (particularly if it is proven that he did not look), the "no-duty" form of assumption of the risk does not apply here. Accordingly, Whirlpool is not entitled to summary judgment on this issue.
D. COMPARATIVE NEGLIGENCE
Defendant maintains that Lewis's step backwards constitutes negligence that is greater than any potential negligence attributable to Whirlpool. "Issues of comparative negligence are for the jury to resolve unless the evidence is so compelling that reasonable minds can reach but one conclusion." Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 646, 597 N.E.2d 504, 508 (1992) (citing Hitchens v. Hahn, 17 Ohio St.3d 212, 213-14, 478 N.E.2d 797, 799 (1985)). "Only in instances where there is no dispute as to any material fact and `the plaintiff's negligence was so extreme as a matter of law that no reasonable person could conclude that plaintiff was entitled to recover' is the granting of summary judgment appropriate." Tipton v. Bernie's Electric Sales Services, No. WM-02-009, 2003 Ohio App. LEXIS 1577, at *11 (Ohio Ct.App. 6th Dist., March 31, 2003) (quoting Collier, 35 Ohio App.3d at 39, 518 N.E.2d at 1230).
Given the Court's disposition of Defendant's other arguments in support of summary judgment, and under the circumstances described in the record and as set forth above, reasonable minds could differ as to whether any negligence ascribed to Plaintiff outweighs any negligence attributable to Whirlpool. Thus, Defendant is not entitled to summary judgment based on comparative negligence.
CONCLUSION
For the reasons stated above, Defendant's motion for summary judgment (Doc. No. 17) is denied. Additionally, Plaintiff's Motion to Strike the Amended Affidavit of Bill Scheiferstein (Doc. No. 35) is denied as moot.
IT IS SO ORDERED.