[Cite as Ramsay v. Menard, Inc., 2011-Ohio-3447.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ANNE RAMSAY : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellant : Hon. Sheila G. Farmer, J.
: Hon. Julie A. Edwards, J.
-vs- :
:
MENARD, INC., ET AL. : Case No. 11CA9
:
Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Case No. 09CV1832
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 11, 2011
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
JAMES E. ARNOLD GREGORY G. BARAN
W. EVAN PRICE, II 3 North Main Street
115 West Main Street Suite 500
Fourth Floor Mansfield, OH 44902
Columbus, OH 43215
Richland County, Case No. 11CA9 2
Farmer, J.
{¶1} On January 19, 2009, appellant, Anne Ramsay, was exiting a store,
Menard's, when she fell, sustaining injuries.
{¶2} On December 18, 2009, appellant filed a complaint against appellee,
Menard, Inc., and several Does, alleging negligence and seeking damages. On
September 8, 2010, appellee filed a motion for summary judgment. By order filed
December 20, 2010, the trial court found no genuine issues of material fact to exist,
granted the motion, and entered final judgment on all claims to appellee.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶4} "THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO
DEFENDANT MENARD'S, INC."
I
{¶5} Appellant claims the trial court erred in granting summary judgment to
appellee as there are general issues of material fact as to whether or not attendant
circumstances contributed to her injury and were beyond her control. We disagree.
{¶6} Summary Judgment motions are to be resolved in light of the dictates of
Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.
Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:
{¶7} "Civ.R. 56(C) provides that before summary judgment may be granted, it
must be determined that (1) no genuine issue as to any material fact remains to be
litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it
Richland County, Case No. 11CA9 3
appears from the evidence that reasonable minds can come to but one conclusion, and
viewing such evidence most strongly in favor of the nonmoving party, that conclusion is
adverse to the party against whom the motion for summary judgment is made. State
ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,
citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472,
364 N.E.2d 267, 274."
{¶8} As an appellate court reviewing summary judgment motions, we must
stand in the shoes of the trial court and review summary judgments on the same
standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30
Ohio St.3d 35.
{¶9} It is undisputed that appellant was a business invitee. Accordingly,
appellee owed appellant a duty of ordinary care to maintain the premises in a
reasonably safe condition and to warn of hidden defects. Paschal v. Rite Aid
Pharmacy, Inc. (1985), 18 Ohio St.3d 203. The open and obvious doctrine, if
applicable, is a complete bar to recovery unless the business invitee can establish
attendant circumstances. Armstrong v. Best Buy Company, Inc., 99 Ohio St.3d 79,
2003-Ohio-2573. The rationale underlying the open and obvious doctrine is that the
"open and obvious nature of the hazard itself serves as a warning and that the owner or
occupier may reasonably expect that persons entering the premises will discover those
dangers and take appropriate measures to protect themselves." Hunter v. Jamin Bingo
Hall, Lucas App. No. L-08-1086, 2008-Ohio-4485, ¶8. "Although there is no precise
definition of 'attendant circumstances,' they generally include any distraction that would
come to the attention of an invitee in the same circumstances and reduce the degree of
Richland County, Case No. 11CA9 4
care an ordinary person would exercise at the time." Carter v. Miles Supermarket,
Cuyahoga App. No. 95024, 2010-Ohio-6365, ¶18, citing McGuire v. Sears, Roebuck &
Co. (1996), 118 Ohio App.3d 494.
{¶10} It is appellant's position that her vision was focused on avoiding a store
employee maneuvering a shopping cart and therefore she changed her course; her
view of the 4x4 was obstructed by shopping carts that a store employee had used to
prop open a handicapped gate; she confronted the 4x4 a step or two after she turned to
avoid the store employee with the shopping cart; and the 4x4 was obscured by shadows
across the floor. See, Appellant's Memorandum in Opposition to Motion for Summary
Judgment filed September 24, 2010 at page 11.
{¶11} To counteract the attendant circumstances theory raised by appellant,
appellee argued the 4x4 was open and obvious; appellant was wearing her glasses at
the time of the fall; the area was properly lit; and she admitted the lighting did not
contribute to her fall. Ramsay depo. at 26, 47. Appellee argued it was appellant's
failure to look down that caused her fall. Id. at 47-48. Appellant testified she was not
distracted by something while exiting the store. T. at 52.
{¶12} The record consists of several depositions including appellant's, videotape
surveillance of the area and actual fall, and photographs of the area. As the videotape
depicts, a balloon display was over the entrance and secured by what appears to be a
continuous piece of wood. Both the display of balloons and the wood are clearly visible.
Further, given the configuration of Menard's, the area of the fall was an entrance, not an
exit, as is demonstrated by the turnstile entrance and a handicapped gate for entrance.
Richland County, Case No. 11CA9 5
It was this handicapped gate that appellant chose to exit through which was propped
open by shopping carts.
{¶13} Appellant described her exit and fall as follows:
{¶14} "Q. So what do you remember, just sort of walking unobstructed - -
{¶15} "A. Just walking towards the exit. And the next thing, I'm down on my right
side.
{¶16} "Q. Do you remember walking toward the doors and then for some reason
making a right turn and taking a few steps before you fell?
{¶17} "A. No.
{¶18} "Q. What did you fall over?
{¶19} "A. Whatever was lying there.
{¶20} "Q. Do you know today what it was?
{¶21} "A. A piece of wood. Four-by-four. Something. I don't know.
{¶22} "Q. Well - -
{¶23} "A. Something that shouldn't have been there.
{¶24} "Q. Well, you may have heard a piece of wood or a four-by four from other
people. Or do you have a recollection of tripping over a piece of wood?
{¶25} "A. I just remember flying through the air.
{¶26} "Q. So you're on your way out of the store and you're walking through the
doors, and suddenly you found yourself flying through the air, landing apparently on
your right shoulder?
{¶27} "A. Yes.
Richland County, Case No. 11CA9 6
{¶28} "Q. And as far as knowing what you tripped over, you really don't know
other than what other people have told you; is that right?
{¶29} "A. Right.
{¶30} "Q. So if people hadn't told you that you tripped over a piece of wood or a
four-by-four, you wouldn't have any idea what you tripped over; is that right?
{¶31} "A. Right.
{¶32} "Q. What happened, Mrs. Ramsay, after you found yourself on the
ground?
{¶33} "A. After I found myself on the ground? Well, I lay there for quite a while.
{¶34} "Q. Did you holler out for help or anything?
{¶35} "A. No, I did not.
{¶36} "Q. So you hit the ground and you're wondering what in the world just
happened to me?
{¶37} "A. Right.
{¶38} "Q. And then some people - -
{¶39} "A. And then I think one of the cashiers came over and she got the
manager or assistant manager.
{¶40} "Q. Did you remain on the ground - -
{¶41} "A. Yes, I did." Ramsay depo. at 31-32.
{¶42} Appellant readily admitted she did not know what she fell on as she was
not looking down. Id. at 47-48. A business owner owes no duty to a business invitee
who could have seen an obstruction if he/she would have looked down. Lydic v. Lowe's
Richland County, Case No. 11CA9 7
Companies, Inc. Franklin App. No. 01AP-1432, 2002-Ohio-5001; Breier v. Wal-Mart
Stores, Inc., Lucas App. No. L-08-1327, 2008-Ohio-6945.
{¶43} Based upon appellant's clear and unequivocal testimony, we find the trial
court did not err in granting summary judgment to appellee. The argued attendant
circumstances were not solely caused by appellee. Appellant chose to exit through an
entrance, turned to avoid a store employee with a shopping cart, and failed to look
down.
{¶44} We conclude the attendant circumstances were not sufficiently proved to
have caused the fall.
{¶45} The sole assignment of error is denied.
{¶46} The judgment of the Court of Common Pleas of Richland County, Ohio is
hereby affirmed.
By Farmer, J.
Edwards, J. concur and
Hoffman, P.J. dissents.
_s/ Sheila G. Farmer__________________
_s/ Julie A. Edwards__________________
___________________________________
JUDGES
SGF/sg 615
Richland County, Case No. 11CA9 8
Hoffman, P.J., dissenting
{¶47} I respectfully dissent from the majority opinion.
{¶48} When considering all the evidence in a light most favorable to Appellant, I
find reasonable minds could differ on whether there were sufficient “attendant
circumstances” to find the 4 x 4 was not open and obvious.
{¶49} I do not agree the mere fact the 4 x 4 could have been seen if Appellant
had looked down is determinative. An individual is not, as a matter of law, required to
constantly look downward while walking. Hudspath v. The Cafaro Company, 2005-
Ohio-6911, citing syllabus two of Grossnickle v. Village of Germantown (1965), 3 Ohio
St.2d 96. Given all the attendant circumstances surrounding the grand opening of
Appellee’s store, including, but not limited to, the festooned temporary archway
supported by the 4 x 4, its location, and Appellant’s need to maneuver her way around
various obstacles during her attempt to exit the store, I find granting Appellee summary
judgment based upon the open and obvious doctrine was error.
s/ William B. Hoffman_______________
HON. WILLIAM B. HOFFMAN
Richland County, Case No. 11CA9 9
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ANNE RAMSAY :
:
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
MENARD, INC., ET AL. :
:
Defendants-Appellees : CASE NO. 11CA9
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Richland County, Ohio is affirmed. Costs to
appellant.
_s/ Sheila G. Farmer__________________
_s/ Julie A. Edwards__________________
___________________________________
JUDGES