Callentine v. Mill Invests.

[Cite as Callentine v. Mill Invests., 2017-Ohio-8634.]

COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
FRANCIS EUGENE CALLENTINE : Hon. Patricia A. Delaney, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellant : Hon. William B. Hoffman, J.
:
-vs- :
: Case No. 2017 AP 06 0014
MILL INVESTMENTS, LLC, ET AL :
:
Defendants-Appellees : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Tuscarawas County
Court of Common Pleas, Case No. 2016
CT 06 0416

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 17, 2017

APPEARANCES:

For Plaintiff-Appellant For Defendants-Appellees

STEVEN BRIAN TIMOTHY YAHNER/EDWARD DARK
81 Maplecrest Street S.W. 3873 Cleveland Road
North Canton, OH 44720 Wooster, OH 44691
[Cite as Callentine v. Mill Invests., 2017-Ohio-8634.]

Gwin, J.

{¶1} Appellant appeals the May 4, 2017 judgment entry of the Tuscarawas

County Court of Common Pleas granting appellees’ motion for summary judgment.

Facts & Procedural History

{¶2} On June 16, 2016, appellant Francis Callentine filed a complaint against

appellee Mill Investments, LLC, appellee Michael Kitchen (“Kitchen”), and William Walsh

(“Walsh”). Mill Investments leased the property located at 118 East First Street in

Uhrichsville to Joi and Cecil (Andy) Brown. Appellant alleged in his complaint that on

November 9, 2012, when he was an invitee at 118 East First Street, he tripped and fell

on an uneven porch and sidewalk. Appellant averred appellees were negligent by:

creating a dangerous, hazardous, and latent peril upon the premises; subjecting him to a

hidden danger and risk of injury known to appellees, but not reasonably discoverable by

appellant; failing to warn appellant of a hazard known to appellees; failing to exercise

reasonable care; and failing to maintain and keep the premises in good repair and free

from nuisance.

{¶3} Walsh filed a motion for summary judgment on October 11, 2016. Walsh

stated he had not been affiliated with Mill Investments since 2002, when he transferred

his entire ownership interest. The trial court granted summary judgment to Walsh on

November 2, 2016.

{¶4} Mill Investments and Kitchen filed a motion for summary judgment on

February 14, 2017. Appellees alleged two doctrines barred appellant’s negligence

complaint: the two-inch rule and the step-in-the-dark rule. Further, appellees argued

there was no evidence they had actual or constructive notice of the defect. Attached to
Tuscarawas County, Case No. 2017 AP 06 0014 3

the motion for summary judgment were the depositions and attached exhibits of Joi

Brown, Cecil Brown, Kitchen, and appellant. Also attached to the motion for summary

judgment was the affidavit of Phyllis Paul (“Paul”). Paul averred she took the photographs

labelled Exhibits A and B, and she measured the deviation in height between the concrete

slabs. Further, that at no point did the deviation in height depicted in Exhibits A and B

equal or exceed two inches. The photographs show two concrete slabs and a tape

measure showing the deviation in height of the concrete slabs is less than two inches.

{¶5} Joi Brown stated in her deposition that she has lived at 118 East First Street

in Uhrichsville for approximately five years. She lived at the home on November 9, 2012

and had moved into the residence approximately six months prior. She is a lifelong friend

of appellant. Joi testified she was not home when appellant fell, but arrived home

immediately after he fell; appellant told her he was stepping down and fell. She confirmed

Exhibit J is a lease agreement she and her husband have with Mill Investments. Joi

testified she was not aware of any problems with the porch or walkway to cause her any

concern. She never made any complaints to appellees that there was any problem with

the porch or walkway, or that it was dangerous or defective. She never called appellees

regarding the walkway or porch, and neither did her husband. Joi denied that anyone

else had fallen at that location.

{¶6} Cecil Brown stated in his deposition that, prior to November 9, 2012,

appellant had been to the house once or twice before. On November 9, 2012, appellant

arrived at dusk. Cecil did not see appellant fall. Cecil stated no one, including him or his

wife, complained to appellees about the walkway. Cecil testified no one fell prior to
Tuscarawas County, Case No. 2017 AP 06 0014 4

appellant in that area. However, down the way, a couple people fell by the front porch

because it was icy.

{¶7} In his deposition, Kitchen stated the lease indicates the landlord is

responsible for repairs. Thus, if a problem is not caused by normal wear and tear, it would

be the responsibility of Mill Investments to repair and problem and Mill Investments would

be responsible for the costs of the repair. Kitchen stated that before he leases a property,

he generally examines it to make sure it is in good condition. He walks through, makes

sure the fixtures (heating, cooling, electric, water) function property. Kitchen does this

examination of the property himself. Kitchen testified if there is a tenant living in a rental

property, he may drive past the property every few months, but would not go inside unless

there was a problem or complaint. Kitchen stated the back porch of the property at issue

looked like Exhibit G when he bought the property in 2011.

{¶8} When asked if the sidewalk looked like this with the height deviation prior to

November 9, 2012, Kitchen stated, “Yes. I mean I don’t – I would think so. I would

assume so; I don’t know.” Kitchen continued, “I’m sure I walked over it several times

without noticing there was a crack or elevation problem there. I am sure I walked over

before, during, and after that time.” Kitchen did not attempt to repair the sidewalk. Kitchen

testified that neither the Browns nor any previous tenant made a request of him to repair

the sidewalk. Prior to November 9, 2012, Kitchen had not been to the property since May

of 2012. Kitchen stated there have been no repairs made to the back porch since

November 9, 2012. As to the unevenness of the concrete, Kitchen testified he walked

past it, several tenants walked past it, it caused him no concerns, and he did not notice

the unevenness.
Tuscarawas County, Case No. 2017 AP 06 0014 5

{¶9} Appellant testified during his deposition that he went to 118 East First Street

in Uhrichsville because his friend put in a new woodshop in his garage and wanted him

to see it. Appellant arrived at 4:00 p.m. or 5:00 p.m. in the evening, and it was daylight

when he arrived. Appellant stated the incident occurred, “a few hours after,”

approximately two or three hours after, although appellant did not know the exact time.

Appellant testified it was dark out when the incident occurred.

{¶10} When appellant arrived at the home, he got out of his car and walked up to

the porch via the steps and knocked on the back door. After Andy (what appellant called

Cecil Brown) answered the back door, they went back down the steps and straight to the

garage to look at Andy’s woodshop. After exiting the woodshop, appellant and Andy

walked back up onto the porch and went in the house, where Andy showed him around

and where Joi, Andy, and appellant sat and talked. Appellant knows he spent a couple

of hours there, as it was daylight when he arrived at the house and dark when he left.

Appellant does not think it was raining or snowing that day and he believes the sidewalk

was shoveled, but does not remember if there was snow on the ground. Appellant

testified he was not distracted by anything when he stepped down. Appellant stated the

cause of his fall was stepping into an uneven area.

{¶11} Appellant testified he exited the house via the same door he came in, which

was the back door. When he left the house, he stepped off the porch, stepped down,

rolled his ankle, and snapped his foot. Due to the pain, he jumped in the air and flipped,

coming down on his elbow, smashing his elbow into the sidewalk. Appellant stated that

as he was exiting the door, it was dark outside. He thinks there may have been a porch
Tuscarawas County, Case No. 2017 AP 06 0014 6

light, but he does not know if it is was on when he left. However, even if it was on, it did

not illuminate the area where he was walking.

{¶12} Appellant stated he could see the porch, but there was a shadow over the

sidewalk. Appellant marked on Exhibit G where he was standing on the porch right before

he stepped down. Appellant does not remember what he was looking at when he stepped

down, although he thought it might be stained or marbleized. Appellant testified he had

no problem seeing the porch when he went into the house. However, he did not see the

step or the elevation as he exited the house because of the shadow. Appellant stated

the whole sidewalk was dark about from halfway back to the porch and was obscured

because of shadows. When asked, “had there been sufficient lighting would you have

been able to see the difference in elevation of the two abutting pieces of the sidewalk,”

appellant responded, “Yes, I would have never stepped there.” Appellant testified that

had he looked down and seen the difference in elevation, he would have stepped

somewhere else. However, he could not tell it was uneven.

{¶13} Appellant testified Joi Brown told him that both she and her son tripped over

the sidewalk. No one told appellant they complained to appellees about the porch or

sidewalk. Appellant has no idea how long this condition existed. Appellant also testified

he has no idea if the area where he fell violated any kind of building, health, housing, or

safety codes. Appellant spent the remainder of the deposition detailing his injuries and

treatment.

{¶14} Appellant filed a memorandum in opposition to appellees’ motion for

summary judgment on March 8, 2017. Appellant argued that while appellees did not have

actual notice of the defect, they should have known about the defect because Kitchen
Tuscarawas County, Case No. 2017 AP 06 0014 7

inspected the property before November 9, 2012. Further, that a determination about

whether a condition is open and obvious is fact-specific. Finally, appellant conceded that

the elevation difference was less than two inches, but argued the difference was

“substantial” and the two-inch rule is not “negligence by ruler.”

{¶15} Appellees filed a reply to their motion for summary judgment on March 13,

2017.

{¶16} The trial court issued a judgment entry on May 4, 2017. The trial court found

as follows: appellant had been in the area of the porch and walkway several times prior

to his fall during the same visit; appellant was injured when he stepped off the porch onto

the walkway below where two pieces of uneven sidewalk met, with one portion elevated

higher than the other portion; there was no indication anyone complained about the porch

or walk to appellees or requested repairs prior to appellant’s fall; and appellant testified it

was dark and there was a shadow over the sidewalk at the time of his fall and thus he did

not see the rise in the sidewalk.

{¶17} The trial court found there was no evidence to suggest the uneven elevation

was more than an insubstantial imperfection. Further, that appellant presented no

evidence the area where he fell violated any building or safety codes. The trial court

found the condition of the walkway, including the darkness or shadow at the time of

appellant’s fall, was open and obvious. Additionally, that appellant was not distracted by

anything when he stepped off the porch, and there were no factors other than the

elevation of the sidewalk and the darkness that contributed to appellant’s fall. The trial

court found there were no attendant circumstances at the time of appellant’s fall to

preclude summary judgment.
Tuscarawas County, Case No. 2017 AP 06 0014 8

{¶18} The trial court also specifically referenced appellant’s testimony that he

could not see clearly where he was stepping before he stepped off the porch and

testimony that if he had looked down and seen the difference in elevation, he would have

stepped somewhere else. The trial court found reasonable minds can only conclude

appellant’s negligence in stepping into darkness without further investigation as to what

the darkness or shadow might conceal was greater than any alleged negligence of

appellees.

{¶19} The trial court found appellees were entitled to judgment as a matter of law

and granted appellees’ motion for summary judgment.

{¶20} Appellant appeals the May 4, 2017 judgment entry of the Tuscarawas

County Court of Common Pleas and assigns the following as error:

{¶21} “I. THE TRIAL COURT ERRED IN FINDING THAT THERE IS NO

EVIDENCE IN THE RECORD TO SUGGEST THAT THE UNEVEN ELEVATION OF THE

RELEVANT SECTIONS OF THE SUBJECT SIDEWALK WAS MORE THAN AN

INSUBSTANTIAL IMPERFECTION.

{¶22} “II. THE TRIAL COURT ERRED IN FINDING THAT THE CONDITION OF

THE WALKWAY, INCLUDING THE DARKNESS OR SHADOW PRESENT AT THE TIME

OF PLAINTIFF’S FALL, WAS OPEN AND OBVIOUS.

{¶23} “III. THE TRIAL COURT ERRED IN FINDING THAT REASONABLE MINDS

COULD ONLY CONCLUDE THAT PLAINTIFF’S NEGLIGENCE WAS GREATER THAN

ANY ALLEGED NEGLIGENCE OF DEFENDANTS.”
Tuscarawas County, Case No. 2017 AP 06 0014 9

Summary Judgment Standard

{¶24} Civil Rule 56(C) in reviewing a motion for summary judgment which

provides, in pertinent part:

Summary judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits,

transcripts of evidence, and written stipulations of fact, if any, timely filed in

the action, show that there is no genuine issue of material fact and that the

moving party is entitled to judgment as a matter of law. No evidence or

stipulation may be considered except as stated in this rule. A summary

judgment shall not be rendered unless it appears from the evidence or

stipulation, and only from the evidence or stipulation, that 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, that party being

entitled to have the evidence or stipulation construed mostly strongly in the

party’s favor. A summary judgment, interlocutory in character, may be

rendered on the issue of liability alone although there is a genuine issue as

to the amount of damages.

{¶25} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311

(1981). The court may not resolve any ambiguities in the evidence presented. Inland

Refuse Transfer Co. v. Browning-Ferris Indus. of Ohio, Inc., 15 Ohio St.3d 321, 474
Tuscarawas County, Case No. 2017 AP 06 0014 10

N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the

applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733

N.E.2d 1186 (6th Dist. 1999).

{¶26} When reviewing a trial court’s decision to grant summary judgment, an

appellate court applies the same standard used by the trial court. Smiddy v. The Wedding

Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter

de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243.

{¶27} The party moving for summary judgment bears the initial burden of

informing the trial court of the basis of the motion and identifying the portions of the record

which demonstrate the absence of a genuine issue of fact on a material element of the

non-moving party’s claim. Drescher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996).

Once the moving party meets its initial burden, the burden shifts to the non-moving party

to set forth specific facts demonstrating a genuine issue of material fact does exist. Id.

The non-moving party may not rest upon the allegations and denials in the pleadings, but

instead must submit some evidentiary materials showing a genuine dispute over material

facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791 (12th Dist. 1991).

I.

{¶28} In his first assignment of error, appellant argues the trial court erred in

finding the “two-inch” rule or the “trivial imperfection rule” bars recovery in this case.

Appellant contends that, even though the elevation difference was less than two inches,

the difference was still “substantial” and the two-inch rule is not a bright-line test, but

depends on the circumstances.
Tuscarawas County, Case No. 2017 AP 06 0014 11

{¶29} The Ohio Supreme Court has declined to hold property owners and

occupiers liable as a matter of law for injuries due to minor or trivial imperfections that

were not unreasonably dangerous, are commonly encountered, and to be expected. In

Kimball v. Cincinnati, 5 Ohio St.2d 60, 213 N.E.2d 734 (1953), the Ohio Supreme Court

held that a height variation in pavement levels less than two inches is a slight defect as a

matter of law that precludes a finding of negligence. In Helms v. American Legion, Inc.,

5 Ohio St.2d 60, 213 N.E.2d 734 (1966), the Ohio Supreme Court reaffirmed its holding

in Kimball and extended the two-inch rule to privately owned or occupied properties.

{¶30} In Cash v. Cincinnati, 66 Ohio St.2d 319, 421 N.E.2d 1275 (1981), the Ohio

Supreme Court again reviewed the two-inch rule. The Court clarified the two-inch rule

and stated courts must also consider any attendant circumstances in determining whether

liability exists for trivial defects. Thus, in Cash, the Ohio Supreme Court established that

a height difference of two inches or less is insubstantial as a matter of law, unless

attendant circumstances are shown to elevate the defect to an unreasonably dangerous

condition. Id.

{¶31} There is no precise definition of attendant circumstances. Mulcahy v. Best

Buy Stores, LP, 5th Dist. Delaware No. 13CAE060051, 2014-Ohio-1163. Attendant

circumstances are factors that contribute to a fall and are beyond the injured person’s

control. Id. The analysis of attendant circumstances also uses an objective test and the

court should not consider the particular actions of the parties in the case. Id. Attendant

circumstances do not include any circumstances existing at the moment of a fall, unless

the individual was distracted by an unusual circumstance created by the property owner.

Id.
Tuscarawas County, Case No. 2017 AP 06 0014 12

{¶32} In this case, there is no dispute the elevation between the two pieces of

sidewalk was less than two inches. Appellant conceded in his brief in opposition to

appellees’ motion for summary judgment the elevation difference was less than two

inches. Further, appellant identified the elevation difference as the cause of his fall in

Exhibit G, which measured at under two inches (Exhibit A, Exhibit B, and Affidavit of

Phyllis Paul).

{¶33} While appellant is correct that the two-inch rule is not a “bright-line” test,

the other circumstances to consider that may elevate the defect to an unreasonably

dangerous condition are attendant circumstances. However, appellant did not testify to

any attendant circumstances and did not direct the trial court or this Court to any attendant

circumstances. Rather, appellant testified it was not raining or snowing, he had no

problem seeing the step when he entered the house, and he was not distracted by

anything when he fell. Accordingly, we find reasonable minds could only conclude the

defect was trivial and was not rendered a substantial one because of any attendant

circumstances. See Carpenter v. Mount Vernon Gateway, Ltd., 5th Dist. Knox No.

13CA6, 2014-Ohio-465 (granting summary judgment based on the trivial defect doctrine

when the defect was 1.5 inches deep and there was nothing diverting the plaintiff’s

attention when she walked); Galo v. Carron Asphalt Paving, Inc., 9th Dist. Lorain No.

08CA009374, 2008-Ohio-5001 (finding as a matter of law a 1.5 inch difference in height

was trivial when the plaintiff testified if she had looked down, she would have seen the

ridge).
Tuscarawas County, Case No. 2017 AP 06 0014 13

{¶34} Appellant’s first assignment of error is overruled. The trial court properly

applied the trivial defect rule to bar appellant’s negligence claim, as no duty exists where

an alleged defect is minor or insubstantial. Id.

II. & III.

{¶35} In his second and third assignments of error, appellant contends the trial

court erred in finding the condition of the walkway, including the shadow or darkness, was

open and obvious and in finding his negligence was greater than that of appellees.

However, in the body of his brief addressing these assignments of error, appellant argues

reasonable minds may find appellees breached their duty to appellant as an invitee.

Specifically, that appellees should have known of the elevated concrete slab and that the

question of open and obvious is fact-specific.

{¶36} The trial court applied the step-in-the dark rule in conjunction with the open

and obvious doctrine in this case and found the darkness of the walkway was open and

obvious, and that appellant’s negligence in stepping into darkness without further

investigation as to what the darkness or shadow might conceal was greater than any

alleged negligence of appellees. Appellant does not specifically address the step-in-the-

dark rule in his brief, but does argue the open and obvious doctrine is fact-specific and

should be determined on a case-by-case basis.

{¶37} An invitee is defined as a person who rightfully enters and remains on the

premises of another at the express or implied invitation of the owner and for a purpose

beneficial to the owner. Mulcahy v. Best Buy Stores, Inc., 5th Dist. Delaware No.

14CAE060051, 2014-Ohio-1163. The owner or occupier of the premises owes an invitee

a duty to exercise ordinary care to maintain its premises in a reasonably safe condition,
Tuscarawas County, Case No. 2017 AP 06 0014 14

such that an invitee will not unreasonably or unnecessarily be exposed to danger.

Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 480 N.E.2d 474 (1985). A

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, 58 Ohio St.2d

357, 390 N.E.2d 810 (1979).

{¶38} However, a premises owner is not an insurer of its invitees’ safety against

all forms of accidents that may happen. Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio

St.3d 203, 480 N.E.2d 474 (1985). Under Ohio law, a business owner owes no duty to

protect an invitee from dangers that are known to the invitee or are so obvious and

apparent to the invitee that he or she may be reasonably expected to discover them and

protect him or her against them. Sidle v. Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589

(1968). In Armstrong v. Best Buy Co., Inc., the Ohio Supreme Court found that a premises

owner owes no duty to persons entering the premises regarding dangers that are open

and obvious. 99 Ohio St.3d 79, 788 N.E.2d 1088 (2003). The rationale of this doctrine

is that the open and obvious nature of the hazard itself serves as a warning, so that

owners reasonably may expect their invitees to discover the hazard and take appropriate

measures to protect themselves against it. Simmers v. Bentley Constr. Co., 64 Ohio St.3d

642, 597 N.E.2d 504 (1992).

{¶39} When considering whether a condition is open and obvious, the court must

consider the nature of the condition itself, not the plaintiff’s conduct in encountering the

condition. Jacobsen v. Coon Restoration & Sealants, Inc., 5th Dist. Stark No. 2011-CA—

00001, 2011-Ohio-3563. However, the dangerous condition at issue does not actually

have to be observed by the plaintiff to be an open and obvious condition under the law.
Tuscarawas County, Case No. 2017 AP 06 0014 15

Kraft v. Johnny Biggs Mansfield LLC, 5th Dist. Richland No. 2012 CA 0068, 2012-Ohio-

5502. The determinative question is whether the condition is observable. Id. The open

and obvious doctrine applies to common law premises liability even when it involves

claims against a landlord. Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, 857

N.E.2d 1195. When applicable, the open and obvious doctrine obviates the duty to warn

and acts as a complete bar to any negligence claims. Bovetsky v. Marc Glassman, Inc.,

5th Dist. Stark No. 2016CA00122, 2016-Ohio-7863.

{¶40} In most situations, whether a danger is open and obvious presents a

question of law. Aycock v. Sandy Valley Church of God, 5th Dist. Tuscarawas No. 2006

AP 09 0054, 2008-Ohio-105. Though the determination of the existence of and the

obviousness of a danger alleged to exist requires a review of the facts of the case, where

only one conclusion can be drawn from the established facts, the issue of whether a risk

was open and obvious may be decided by a court as a matter of law. Id.

{¶41} An exception to the open and obvious doctrine is the existence of attendant

circumstances. Id. For this exception to apply, an attendant circumstance must divert

the attention of the injured party, significantly enhance the danger of the defect, and

contribute to the injury. Bovetsky v. Marc Glassman, Inc., 5th Dist. Stark No.

2016CA00122, 2016-Ohio-7863. However, as detailed above, appellant did not testify to

any attendant circumstances and did not direct the trial court or this Court to any attendant

circumstances. Rather, appellant testified it was not raining or snowing, he had no

problem seeing the step when he entered the house, and he was not distracted by

anything when he fell. Accordingly, there was nothing to divert the attention of appellant,

significantly enhance the danger of the defect, or contribute to the injury.
Tuscarawas County, Case No. 2017 AP 06 0014 16

{¶42} Appellant cites two cases in support of his argument that the open and

obvious doctrine is an extremely factual inquiry and should not be decided via summary

judgment. However, we find the cases cited by appellant distinguishable from this case.

{¶43} In Carpenter v. Marc Glassman, Inc., the Eighth District found reasonable

minds could differ on whether a display platform in a store was open and obvious and

whether the plaintiff knew of its danger or may reasonably have been expected to discover

it and protect against it, given that the platform she tripped on was movable, filled with

merchandise, and given that the plaintiff’s view had been blocked by a movable display

rack filled with merchandise. 124 Ohio App.3d 236, 705 N.E.2d 1281 (1997). In Klauss

v. Marc Glassman, Inc., the Eighth District found reasonable minds could differ as to

whether the hazard was open and obvious when the view of the pallet plaintiff tripped on

was obscured by a bench and merchandise. 8th Dist. Cuyahoga No. 84799, 2005-Ohio-

1306. In this case, there was not a movable display rack or bench/merchandise blocking

the hazard. Rather, appellant testified he could have seen the elevation if there had been

sufficient lighting and that he saw the elevation when he previously traversed the porch

hours earlier.

{¶44} We find this case is analogous to those cases finding no genuine issue of

material fact exists, particularly the case of Tomasko v. Sohnly, 5th Dist. Delaware No.

15-CAE-10-0078, 2016-Ohio-2698, in which we found summary judgment appropriate

where the plaintiff was aware it was dark, but she went onto the balcony anyway and

testified if she had stepped out onto the balcony in daylight, she would have appreciated

the height of the step. See also, Aycock v. Sandy Valley Church of God, 5th Dist.

Tuscarawas No. 2006 AP 09 0054, 2008-Ohio-105 (finding no genuine issue of material
Tuscarawas County, Case No. 2017 AP 06 0014 17

fact exists as to whether the elevation of the porch was open and obvious when the

plaintiff testified he observed the height elevation between the porch and the cars passing

by); Bovetsky v. Marc Glassman, Inc., 5th Dist. Stark No. 2016CA00122, 2016-Ohio-7863

(holding reasonable minds could only conclude the height difference between the

sidewalk and parking lot was open and obvious when the plaintiff testified the elevation

was noticeable if she had looked).

{¶45} In conjunction with the open and obvious rule, the trial court also applied

the step-in-the-dark rule. Appellant alleges the darkness contributed to his fall. This

Court has previously held that “darkness is always a warning of danger, and may not be

disregarded.” Aycock v. Sandy Valley Church of God, 5th Dist. Tuscarawas No. 2006 AP

09 0054, 2008-Ohio-105 (finding the argument that the porch was dimly lit, making the

elevation unperceivable, to be unpersuasive). The step-in-the dark-rule holds generally

that one who, from a lighted area, steps into darkness without “knowledge, information,

or investigation as to what darkness might conceal, is guilty of contributory negligence as

a matter of law.” Tomasko v. Sohnly, 5th Dist. Delaware No. 15-CAE-10-0078, 2016-

Ohio-2698, quoting Hissong v. Miller, 186 Ohio App.3d 345, 2010-Ohio-961, 927 N.E.2d

1161 (2nd Dist.); Posin v. A.B.C. Motor Court Hotel, Inc., 45 Ohio St.2d 271, 344 N.E.2d

334 (1976); Jeswald v. Hutt, 15 Ohio St.2d 224, 239 N.E.2d 37 (1968).

{¶46} The rationale behind the rule is “grounded in the idea that darkness is

nature’s own warning to arouse the natural instinct of self-preservation.” Id. Thus,

because “darkness is a warning, for one’s own protection, it may not be disregarded and

if one does unreasonably disregard the darkness, she may be precluded from recovering

damages for resulting injuries.” Id. Such a disregard of darkness may preclude the
Tuscarawas County, Case No. 2017 AP 06 0014 18

recovery of damages for personal injuries when the plaintiff is chargeable with negligence

which was a direct and contributing cause of her misfortune. Jeswald v. Hutt, 15 Ohio

St.2d 224, 239 N.E.2d 37 (1968).

{¶47} The trial court found appellant was contributorily negligent when he

intentionally stepped from the lighted area to the area in darkness and concluded this

negligence was a bar to recovery and that the condition of the walkway, including the

darkness or shadow, was open and obvious. We agree with the trial court.

{¶48} Appellant stated he arrived when it was daylight. However, he testified the

incident occurred when it was dark, it was dark when he left the house, and, when he was

exiting the door, it was dark outside. Appellant testified there may have been a porch

light at the home. However, he was not sure it was on when he left the house. Further,

even if it was on when he left the house, it did not illuminate the area where he was

walking.

{¶49} Appellant had the opportunity to view the elevation difference in ample light

several times, as he first navigated the back porch when he arrived and knocked on the

door, again when he went into the garage with Mr. Brown, and a third time when they

returned to the house via the back porch. Appellant stated he had no problem seeing the

porch and the elevation difference when he went into the house or when he went to the

door the first time prior to going to the garage. Appellant testified he did not see the

elevation when he left the house because of the shadow and that the whole sidewalk was

dark and obscured from halfway back the porch.

{¶50} When appellant was asked, “had you looked down and seen the difference

in elevation, would you have stepped there, or stepped somewhere else,” he responded,
Tuscarawas County, Case No. 2017 AP 06 0014 19

“I would have stepped somewhere else.” Finally, when appellant was asked, “had there

been sufficient lighting out there would you have been able to see the difference in

elevation of the two abutting pieces of the sidewalk,” appellant testified, “Yes, I would

never have stepped there.”

{¶51} Accordingly, we find reasonable minds could only conclude appellees owed

no duty to warn appellant pursuant to the open and obvious doctrine and appellant was

contributorily negligent when he intentionally stepped from the lighted area to the area in

darkness. Thus, appellant’s claims are barred by the open and obvious doctrine, in

conjunction with the step-in-the-dark doctrine.

{¶52} Appellant spends the remaining portion of his brief arguing that there is a

genuine issue of material fact as to whether appellees breached a duty owed to appellant

because the record establishes appellees should have known of the concrete slab.

Appellant contends that since Kitchen inspected the property prior to November 9, 2012,

he should have known about the hidden danger posed by the elevation difference.

However, as detailed above, both the trivial imperfection rule and the step-in-the-dark rule

in conjunction with the open and obvious rule bar appellant’s recovery as appellees owed

no duty to warn appellant of the elevation.

{¶53} Further, under both R.C. 5321.04 (“Landlord Obligations”) and common law

negligence, a landlord is excused from liability “if he neither knew nor should have known

of the factual circumstances that caused the violation.” Sikora v. Wenzel, 88 Ohio St.3d

493, 727 N.E.2d 1277 (2000). In the absence of actual or constructive knowledge, a

landlord is not liable. Id.
Tuscarawas County, Case No. 2017 AP 06 0014 20

{¶54} It is undisputed that appellees did not have actual knowledge of the height

deviation. Appellant testified no one told him they complained to appellees about the

porch or sidewalk. Mrs. Brown and Mr. Brown testified they did not complain to appellees

about the porch or the sidewalk. Kitchen testified that neither the Browns nor any previous

tenant made a request of him to repair the sidewalk.

{¶55} As such, appellant must demonstrative constructive knowledge in order to

succeed on his claim. In order to charge appellees with constructive knowledge, “it must

appear that such nuisance exited in such a manner that it could or should have been

discovered, that it existed for a sufficient length of time to have been discovered, and that

if it had been discovered it would have created a reasonable apprehension of a potential

danger.” Beebe v. Toledo, 168 Ohio St. 203, 151 N.E.2d 738 (1958). In this case,

appellant testified he had no idea how long the alleged defect existed. Kitchen testified

he and tenants walked over the sidewalk several times without noticing an elevation

problem. Further, that when he walked past it, it caused him no concerns. Appellant did

not present any testimony or evidence to dispute Kitchen’s assessment of the elevation

or any evidence as to how long the unevenness existed. Accordingly, we find there is no

genuine issue of material fact as to whether appellees had constructive notice of the

alleged hazard. See Maynard v. Winters, 5th Dist. Tuscarawas No. 2012 AP 05 0035,

2012-Ohio-6286, Au v. Waldman, 5th Dist. Richland No. 2010 CA 112, 2011-Ohio-2233.

Appellant’s second and third assignments of error are overruled.

{¶56} Based on the foregoing, appellant’s assignments of errors are overruled.
Tuscarawas County, Case No. 2017 AP 06 0014 21

{¶57} The May 4, 2017 judgment entry of the Tuscarawas County Court of

Common Pleas is affirmed.

By Gwin, J.,

Delaney P.J., and

Hoffman, J., concur