[Cite as Stewart v. AMF Bowling Ctrs., Inc., 2010-Ohio-5671.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
RONALD E. STEWART, et al.,
PLAINTIFFS-APPELLANTS, CASE NO. 5-10-16
v.
AMF BOWLING CENTER, INC., et al., OPINION
DEFENDANTS-APPELLEES.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2009CV121
Judgment Affirmed
Date of Decision: November 22, 2010
APPEARANCES:
Bernard K. Bauer for Appellants
Michael P. Gilbride for Appellee, AMF Bowling Centers, Inc.
Lance K. Oliver for Appellee, Anthem Blue Cross & Blue Shield
Case No. 5-10-16
ROGERS, J.
{¶1} Plaintiff-Appellants, Ronald and Mary Stewart, appeal from the
judgment of the Court of Common Pleas of Hancock County granting AMF
Bowling Centers’ motion for summary judgment. On appeal, Ronald and Mary
(the “Stewarts”) argue that the trial court erred in dismissing their claims on
summary judgment on that basis that the injury caused to Ronald was the result of
an open and obvious hazard. Based on the following, we affirm the judgment of
the trial court.
{¶2} In February 2009, the Stewarts filed a complaint against AMF
Bowling Centers (“AMF”) and Anthem Blue Cross and Blue Shield (“Anthem”)
asserting a claim for damages in excess of $50,000 incurred as a result of injuries
Ronald suffered from a fall allegedly caused by AMF’s negligence in failing to
adequately warn patrons of the hazards of a ramp leading to the bowling lanes
within its establishment. Additionally, the Stewarts’ complaint asserted loss of
consortium damages for Mary and a demand for Anthem to seek reimbursement
for any medical expenses it paid on Ronald’s behalf.
{¶3} In March 2009, AMF filed its response, denying the allegations set
forth in the Stewarts’ complaint and asserting several affirmative defenses,
including that Ronald’s injuries were the result of intervening and superseding
causes and his comparative negligence.
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{¶4} In June 2009, Anthem filed its answer, asserting that Ronald was a
covered member of a health care plan it administered; that it had paid at least
$37,376.55 in benefits on his behalf for injuries related to this action; and, that it
had a right of subrogation and reimbursement under Ronald’s health care plan.
{¶5} In September 2009, Ronald testified via deposition that he had no
prior injuries to his left ankle; that, on February 16, 2007, he arrived at the AMF
Bowling Center around 6:30 p.m. to bowl in the firemen’s tournament; that he was
a retired volunteer firefighter; that he had previously bowled in a league at this
same establishment sometime in the 1990’s; that he bowled in that league for three
years; that the setup of the bowling center had always been such that the lanes
were on a lower level than the rest of the bowling center; that the setup of most
bowling centers has the bowling lanes lower than the rest of the facilities; that,
prior to his bowling in February 2007, he had not bowled for one year; that he had
his own bowling shoes and ball; that he arrived at the bowling center
approximately an hour and a half before his fall occurred; that, while waiting to
bowl, he purchased food from the bowling center and sat down at a table to eat;
that no one else was sitting at the table when he sat down; that, after he finished
eating, his nephew John sat down at the table, and they talked for a few minutes;
that an announcement was made to start bowling, so he stood up from the table,
stepped backwards, and fell into the step-down going to the bowling lanes; that he
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only took one step backwards before he fell; and, that, when he stepped
backwards, his foot went all the way down into the recess.
{¶6} Ronald continued that he was helped up after the fall; that he was
unable to walk and was carried out of the bowling center; that he did not feel the
pain immediately after the incident, but when he was carried out; that there were
no railings around the step-down areas; that, prior to his fall, he was aware there
was a step-down to the bowling lanes; that at no time before his fall did he walk
down into the bowling lanes; that, since his incident, the bowling center replaced
the ramp that went down to the bowling lanes with a step and added yellow
“strips” along the sides of the step (Ronald Stewart dep., p. 40); and, that, as a
result of his fall, he suffered a fractured ankle that required three surgeries.
{¶7} In November 2009, AMF filed a motion for summary judgment,
arguing that no genuine issue of material fact existed because the step-down in the
bowling center was an open and obvious hazard of which Ronald was aware and
reasonably should have been aware.
{¶8} In December 2009, the Stewarts filed a memorandum in opposition
to AMF’s motion for summary judgment, contending that genuine issues of
material fact existed on the question of whether the step-down hazard was open
and obvious, as the carpet created an optical illusion concealing the step-down,
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AMF failed to place any warning strips or railings on the side of the step-down,
and AMF placed a table and chairs next to the step-down.
{¶9} In March 2010, the trial court granted AMF’s motion for summary
judgment, stating the following in its judgment entry:
The open and obvious doctrine provides that a premises owner
owes no duty to persons entering the premises regardless of the
dangers attended [sic] thereto when those dangers are open and
obvious. Open and obvious dangers are neither hidden,
concealed from view nor non-discoverable upon ordinary
inspection. * * * This test however does not mean that the
condition has to be observed by the claimant only it [sic] could
have been reasonably and easily observed. The open and
obvious doctrine, when applicable, obviates the duty of a
premises owner to warn all invitees of premises conditions and
acts as a complete bar to a negligence claim. * * *
Conversely, the Plaintiff contends that the determination of this
area as an “open and obvious” condition constitutes a material
issue of the disputed fact. * * * Plaintiff claims that by choosing
a pattern identical for the carpet and the step down without
proper markings created [sic] an optical illusion making it
impossible for the Plaintiff to determine where to safely travel.
As found by the Third District Court of Appeals [sic] Mohne vs.
Wal-mart Stores, Inc. [sic] 2008-Ohio-6184, a condition or
obstruction that sits low to the ground in an area frequented by
customers may be an open and obvious [sic] as a matter of law
so long as it is not concealed. This Court finds no evidence in the
record to suggest the existence of an attendant circumstance.
More importantly, the Plaintiff’s own admission during the
course of his deposition testimony and his actions are dispositive
of this matter. Specifically, Stewart acknowledged that he was
aware of the step prior to the time he fell. * * * As the
Defendant established through the Plaintiff’s deposition
testimony, the Plaintiff chose to sit at a table near the entrance
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and then stepped backwards without first looking precipitating
his fall. His fall was not caused by an “optical illusion” created
by the pattern of the carpet, but by the Plaintiff’s own
forgetfulness, inadvertence, or both.
Based upon a careful review of the evidence and arguments of
counsel, the Court finds that the bowling alley ramp way, [sic]
was an open and obvious condition. Consequently, the Court
finds that there are no disputed issues of material fact and as a
matter of law the Defendant owed no duty of care to the
Plaintiff. Therefore, the Court Orders that the claims of both
Plaintiffs are dismissed.
(Mar. 2010 Decision of Motion for Summary Judgment, pp. 5-6).
{¶10} It is from the trial court’s grant of summary judgment that the
Stewarts appeal, presenting the following assignment of error for our review.
THE TRIAL COURT COMMITTED ERROR PREJUDICIAL
TO THE PLAINTIFFS-APPELLANTS [SIC], BY ENTERING
A SUMMARY JUDGMENT IN FAVOR OF THE OWNER OF
A BOWLING ALLEY ON THE BASIS THAT A CONDITION
WHICH CAUSED INJURY TO A PATRON WAS “OPEN AND
OBVIOUS,” AS A MATTER OF LAW.
{¶11} In their sole assignment of error, the Stewarts argue that the trial
court erred in granting summary judgment to AMF. Specifically, they contend
that attendant circumstances existed on the issue of whether the hazard at the
bowling center was open and obvious, such that the issue should not have been
decided as a matter of law. We disagree.
{¶12} An appellate court reviews a summary judgment order de novo.
Hillyer v. State Farm Mut. Auto. Ins. Co. (1999), 131 Ohio App.3d 172, 175.
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Accordingly, a reviewing court will not reverse an otherwise correct judgment
merely because the lower court utilized different or erroneous reasons as the basis
for its determination. Diamond Wine & Spirits, Inc. v. Dayton Heidelberg Distr.
Co., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶25, citing State ex rel. Cassels v.
Dayton City School Dist. Bd. of Ed., 69 Ohio St.3d 217, 222, 1994-Ohio-92.
Summary judgment is appropriate when, looking at the evidence as a whole: (1)
there is no genuine issue as to any material fact; (2) reasonable minds can come to
but one conclusion and that conclusion is adverse to the party against whom the
motion for summary judgment is made; and, therefore, (3) the moving party is
entitled to judgment as a matter of law. Civ.R. 56(C); Horton v. Harwick
Chemical Corp., 73 Ohio St.3d 679, 686-687, 1995-Ohio-286. If any doubts exist,
the issue must be resolved in favor of the nonmoving party. Murphy v.
Reynoldsburg, 65 Ohio St.3d 356, 358-59, 1992-Ohio-95.
{¶13} The party moving for summary judgment has the initial burden of
producing some evidence which demonstrates the lack of a genuine issue of
material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107. In doing
so, the moving party is not required to produce any affirmative evidence, but must
identify those portions of the record which affirmatively support his argument. Id.
at 292. The nonmoving party must then rebut with specific facts showing the
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existence of a genuine triable issue; he may not rest on the mere allegations or
denials of his pleadings. Id.; Civ.R. 56(E).
{¶14} “[I]n order to establish actionable negligence, one seeking recovery
must show the existence of a duty, the breach of the duty, and injury resulting
proximately therefrom.” Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 285.
At common law, the legal duty owed by a landowner to one who enters upon his
land was contingent upon the status of the entrant: trespasser, licensee, or invitee.
Shump v. First Continental-Robinwood Assoc., 71 Ohio St.3d 414, 417, 1994-
Ohio-427. ‘“Business invitees are persons who come upon the premises of
another, by invitation, express or implied, for some purpose which is beneficial to
the owner.’” Neumeier v. Lima, 3d Dist. No. 1-05-23, 2005-Ohio-5376, ¶13,
quoting Light v. Ohio University (1986), 28 Ohio St.3d 66, 68. The duty of care
owed by a landowner to a business invitee is to exercise ordinary care to keep the
premises in a reasonably safe condition so as to not expose the individual to any
unnecessary or unreasonable risks of harm. Paschal v. Rite Aid Pharmacy, Inc.
(1985), 18 Ohio St.3d 203, citing Campbell v. Hughes Provision Co. (1950), 153
Ohio St. 9. However, a landowner does not owe invitees a duty to warn of any
dangers on his property which are open and obvious. Armstrong v. Best Buy Co.,
Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, ¶5. As such, the open and obvious
doctrine “acts as a complete bar to any negligence claims.” Id. The justification
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for the 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.” Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 644,
1992-Ohio-42.
{¶15} A hazard is open and obvious when in plain view and readily
discoverable upon ordinary inspection. ‘“[E]ven an obstruction that sits low to the
ground in an area frequented by customers may be open and obvious as a matter of
law, so long as it is not concealed.’” Mohn v. Wal-Mart Stores, Inc., 3d Dist. No.
6-08-12, 2008-Ohio-6184, ¶14, quoting Johnson v. Golden Corral, 4th Dist. No.
99CA2643, 2000 WL 1358635. However, attendant circumstances may exist
which distract an individual from exercising the degree of care an ordinary person
would have exercised to avoid the danger, and “may create a genuine issue of
material fact as to whether a hazard is open and obvious.” Aycock v. Sandy Valley
Church of God, 5th Dist. No. AP 09 0054, 2008-Ohio-105, ¶26. An attendant
circumstance has been defined as follows:
“[A] factor that contributes to the fall and is beyond the control
of the injured party. * * * The phrase refers to all facts relating
to the event, such as time, place, surroundings or background
and the conditions normally existing that would unreasonably
increase the normal risk of a harmful result of the event. * * *
However, ‘[b]oth circumstances contributing to and those
reducing the risk of the defect must be considered.’”
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Williams v. Lowe’s of Bellefontaine, 3d Dist. No. 8-06-25, 2007-Ohio-2045, ¶18,
quoting Benton v. Cracker Barrel Old Country Store, Inc., 10th Dist. No. 02AP-
1211, 2003-Ohio-2890, ¶17, quoting Sack v. Skyline Chili, Inc., 12th Dist. No.
CA2002-09-101, 2003-Ohio-2226, ¶20. But, attendant circumstances do not
include any circumstance existing at the moment of a fall, unless the individual
was distracted by an unusual circumstance created by the property owner. Id.,
citing McGuire v. Sears, Roebuck & Co. (1996), 118 Ohio App.3d 494, 498.
Additionally, an individual’s failure to avoid a known hazard is not excused
because he ‘“did not think”’ or ‘“forgot.”’ Sneary v. McDonald’s Restaurant No.
3830, 3d Dist. No. 1-2000-13, 2000-Ohio-1885, quoting Raflo v. Losantiville
Country Club (1973), 34 Ohio St.2d 1, 3. Moreover, a step hazard has been found
to be open and obvious even where the colors of the step and the floor are
uniform. See Hill v. W. Res. Catering, 8th Dist. No. 93930, 2010-Ohio-2896, ¶23.
{¶16} In the case at bar, Ronald stated in his deposition that he was aware
of the step-down to the bowling lanes; that he had previously been on a league at
this bowling center and was aware that its setup had always been such that the
bowling lanes were lower than the rest of the bowling center; that most bowling
centers had lanes lower than the rest of the facilities; and, that, when he arose from
his chair, he stepped backwards into the step-down and fell, suffering a fractured
ankle.
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{¶17} Based upon Ronald’s testimony, it is clear that this hazard was open
and obvious. Not only had Stewart been a patron of this bowling center in the past
and therefore aware of this step-down to the bowling lanes, he also saw the step-
down on this particular evening. Despite his knowledge of the hazard, he chose to
sit with his back to the step-down and step backwards into it.
{¶18} Moreover, we also find that no attendant circumstances existed to
distract Ronald from the open and obvious nature of this hazard. First, Ronald
contends that warning strips should have been placed along the step-down or a
carpet pattern chosen that did not conceal the step-down. Nevertheless, any such
actions in this case would not have prevented Ronald’s fall, as he was aware of the
step-down but stepped backwards into it. Additionally, Ronald asserts that
railings should have been put in place to prevent falls of this nature. However, we
do not find that a landowner’s duty to exercise ordinary care for his patrons
requires such comprehensive and expensive alterations for these types of open,
obvious, and necessary conditions.
{¶19} Accordingly, we overrule the Stewarts’ assignment of error.
{¶20} Having found no error prejudicial to the appellants herein, in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J. and PRESTON, J., concur.
/jlr
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