[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 148 ACCELERATED DOCKET JOURNAL ENTRY AND OPINION Plaintiffs-appellants, Marcia Schindler and her husband, Oswald Schindler, appeal the decision of the Cuyahoga County Common Pleas Court granting the motion for summary judgment filed by defendant-appellee, Gale's Superior Supermarket, Inc. dba Gale's Village Market. For the reasons that follow, we reverse and remand.
A review of the record reveals that Marcia Schindler (appellant) went to Gale's Village Market (Gale's Supermarket) on November 2, 1997 to shop for groceries, as she had done on numerous occasions. Near the entrance of the store is a metal rail affixed to the sidewalk for the purpose of keeping shopping carts orderly. As appellant approached the entrance, she tripped over this metal bar and sustained injury.
She thereafter filed a complaint against Gale's Supermarket alleging that its negligence resulted in her injuries. Included in the complaint was a claim for loss of consortium on behalf of appellant's husband, Oswald Schindler. Gale's Supermarket eventually moved for summary judgment on the basis that the metal rail was open and obvious and therefore Gale's Supermarket owed no duty *Page 149 to appellant. Supporting the motion were excerpts of appellant's deposition wherein she testified that she did not see the rail but would have seen it had she looked down while she was walking. Appellant1 opposed the motion asserting that the continued viability of the open and obvious doctrine is suspect as a result of the Ohio Supreme Court's recent decision in Texler v. D.O. Summers Cleaners Shirt Laundry Co. (1998), 81 Ohio St.3d 677. The trial court ultimately granted the motion without opinion.
Appellant now appeals and asserts in her sole assignment of error that the trial court improperly granted the motion for summary judgment filed by Gale's Supermarket. Succinctly, she claims that the open and obvious doctrine is no longer viable and that Texler requires that the relative fault of the parties be resolved using comparative negligence principles, which she further claims is a jury issue precluding summary judgment.
An appellate court reviews a trial court's decision on a motion for summary judgment de novo. Grafton v. Ohio Edison Co. (1996),77 Ohio St.3d 102, 105. 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 come to but one conclusion, that conclusion being adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc. (1998), 82 Ohio St.3d 367, 369-370, citing Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, paragraph three of the syllabus; see, also, Civ.R. 56(C).
In order to defeat a motion for summary judgment on a negligence claim, a plaintiff must establish that genuine issues of material fact remain as to whether (1) a defendant owed a duty of care; (2) the defendant breached this duty; and (3) the breach was the proximate cause of plaintiff's injury causing damage. Texler, 81 Ohio St.3d at 680; Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142; Menifee v. Ohio Welding Prod., Inc. (1984), 15 Ohio St.3d 75.
An owner or occupier of property owes a duty of ordinary care to invitees to maintain the premises in a reasonably safe condition so that an invitee is not unreasonably or unnecessarily exposed to danger. Paschal v. Rite Aid Pharmacy, Inc, (1985), 18 Ohio St.3d 203. While a premises owner is not an insurer of its invitees' safety, the premises owner must warn its invitees of latent or concealed dangers if the owner knows or has reason to know of the hidden dangers. Jackson v. Kings Island (1979), 58 Ohio St.2d 357, 358. *Page 150 Invitees likewise have a duty in that they are expected to take reasonable precautions to avoid dangers that are patent or obvious. See Brinkman v. Ross (1993), 68 Ohio St.3d 82,84; Sidle v. Humphrey (1968), 13 Ohio St.2d 45, paragraph one of the syllabus. Whether a duty exists is a question of law for the court to determine. Mussivand v. David (1989), 45 Ohio St.3d 314, 318.
Under the open and obvious doctrine, an owner or occupier of property owes no duty to warn invitees of hazardous conditions that are open and obvious. Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d 642, 644. The rationale behind this 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,64 Ohio St.3d at 644.
The application of comparative negligence principles, on the other hand, requires the factfinder to apportion the percentage of each party's negligence that proximately caused the plaintiff's damages. See R.C.2315.19(A)(2). Ordinarily this is an issue best determined by the jury unless the evidence is so compelling that reasonable minds can reach but one conclusion. Simmers, 64 Ohio St.3d at 646. In such a case, summary judgment is appropriate if the only conclusion a reasonable trier of fact could reach is that the plaintiff was over fifty percent negligent so as to bar recovery under comparative negligence principles. See, e.g., Hayes v. Wendy's Internatl., Inc. (Feb. 16, 1999), Warren App. No. CA98-07-074, unreported; see, also, Basar v. Steel Serv. Plus (Apr. 27, 2000), Cuyahoga App. No. 77091, unreported (McMonagle, J., concurring); Wilson v. PNC Bank, N.A. (May 5, 2000), Hamilton App. No. C-990727, unreported (Painter, J., concurring in judgment only).
Appellant urges this court to find that the open and obvious is no longer viable in light of Texler, 81 Ohio St.3d 677. In that case, plaintiff was injured when she tripped over a concrete-filled bucket that had propped a door open. Finding that reasonable minds could differ as to the allocation of negligence between the parties, the Texler court reasoned:
The legal issue presented here is whether a reasonably prudent person would have anticipated that an injury would result from walking normally on that sidewalk. This court has held that [a] pedestrian using a public sidewalk is under a duty to use care reasonably proportioned to the danger likely to be encountered but is not, as a matter of law, required to look constantly downward * * *. (Citations omitted.) This care requires a pedestrian to use his senses to *Page 151 avoid injury while walking on a sidewalk, but this does not mean that he is required as matter of law to keep his eyes upon the sidewalk at all times. It may be necessary to keep a lookout for traffic and other pedestrians to avoid collision. (Citations omitted.)
Continuing, the court stated that the question of whether the contributory negligence of a plaintiff is the proximate cause of the injury is an issue for the jury to decide pursuant to the modern comparative negligence provisions of R.C. 2315.19(A)(1). Id. at 680-681.
Indeed, several courts have relied on this language as support in limiting the applicability of the open and obvious doctrine, and this court is no exception. See Burks v. Marc Glassman, Inc. (Nov. 16, 2000), Cuyahoga App. No. 76676, unreported (refused to apply open and obvious doctrine to completely absolve defendant of any duty and instead found that the issue was one of comparative negligence to be determined by a jury); Riley v. Wendy's Internatl., Inc. (Apr. 29, 1999), Cuyahoga App. No. 73996, unreported (whether plaintiff's attention was diverted from perceiving pothole was a question of fact to be decided by jury under comparative negligence principles); Stark v. Glenmoor Prop. Ltd. (Oct. 15, 1998), Cuyahoga App. No. 73474, unreported (whether plaintiff was negligent in not perceiving hole is a question of fact to be decided by jury under principles of comparative negligence); see, also, Kerr-Morris v. Equitable Real Estate Invest. Mgt. (1999), 136 Ohio App.3d 331, 334 (dicta suggests that the open and obvious doctrine has lost its fundament after the advent of comparative negligence.); Allen v. Foxfire Golf Club (Sept. 6, 2000), Pickaway App. No. 99CA18, unreported at 12 (plaintiff's negligence to be compared to the negligence of defendant in creating possible hazard); Leis v. Dayton Medical Imaging II, Ltd. (July 30, 1999), Montgomery App. No. 17684, unreported at 9 (reasonable minds could differ over the proper distribution of negligence between the parties); Wehrle v. ABC Supply Co. (Feb. 26, 1999), Hamilton App. No. C-980476, unreported at 5 (question of fact as to whether plaintiff's comparative negligence was the proximate cause of his injury and should be decided by a jury under comparative negligence provisions of R.C. Chapter 2315); Hayes v. Wendy's Internatl., Inc. (Feb. 16, 1999), Warren App. No. CA98-07-074, unreported at 9 (trier of fact to make determination under comparative negligence statute whether plaintiff has some culpability); Lovejoy v. Sears, Roebuck Co. (June 19, 1998), Lucas App. No. L-98-1025, unreported at 15 (whether the comparative negligence of plaintiff is the proximate cause of plaintiff's injuries is a jury issue to be decided according to statutory comparative negligence provisions).
Gale's Supermarket, on the other hand, contends that the open and obvious doctrine survived the enactment of the comparative negligence statute and, in *Page 152 particular, relies on the Ohio Supreme Court's ruling in Simmers v. Bentley, 64 Ohio St.3d 642 as its support that the two co-exist despite the lack of uniform application. [S]ince Ohio enacted the comparative negligence statute, R.C. 2315.19, courts must carefully distinguish between a defendant's duty of care and a plaintiff's contributory negligence. Id. at 644. Notwithstanding appellant's argument to the contrary, this court and other courts across the state have applied the open and obvious doctrine to absolve a property owner of any duty to warn of a hazard considered to be open and obvious despite the Ohio Supreme Court's ruling in Texler. See, e.g., Nutoves v. McDonald's Rest. (May 11, 2000), Cuyahoga App. No. 77356, unreported (defendant had no duty to protect plaintiff from open and obvious oil spill in parking lot); Basar v. Steel Serv. Plus (Apr. 27, 2000), Cuyahoga App. No. 77091, unreported (defendant had no duty to protect plaintiff from open and obvious debris cluttering working area); Sheppard v. KAP Realty (Aug. 12, 1999), Cuyahoga App. No. 75860, unreported (defendant had no duty to warn of open and obvious pothole); Zaslov v. The May Dept. Stores Co. (Oct. 1, 1998), Cuyahoga App. No. 74030, unreported (pothole open and obvious negating duty to warn); see, also, Ashbaugh v. Family Dollar Stores (Jan. 20, 2000), Highland App. No. 99CA11, unreported; Hudak v. Valleyaire Golf Club, Inc. (Nov. 22, 2000), Medina App. No. 3010-M, unreported; Howson v. Amorose (Nov. 30, 2000), Franklin App. No. 00AP-8, unreported.
Thus, those courts continuing to adhere to the open and obvious doctrine's continued viability in light of the enactment of the comparative negligence statute do so on the basis that the open and obvious nature of a particular hazard negates any duty a defendant owed a plaintiff. Without any duty owed, the issue of causation is never reached and, thus, comparative negligence principles need never be applied. See Anderson v. Ruoff (1995), 100 Ohio App.3d 601, 604; Orens v. Ricardo's Restaurant (Nov. 14, 1996), Cuyahoga App. No. 70403, unreported at 13-15; see, also, Stetzy v. Mullen (Apr. 9, 1998), Cuyahoga App. No. 72270, unreported; Voelker v. Marc Glassman, Inc. (July 24, 1997), Cuyahoga App. No. 71999, unreported; Baith v. CWP Ltd. Partnership (Dec. 12, 1996), Cuyahoga App. No. 70511, unreported.
Other courts, including this court, have found it to be a question of fact as to whether a hazard is open and obvious and therefore the premises owner owes no duty to warn. Riley v. Wendy's Internatl., Inc. (Apr. 29, 1999), Cuyahoga App. No. 73996, unreported; Ohlin v. Sears, Roebuck and Co., (June 13, 2000), Mahoning App. No. 99 C.A. 13, unreported; Schuley v. Consolidated Stores Corp. (Mar. 24, 2000), Mahoning App. No. 98 C.A. 138, *Page 153 unreported; Wehrle v. ABC Supply Co. (Feb. 26. 1999), Hamilton App. No. C-980476, unreported. The existence of a duty, however, is a question of law, not fact. See Mussivand v. David,45 Ohio St.3d at 318. Because at the present the open and obvious doctrine correlates to the duty owed to an invitee, it seems contrary to law to have its application determined by the trier of fact.
Obviously, the time has come for there to be some consistency in the manner with which the courts analyze and interpret these cases, and this court and author are not exempt from this conclusion. To continue this multifarious analysis will only propagate the haphazard results evidenced above.
Because the Texler decision is the most recent pronouncement from the supreme court on this issue, its admonitions should not be lightly taken. Indeed, when analyzed in terms of the duty owed, I find the doctrine questionable because it rests on a legal fiction in that it relieves the premises owner of the duty to warn. See Basar v. Steel Service Plus (Apr. 27, 2000), Cuyahoga App. No. 77091, unreported at 12 (McMonagle, J., concurring). To say that a claim is barred because the defendant owed the plaintiff no duty to warn him of the danger is to disregard an express duty on the part of the premises owner to maintain the premises in a reasonably safe condition. Id. at 22. With this in mind, this court is of the opinion that the time has come to analyze the openness and obviousness of a hazard not in terms of the duty owed but rather in terms of causation.
The issue of a plaintiff's negligence in disregarding or failing to perceive an obvious hazard seems particularly suited to consideration under a comparative negligence standard. Reiterating, to automatically relieve a defendant of all responsibility under the fictitious theory that he was never under a duty to begin with does not comport with the premises owner's duty to maintain the premises in a reasonably safe condition. When analyzed in terms of causation, the application of the doctrine would effect the same result as it would if analyzed under the duty element if the plaintiff's negligence in causing the injury is found to be greater than the negligence of the defendant. Id. Summary judgment, therefore, should only be granted on the grounds that the hazard was open and obvious when the plaintiff's negligence in disregarding the hazard is deemed greater than that of the defendant's negligence in creating the hazard. If the percentage of the negligence or implied assumption of the risk that is attributable to the complainant * * * is greater than the total of the percentages of the negligence that is attributable to all parties from whom the complainant seeks recovery * * * the court shall enter judgment in favor of those parties. R.C.2315.19(C).
Analyzed in this manner, the legal issue in cases such as these becomes whether a reasonably prudent person should have anticipated that an injury *Page 154 would have resulted and whether the plaintiff used due care for his or her own safety, taking into account all attendant circumstances. In this case, appellant testified at her deposition that she was walking towards the entrance when she tripped over the metal rail. There was no evidence to support that the rail was covered in any way so as to obstruct her view but rather that she just did not see the metal rail because she was looking straight ahead and not down at the ground. Had she done so, she admits, she would have seen the rail and possibly avoided injury. Appellant's duty to use care, however, does not require her to constantly look downward. See Grossnickle v. Germantown (1965),3 Ohio St.2d 96, paragraph two of the syllabus; see, also, Texler,81 Ohio St.3d at 681. Visibility of the metal rail, while important, is only one of several attendant circumstances to be considered.
Issues of comparative negligence are for the jury to resolve unless the evidence is so compelling that reasonable minds can reach but one conclusion. Hitchens v. Hahn (1985), 17 Ohio St.3d 212, 213-214; Shinaver v. Szymanski (1984), 14 Ohio St.3d 51. Hence, "issues in a negligence case should be withdrawn from a jury in only exceptional cases and never when the facts concerning the conduct of the parties as well as the standard of care that should be exercised are to be determined." Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 284, quoting DiEgidio v. Kealy (Ohio App. 1959), 162 N.E.2d 171, 173.
The documentary evidence supporting Gale's Supermarket's motion for summary judgment is not so compelling that reasonable minds could reach but one conclusion. The record lacks specificity as to the location and dimensions of the metal rail as well as its position in relation to the entrance door so as to conclusively determine that Gale's is entitled to judgment in its favor as a matter of law. Consequently, it was error for the trial court to grant Gale's motion for summary judgment because the record did not establish as a matter of law that Gale's was not negligent or that appellant was barred from recovery under principles of comparative negligence.
Appellant's sole assignment of error is well taken and is sustained.
Reversed and remanded.
This cause is reversed and remanded for further proceedings consistent with the opinion herein.
It is, therefore, ordered that appellants recover from appellee costs herein.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
__________________________ TIMOTHY E. McMONAGLE, P.J.
1 Both appellants will be collectively referred to as appellant. *Page 155