[Cite as McCoy v. Wasabi House, L.L.C., 2018-Ohio-182.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
SHERRYL MCCOY : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellant : Hon. Earle E. Wise, J.
:
-vs- :
: Case No. 2017CA00098
WASABI HOUSE, LLC, ET AL :
:
Defendants-Appellees : O P I N I ON
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Case No. 2016CV02081
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 16, 2018
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
WILLIAM J. DAVIS CRAIG G. PELINI
ARONSON, FINEMAN & DAVIS CO. NICOLE H. RICHARD
124 EAST FIFTH STREET PELINI, CAMPBELL & WILLIAMS, LLC
EAST LIVERPOOL, OH 43920 8040 CLEVELAND AVE. NW, STE. 400
NORTH CANTON, OH 44720
Stark County, Case No. 2017CA00098 2
Gwin, P.J.
{¶1} Appellant appeals the May 17, 2017 judgment entry of the Stark County
Court of Common Pleas granting appellee’s motion for summary judgment.
Facts & Procedural History
{¶2} On September 20, 2016, appellant Sherryl McCoy filed a negligence
complaint against appellee Wasabi House, LLC. Appellant alleged in her complaint that
on October 17, 2014, at 5:45 p.m., while she was holding onto the handrail and walking
on the ramp leading to the entrance doors, she tripped on an uneven area on the ramp
covered by a rubber mat and sustained injuries. Appellee filed an answer on October 21,
2016. Appellee then filed a motion for summary judgment on April 11, 2017. Appellee
alleged two doctrines barred appellant’s negligence complaint: the open and obvious
doctrine and the two-inch rule. Appellant filed a brief in opposition to appellee’s motion
for summary judgment and argued the two-inch rule did not apply and contended whether
the condition was open and obvious was a jury question.
{¶3} In her deposition, appellant stated that, as a result of her fall on October 17,
2014, she sustained a right leg puncture wound and her right femur was shattered such
that the doctor had to put in a rod, plate, and screws. Appellant lives in Pennsylvania and
came to Canton earlier that day to celebrate an occasion with her family. Appellant had
never been to Wasabi House before. When she arrived at Wasabi House, appellant
parked in the lot to the left-hand side of the building as the restaurant faces the street.
Appellant stated when she arrived at Wasabi on October 17, 2014, it was 5:45 p.m., it
was still light out, there was no precipitation, she had no visibility problems, and the light
was such that she could see where she was walking. Appellant testified her niece and
Stark County, Case No. 2017CA00098 3
nephew were ahead of her with their children. Appellant does not have any visual or
vision issues.
{¶4} Appellant stated that as she began to go up the ramp, she could see it was
a ramp, could see the condition of the ramp as she was walking, could see the ramp was
going up to the landing, could see a black mat on the ramp, and knew the handrail ended
at the top of the ramp. She was walking up the right-hand side of the ramp with her hand
on the handrail. Appellant testified, “she saw nothing to make [her] think there was any
reason I shouldn’t step up.” Appellant knew she was walking up a ramp, could see the
condition of the ramp, and was able to look down and see where she was putting her foot.
She stated as she was walking upward, it was obvious it was a ramp and obvious there
was a runner on the ramp. Appellant identified Exhibit A as a picture of the ramp she was
walking up and stated she could see the ramp, black runner, and black mat on the day in
question. Appellant testified she made the conscious decision to use the ramp.
{¶5} Appellant stated as she was walking up the ramp, she could see the wood
and rubber mat. Appellant testified the lead foot was her right foot, which went up onto
the tile itself. Appellant believes her left toe hit something, causing her to fall, but when
asked where her left toe hit, appellant stated, “I’m going to say I’m not positive.” Appellant
stated she was able to see the tile as she was placing her right foot on the tile and, as
she was beginning to move her left foot forward, she was able to see the area directly in
front of her. She knew she was going from the ramp to the tile. Appellant testified there
was nothing except people ahead of her walking up the ramp, and the area where she
fell was capable of observation within her field of vision.
Stark County, Case No. 2017CA00098 4
{¶6} Appellant confirmed she had just walked over the same area with her right
foot safely. When asked what was different about moving her left foot that was different
from her right foot, appellant responded, “I don’t know.” Appellant testified that, at the
time her fall occurred, her nephew holding an infant safely walked across the area, as did
her niece and her sister. Appellant stated that one of the ambulance drivers told her this
happened before at Wasabi, but appellant had no personal knowledge of any previous
falls.
{¶7} Appellant stated her nephew returned to Wasabi after the accident and took
photographs. As to the photographs taken by her nephew, appellant testified she
believes the photographs taken by her nephew helped tell her what caused her to fall.
{¶8} On direct examination, appellant testified she could see there was a ramp
in front of her, could see the runner from the bottom to the top, could see the black mat
at the top, and none of these things looked hazardous to her. Appellant stated she could
not see what was under the black mat and that she was not there when they peeled back
the black mat. Appellant testified there was “nothing to distract her” as she was walking
towards the door, and that she looked at the floor and entrance as she was going up the
ramp.
{¶9} Appellant also attached her own affidavit to her response to the motion for
summary judgment. In her affidavit, appellant averred there was nothing visible on the
black mat that covered the end of the ramp and porch to cause her to trip and fall. She
stated she had viewed the tiled porch and there appeared no obstructions before her.
Appellant averred as she stepped off the end of the ramp and onto the porch with her
right foot, the toe of her left foot caught, and she stumbled toward the entrance door seven
Stark County, Case No. 2017CA00098 5
feet away. When her left foot caught, it tripped her, and she could not recover. Appellant
stated upon taking the step off the ramp and onto the porch, she was looking forward and
following her family. Appellant averred there was no visible hazard on the black rubber
mat as she walked on it and no abrupt difference in the level between the porch and the
end of the ramp was visible to catch the toe of her left foot. Further, that she had no
reason to look down at her left foot after her right foot reached the porch because the
porch looked free and clear of anything that would impede her step.
{¶10} Appellant averred that as she reached the top of the ramp and let go of the
handrail, she was paying attention to her niece a step ahead of her, her sister Evelyn who
was carrying a child, her nephew who was carrying a child, and to others entering the
porch from the front stairs. She stated her attention was drawn to her family and other
persons on the porch and the activity entering the restaurant through the door.
{¶11} Also attached to appellant’s response to the motion for summary judgment
is the affidavit of Dustin Willgohs (“Willgohs”), appellant’s nephew. Willgohs averred that
on the day in question, appellant was a step behind his wife as they all walked up the
ramp and, as she was walking on the mat-covered end of the ramp where it adjoined the
porch or landing, she stumbled forward towards the entrance door, falling on the tiled
porch. Willgohs stated he returned to the restaurant on October 17, 2014 to see what
caused appellant to fall and the ramp, runner on the ramp, and mat on the top of the ramp
looked fine. However, he noticed some “give” to the mat upon downward pressure in the
area of the ramp adjoining the porch. Willgohs took four photographs on October 17,
2014 of the area in question and went back on October 24, 2017 to take five additional
photographs. The photographs are attached to his affidavit.
Stark County, Case No. 2017CA00098 6
{¶12} Appellant also submitted the affidavit of Kurtis Whitling (“Whitling”), a
mechanical engineer at CED Technologies. Whitling stated he inspected the ramp at
issue on December 30. He averred that, with the mat removed, the vertical height
difference at the transition from the wooden ramp to the tile floor ranged from 1 1/8 inch
at the west end, to 1 ¼ inch in the center, to 7/8 inch at the east end of the ramp. Whitling
opined the sharp vertical offset provided a tripping hazard which would be a dangerous
condition for patrons and that the hazard was hidden by the black material and black
rubber mat. Whitling also opined that the idea that a two-inch offset is insubstantial
conflicts with all standards of construction. He concluded the vertical height difference
between the tile and base of the ramp where appellant’s left toe caught was between 1
1/8 inch and 1 ¼ inch and caused her to stumble. Whitling also opined as to how the
hazard should have been fixed by properly replacing the mortar built up on the west side
of the ramp.
{¶13} Appellant filed the deposition of Nan Lin (“Lin”). Lin testified that when the
restaurant opened in 2009, the ramp is “pretty much” how it is now, and they have not
changed the dimension or structure of the ramp at all. The ramp was there when Lin
purchased the property. The tiles, handrails, and slope of the ramp have not changed
since he purchased the restaurant in 2009. Lin did put in lights in the area to improve
visibility and also put in a non-slip runner on the ramp.
{¶14} The trial court issued a judgment entry on May 17, 2017. The trial court
found that a black rubber mat ran over the top edge of the ramp and onto the tiled platform
and, under the mat, the wooden ramp was slightly lower than the platform, and a small
lip existed where the ramp transitioned to the platform. Further, that photographs taken
Stark County, Case No. 2017CA00098 7
shortly after the incident show a small hump visible beneath the rubber mat where it lay
across the transition from the ramp to the platform. The trial court noted the height of the
“lip was reduced by the rubber mat lying across it,” and, according to appellant’s expert
report, the height of the lip was approximately one inch. The trial court noted the following
testimony of appellant: appellant admits she observed the black runner and could clearly
see the area where the mat transitioned onto the tiled platform; appellant admits she was
able to negotiate the transition with her right foot without any problem, but when she
stepped with her left foot, her toe caught, she stumbled and fell; appellant admits the area
where she was walking was observable and nothing obstructed her ability to view the
ramp and tile platform; and while she stated in her affidavit she was paying attention to
family and patrons ahead of her on the ramp, she testified in her deposition that she was
not distracted by anything as she walked up the ramp.
{¶15} The trial court found, based upon the testimony of appellant and the
photographs submitted showing a slight lip at the transition from the end of the ramp to
the tiled platform, the defect was open and obvious. The trial court stated the exposed
lip at the edge of the black runner and slight hump in the mat is clearly shown in
appellant’s own photographs. Further, that the rubber mat served to smooth over the
transition from the ramp to the platform without actually concealing the transition. The
trial court noted appellant’s admissions that she could see the ramp, knew the ramp was
going up to the landing, and knew the black rubber mat lay across the transition. The trial
court found appellant’s testimony that she “saw nothing to make me think there was any
reason why I shouldn’t step up” important, as it meant appellant understood she had to
step up onto the landing. The trial court found reasonable people viewing the
Stark County, Case No. 2017CA00098 8
photographs can only conclude the slight difference in height between the end of the ramp
and tiled platform was open and obvious.
{¶16} Further, that appellant failed to produce any evidence of attendant
circumstances. While she stated in her affidavit her “anticipation and attention” was
drawn to her family and the activity entering through the restaurant, the trial court found
these are not circumstances beyond her control. Rather, appellant was simply describing
her own activities at the time of the fall. The trial court also relied on appellant’s testimony
that she was not distracted by anything when she fell.
{¶17} The trial court also found the trivial defect or two-inch rule applies to bar
appellant’s claim. The trial court stated appellant’s evidence establishes the greatest
differential between the ramp and the platform was 1 ¼ inch and these measurements
were taken without the black runner or map over the lip. Further, appellant’s expert report
and photographs demonstrate that, with the mat present, the offset is approximately one
inch.
{¶18} The trial court found there is no evidence of attendant circumstances to
rebut the two-inch rule, as the weather was dry, it was light out, appellant stated she had
no visibility problems, appellant testified there was nothing obstructing her view of the
ramp or the threshold, appellant stated she was not distracted, appellant was able to
negotiate the lip with her right foot without any difficulty an instant earlier, and appellant
was not able to state with certainty what her left toe caught on. As to appellant’s argument
that the rubber mat itself was an attendant circumstance because it hid the offset, the trial
court found appellant’s photographs show the lip at the transition from the ramp to the
tiled platform is clearly visible as one approached the top of the ramp. Further, appellant’s
Stark County, Case No. 2017CA00098 9
self-serving affidavit that the difference in the level between the ramp and porch was not
visible is contradicted by her own testimony and own photographs.
{¶19} The trial court found Wasabi House was entitled to judgment as a matter of
law and granted Wasabi House’s motion for summary judgment.
{¶20} Appellant appeals the May 17, 2017 judgment entry of the Stark County
Court of Common Pleas and assigns the following as error:
{¶21} “I. THE TRIAL COURT ERRED IN GRANTING APPELLEE’S MOTION
FOR SUMMARY JUDGMENT BY FINDING THAT THE APPELLANT WAS INJURED BY
AN OPEN AND OBVIOUS HAZARD, WHERE THE TRIP HAZARD WAS HIDDEN FROM
VIEW BY A FLEXIBLE BLACK RUBBER MAT THAT DEPRESSED AS THE APPELLANT
WALKED OVER IT.
{¶22} “II. THE COURT ERRED IN GRANTING APPELLEE’S MOTION FOR
SUMMARY JUDGMENT BASED UPON THE “TWO INCH RULE” WHERE THE TRIP
HAZARD WAS HIDDEN FROM VIEW AND NOT SUBJECT TO OBSERVATION
BECAUSE THE HAZARD WAS COVERED WITH A FLEXIBLE BLACK RUBBER MAT
THAT DEPRESSED AS THE APPELLANT WALKED OVER IT.
{¶23} “III. THE COURT ERRED IN GRANTING APPELLEE’S MOTION FOR
SUMMARY JUDGMENT WHERE THE APPELLANT’S DIRECT, CIRCUMSTANTIAL
AND EXPERT TESTIMONY ESTABLISHED THAT THE TRIP POINT THAT CAUGHT
THE TOE OF THE APPELLANT’S LEFT FOOT AND CAUSED HER TO STUMBLE AND
FALL WHICH WAS NOT VISIBLE OR OBSERVABLE BUT WAS PRODUCED BY THE
PRESSURE OF THE APPELLANT’S LEFT FOOT DEPRESSING THE BLACK RUBBER
MAT THAT RESTED ON THE TILE PORCH AND THE END OF THE HANDICAP RAMP.
Stark County, Case No. 2017CA00098 10
{¶24} “IV. THE COURT ERRED IN GRANTING SUMMARY JUDGMENT WHERE
ALL DIRECT, CIRCUMSTANTIAL AND EXPERT TESTIMONY OFFERED BY
APPELLANT WAS THAT THE DISTANCE IN ELEVATION BETWEEN THE EDGE OF
THE TILE PORCH AND THE END OF THE WOODEN HANDICAP RAMP CREATED A
SUBSTANTIAL HAZARD BECAUSE THE VERTICAL DISTANCE WAS NOT
OBSERVABLE UNDERNEATH THE BLACK RUBBER MAT THE COVERED IT.
{¶25} “V. THE COURT ERRED IN GRANTING APPELLEE’S MOTION FOR
SUMMARY JUDGMENT WHERE THE APPELLANT HAS OFFERED DIRECT,
CIRCUMSTANTIAL AND EXPERT TESTIMONY THAT ESTABLISHED THAT THE
DEFECT AND HAZARD WHICH PROXIMATELY CAUSED THE APPELLANT TO
STUMBLE AND FALL WAS HIDDEN FROM OBSERVATION AND VIEW BENEATH A
FLEXIBLE BLACK RUBBER MAT.
{¶26} “VI. THE COURT ERRED IN HOLDING THAT “THE APPELLANT’S
STATEMENT THAT THE DIFFERENCE IN LEVEL BETWEEN THE END OF THE
WOODEN RAMP AND THE TILED PORCH WAS NOT VISIBLE IS FLATLY
CONTRADICTED BY HER OWN PHOTOGRAPHS” BECAUSE PHOTOS OF THE
RUBBER MAT IN PLACE DO NOT SHOW WHAT WAS UNDER THE MAT AND
WHETHER OR NOT CONCRETE OR OTHER RAMPING MATERIAL WAS ON THE
WOODEN END OF THE RAMP UNDER THE MAT, THAT WOULD HAVE ELIMINATED
THE VERTICAL TRIP HAZARD, SIMILAR TO THE CONCRETE SHOWN TO THE
RIGHT OF THE BLACK RUBBER MAT IN THE APPELLANT’S PHOTOGRAPH
EVIDENCE.”
Stark County, Case No. 2017CA00098 11
{¶27} While appellant lists six assignments of error, we find these assignments of
error deal with two issues: the open and obvious nature of the alleged defect and the
two-inch rule. Accordingly, we will review several of these assignments of error together.
Summary Judgment Standard
{¶28} 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.
{¶29} 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
Stark County, Case No. 2017CA00098 12
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
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).
{¶30} 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.
{¶31} 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., III., V.
{¶32} In her first, third, and fifth assignments of error, appellant contends the trial
court erred in granting summary judgment based upon the open and obvious doctrine.
Stark County, Case No. 2017CA00098 13
{¶33} The issue in this case is whether Wasabi House was negligent. In order to
establish a claim for negligence, a plaintiff must show: (1) a duty on the part of defendant
to protect the plaintiff from injury; (2) a breach of that duty; and (3) an injury proximately
resulting from the breach. Jeffers v. Olexo, 43 Ohio St.3d 140, 539 N.E.2d 614 (1989).
{¶34} There is no dispute between the parties that on October 17, 2014, appellant
was a business invitee. An invitee is 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. Carpenter v. Mount Vernon Gateway, Ltd., 5th Dist. Knox No.
13CA6, 2014-Ohio-465. The owner or occupier of the premises owes the invitee a duty
to exercise ordinary care to maintain its premises in a reasonably safe condition, such
that its invitees 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. Id. However, a premises owner is not an insurer of its
invitees’ safety against all forms of accident that may happen. Id. Invitees are expected
to take reasonable precautions to avoid dangers that are patent or obvious. Sidle v.
Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589 (1968).
Open & Obvious
{¶35} 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).
Stark County, Case No. 2017CA00098 14
{¶36} In Armstrong v. Best Buy Company, Inc., the Ohio Supreme Court found a
premises owner owes no duty to persons entering the premises regarding dangers that
are open and obvious. 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088. The
rationale of the open and obvious 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). Therefore,
when a danger is open and obvious, a premises owner owes no duty of care to individuals
lawfully on the premises. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-
2573, 788 N.E.2d 1088. When applicable, the open and obvious doctrine obviates the
duty to warn and acts as a complete bar to any negligence claim. Aycock v. Sandy Valley
Church of God, 5th Dist. Tuscarawas No. 2006AP090054, 2008-Ohio-105.
{¶37} The law uses an objective, not subjective, standard when determining
whether a danger is open and obvious. Freeman v. Value City Dept. Store, 5th Dist. Stark
No. 2010 CA 00034, 2010-Ohio-4634. The fact that a particular appellant himself or
herself is not aware of the hazard is not dispositive of the issue. Id. It is the objective,
reasonable person that must find the danger is not obvious or apparent. Id. The
determinative issue is whether the condition is observable. Aycock v. Sandy Valley
Church of God, 5th Dist. Tuscarawas No. 2006AP090054, 2008-Ohio-105.
{¶38} Appellant contends courts have ruled whether a condition is open and
obvious is a jury question that is not decided as a matter of law and cites cases in support
of her argument that the open and obvious doctrine is an extremely factual inquiry and
should not be decided via summary judgment. However, this Court has ruled that, in most
Stark County, Case No. 2017CA00098 15
situations, whether a danger is open and obvious presents a question of law. Id. Under
certain circumstances, disputed facts may exist regarding the openness and obviousness
of the danger. Id. However, where only one conclusion can be drawn from the
established facts, the issue of whether a risk was open and obvious is decided by the
court as a matter of law. Id. Further, the cases cited by appellant are distinguishable
from the instant case, as in these cases there was conflicting testimony either as to
whether the condition was obscured by a wall or conflicting evidence as to the visibility
on the stairway at the time of the fall. Hill v. Mullins, 2nd Dist. Montgomery No. 27127,
2017-Ohio-1302; Watson v. Bradley, 11th Dist. Trumbull No. 2016-T-0031, 2017-Ohio-
431.
{¶39} In this case, appellant testified she could see there was a ramp; could see
the condition of the ramp as she was walking; could see the ramp was going up to the
landing; could see the black mat on the ramp; could see the condition of the ramp; was
able to look down and see where she was putting her foot; saw nothing to make her think
there was any reason she shouldn’t step up; it was obvious it was a ramp; and it was
obvious there was a runner on the ramp. Appellant also testified the photographs taken
by her nephew shortly after the incident show the condition of the area on the day of her
fall. These photographs clearly show the lip at the transition from the end of the ramp to
the tile platform and also fully show the slight hump in the black mat. Thus, the slight
difference in height between the end of the ramp and the tiled platform was open and
obvious, and the nature of the condition was observable.
{¶40} We find this case analogous to cases finding no genuine issue of material
fact exists, particularly the case of Bauermeister v. Real Pit BBQ, LLC, 5th Dist. Delaware
Stark County, Case No. 2017CA00098 16
No. 14 CAE 04 024, 2014-Ohio-4501, in which the plaintiff fell exiting a restaurant. This
Court found the slope and riser deviation was open and recognizable, as observed in the
photographs provided. Id. See also Ryan v. Gaun, 5th Dist. Licking No. 2003CA00110,
2004-Ohio-4032 (rejecting appellant’s argument that the hazard presented by the steep
slope was hidden and latent and finding the hazard presented by the slope was open and
obvious, even though the exact degree of the slope was unknown and finding appellees’
failure to provide notice of the exact slope degree of the ramp does not render the ramp
a latent, hidden danger); Freeman v. Value City Dept. Store, 5th Dist. Stark No. 2010 CA
00034, 2010-Ohio-4634 (holding threshold was open and obvious because it was neither
hidden from view nor concealed as the plaintiff testified nothing obstructed her view and
she had a clear view of where she was going); Snyder v. Kings Sleep Shop, LLC, 6th
Dist. Williams No. WM-13-006, 2014-Ohio-1003 (holding danger posed by ramp in
doorway of store was open and obvious); Jackson v. Board of Pike Commissioners, 4th
Dist. Pike No. 10CA805, 2010-Ohio-4875 (holding danger associated with sidewalk and
handicap ramp was open and obvious because nothing about the danger is hidden or
concealed from view).
{¶41} Appellant next argues summary judgment is inappropriate due to the
statement in her affidavit that there was no visible hazard on the black rubber mat as she
walked on it.
{¶42} However, as we stated in Patterson v. Licking Twp., 5th Dist. Licking No.
17-CA-3, 2017-Ohio-1463, “a self-serving affidavit that is not corroborated by any
evidence is insufficient to establish the existence of an issue of material fact,” and “to
conclude otherwise would enable the nonmoving party to avoid summary judgment in
Stark County, Case No. 2017CA00098 17
every case.” See also Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47
(holding “an affidavit of a party opposing summary judgment that contradicts former
deposition testimony of that party may not, without sufficient explanation, create a
genuine issue of material fact to defeat a motion for summary judgment”). In her
deposition testimony, appellant stated she could see the condition of the ramp as she
was walking, could see the black mat on the ramp, was able to look down and see where
she was putting her foot, knew she had to step up, and that it was obvious there was a
runner on the ramp. Further, the photographs submitted by appellant and taken by her
nephew contradict appellant’s testimony, as the open and obvious nature of the exposed
lip at the right and left edges of the black runner and the hump visible from the black
rubber mat is fully shown. As in Patterson, appellant has not corroborated her affidavit
with any evidence or included in her affidavit any specific facts which establish the
existence of any issue of material fact.
{¶43} Appellant finally contends the trial court erred in applying the open and
obvious doctrine because Whitling opined as to how the hazard should have been fixed
by properly replacing the mortar built up on the west side of the ramp. However, as this
Court has previously stated, “the landowner’s duty is not to be determined by questioning
whether the condition could have been made perfect or foolproof. The issue is whether
the conditions that did exist were so open and obvious to any person exercising
reasonable care and watching where she was going.” Bauermeister v. Real Pit BBQ,
LLC, 5th Dist. Delaware No. 14 CAE 04 0024, 2014-Ohio-4501.
Stark County, Case No. 2017CA00098 18
Attendant Circumstances
{¶44} An exception to the open and obvious doctrine is the existence of attendant
circumstances. Aycock v. Sandy Valley Church of God, 5th Dist. Tuscarawas No.
2006AP090054, 2008-Ohio-105. These 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. 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.
{¶45} There is no precise definition of attendant circumstances. Mulcahy v. Best
Buy Stores, LP, 5th Dist. Delaware No. 13 CAE 06 0051, 2014-Ohio-1163. Attendant
circumstances are factors that contribute to a fall and are beyond the injured person’s
control. Id. The phrase refers to all circumstances surrounding the event, such as time
and place, the environment or background of the event, and the conditions normally
existing that would unreasonably increase the normal risk of a harmful result of the event.
Aycock v. Sandy Valley Church of God, 5th Dist. Tuscarawas No. 2006AP090054, 2008-
Ohio-105.
{¶46} Attendant circumstances do not include the individual’s activity at the
moment of the fall, unless the individual’s attention was diverted by an unusual
circumstance of the property owner’s making. Id., citing McGuire v. Sears, Roebuck &
Co., 118 Ohio App.3d 494, 693 N.E.2d 807 (1st Dist. 1996). Further, an individual’s
particular sensibilities do not play a role in determining whether attendant circumstances
Stark County, Case No. 2017CA00098 19
make the individual unable to appreciate the open and obvious nature of the danger.
Freeman v. Value City Dept. Store, 5th Dist. Stark No. 2010 CA 00034, 2010-Ohio-4634.
Rather, the analysis of attendant circumstances uses an objective test. Mulcahy v. Best
Buy Stores, LP, 5th Dist. Delaware No. 13 CAE 06 0051, 2014-Ohio-1163.
{¶47} Appellant alleges there are two attendant circumstances that create a
genuine issue of material fact as to whether the hazard is open and obvious. Appellant
first alleges her averment in her affidavit that “her attention was drawn to her family and
other persons on the porch and the activity entering the restaurant through the door” was
sufficient evidence of attendant circumstances to create a genuine issue of material fact.
{¶48} However, as this Court held in Kraft v. Johnny Biggs Mansfield, LLC, 5th
Dist. Richland No. 2012 CA 0068, 2012-Ohio-5502, “normal traffic” of people coming in
and out of a restaurant is not a circumstance so significant or unusual as to rise to the
level of attendant circumstances. Further, in Rayburn v. Delaware Co. Agricultural
Society, 5th Dist. Delaware No. 15 CAE 02 0016, 2015-Ohio-1903, we held there was no
evidence to establish the numerous people in the area distracted plaintiff to the point of
reducing the degree of care an ordinary person would exercise. See also Gurcarkowski
v. McPeek Funeral Home, 5th Dist. Licking No. CA-3479, 1990 WL 15752 (finding no
attendant circumstances on a standard pedestrian sidewalk); Freeman v. Value City Dept.
Store, 5th Dist. Stark No. 2010 CA 00034, 2010-Ohio-4634 (finding no attendant
circumstance when plaintiff testified nothing was distracting her at the time of the
incident); Jackson v. Board of Pike Commissioners, 4th Dist. Pike No. 10CA805, 2010-
Ohio-4875 (finding moving to the side to let someone pass on a handicap ramp is not an
attendant circumstance); Frano v. Red Robin Int’l, Inc., 181 Ohio App.3d 13, 2009-Ohio-
Stark County, Case No. 2017CA00098 20
685, 907 N.E.2d 796 (11th Dist.) (finding no attendant circumstances when the record did
not contain evidence the plaintiff was distracted by the atmosphere of the restaurant).
{¶49} In this case, appellant testified that, at the time of the incident, it was still
light out, there was no precipitation, she had no visibility problems, she could see where
she was walking, and nothing obstructed her view of the ramp or the threshold.
Additionally, appellant specifically stated there was “nothing to distract her” as she was
walking towards the door and she was capable of observing both the ramp and the
threshold in her field of vision. Thus, there is no evidence her family or other people
entering the restaurant distracted appellant to the point of reducing the degree of care an
ordinary person would exercise.
{¶50} Appellant also argues the black mat was an attendant circumstance
because she was distracted by the mat. However, appellant testified she saw the ramp,
saw the black mat on the ramp, understood she needed to step up to the tiled foyer, and
nothing distracted her as she was walking towards the door. When asked where her left
toe hit, appellant stated, “I’m going to say I’m not positive.” Further, when asked what
was different about moving her left foot that was different from her right foot, appellant
testified, “I don’t know.” Additionally, there is evidence that the mat actually lessened the
vertical distance at the transition between the wooden ramp to the tiled floor. Thus, the
existence of the black mat is not a circumstance that significantly enhanced the danger
of the defect or hazard and contributed to the injury.
{¶51} We find that reasonable minds could only conclude the threshold was open
and obvious. We further find no evidence of any attendant circumstances which
enhanced the danger to appellant and contributed to her fall. We therefore find Wasabi
Stark County, Case No. 2017CA00098 21
House owed no duty to appellant and the trial court did not err in granting summary
judgment to Wasabi House. Appellant’s first, third, and fifth assignments of error are
overruled.
II., IV, VI.
{¶52} In her second, fourth, and sixth assignments of error, appellant argues the
trial court erred in finding the “two inch rule” or the “trivial defect” rule bars recovery in this
case. Appellant contends the difference is substantial and the two-inch rule is not a bright-
line test, but depends on the circumstances. Further, that the two-inch rule does not apply
because the trip point beneath the mat could not be seen and the distance between
appellant’s right foot on the ramp and the step up to the foyer was greater than two inches.
Appellant also contends there were attendant circumstances to render the defect
substantial.
{¶53} 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, 160 Ohio St. 370, 116 N.E.2d 708 (1953), the Ohio Supreme Court
held that a height variation 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.
{¶54} 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
Stark County, Case No. 2017CA00098 22
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.
{¶55} Appellant contends the two-inch rule is not applicable in this case because
the hazard at issue is not a vertical distance of less than two inches. However, this
argument is contradicted by her expert’s testimony. Whitling stated that, with the mat
removed, the vertical height difference at the transition from the wooden ramp to the tile
floor varied from 7/8 inch to 1 ¼ inch at the highest point. Further, with the mat on the
ramp, Whitling approximated the height difference to be about one inch. Additionally, in
the photographs provided by appellant, taken by her nephew shortly after the incident,
the vertical height difference is shown to be less than two inches.
{¶56} As discussed in detail above, appellant also argues attendant
circumstances elevate the defect to an unreasonably dangerous condition. Appellant
contends this case is analogous to Cash, Hill, and Neura, in which courts found attendant
circumstances provided a genuine issue of material fact as to the two-inch rule. However,
we find these cases distinguishable from the instant case. In Cash, 66 Ohio St.2d 310,
421 N.E.2d 1275 (1981), the Ohio Supreme Court found where a depression is twelve to
fourteen inches wide, a pedestrian who approaches an intersection in a major city had
his attention diverted by traffic signal lights, surrounding vehicular traffic, and other
pedestrian traffic and these conditions would likely tend to increase the dangers of such
a defect in this location. The attendant circumstances present in Cash are not present in
this case. In this case, appellant testified it was still light out, there was no precipitation,
Stark County, Case No. 2017CA00098 23
she had no visibility problems, she could see where she was walking, nothing obstructed
her view of the ramp or threshold, she successfully negotiated the step up with her right
foot, and there was “nothing to distract her” as she was walking towards the door. See
Gurcarkowski v. McPeek Funeral Home, 5th Dist. Licking No. CA-3479, 1990 WL 15752.
{¶57} Neura v. Goodwill Industries, 9th Dist. Medina No. 11CA0052-M, 2012-
Ohio-2351 is distinguishable from the instant case because the plaintiff in that case
testified her full shopping cart obstructed her view of the ground. In this case, appellant
testified nothing obstructed her view of either the ramp or threshold. Hill v. Mullins, 2nd
Dist. Montgomery No. 27127, 2017-Ohio-1302 is also distinguishable from the instant
case, as the court in that case did not find attendant circumstances to be a person talking
to her, but found a genuine issue of material fact as to attendant circumstances because
plaintiff testified about a wall obscuring her vantage point of the hazard. In fact, the court
noted, “walking behind someone while that person is conversing and/or gesturing is not
an unusual circumstance.” Id. In this case, appellant testified she could look down and
see where she was putting her foot, could see the ramp, could see the runner, and the
ramp and threshold were capable of observation within her field of vision.
{¶58} Accordingly, we find reasonable minds could only conclude the defect was
trivial and not rendered a substantial one because of any attendant circumstances. See
Callentine v. Mill Investments, 5th Dist. Tuscarawas No. 2017 AP 06 0014, 2017-Ohio-
8634. We find 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.
Appellant’s second, fourth, and sixth assignments of error are overruled.
{¶59} Based on the foregoing, appellant’s assignments of error are overruled.
Stark County, Case No. 2017CA00098 24
{¶60} The May 17, 2017 judgment entry of the Stark County Court of Common
Pleas is affirmed.
By Gwin, P.J., and
Wise, Earle, J., concur;
Hoffman, J., dissents
Stark County, Case No. 2017CA00098 25
Hoffman, J., dissenting
{¶61} I respectfully dissent from the majority opinion.
{¶62} While I agree there were no “attendant circumstances” in this case to justify
an exception to the open-and-obvious rule, I find reasonable minds, when considering the
evidence in the light most favorable to Appellant as required by Civ.R. 56, could differ as
to whether the alleged danger was, in fact, open and obvious.
{¶63} Due to the “give” [flexibility] of the mat the top of the ramp and the fact the
mat covered the offset between the top of the ramp and the tile floor, a reasonable trier-
of-fact could find a lip was created by stepping on the mat near the top of the ramp. Given
the fact a person’s normal gate is to put one foot ahead of the other when walking, it is
not necessarily inconsistent Appellant’s right foot may have safely stepped over the top
of the ramp while Appellant’s left foot caught on the lip created by the “give” of the mat
where the gap existed. I find sufficient evidence exists to create a genuine dispute as to
whether the alleged hazard was open and obvious.
{¶64} I further disagree with the trial court’s and majority’s determination no
liability exists because the “two-inch rule” bars recovery, finding the height differential was
“trivial.” While the height differential may have been trivial, all the cases applying the two-
inch rule involve situations where the height differential was observable.
{¶65} Because the black mat covered the gap between the top of the ramp and
the tile floor, the height differential caused by the give in the mat was not observable. As
such, I find the two-inch rule inapplicable when the gap is not open to observation but
rather covered or obscured.
[Cite as McCoy v. Wasabi House, L.L.C., 2018-Ohio-182.]