[Cite as Kohler v. Camp Runinmuck, 2019-Ohio-5276.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
OTTAWA COUNTY
Denise Kohler Court of Appeals No. OT-19-016
Appellant Trial Court No. 17CV186
v.
Camp Runinmuck, et al. DECISION AND JUDGMENT
Appellees Decided: December 20, 2019
*****
Richard L. Demsey, Justin D. Gould, Paul W. Flowers, and
Louis E. Grube, for appellant.
Brian A. Newberg, for appellees.
*****
ZMUDA, J.
I. Introduction
{¶ 1} Appellant, Denise Kohler,1 appeals the judgment of the Ottawa County
Court of Common Pleas, which granted summary judgment to appellees, Camp
1
Appellant was married after she filed this action, resulting in a change of her name to
Denise Trosin.
Runinmuck, The New Generation, Inc., Camp Runinmuck Campers Association, and
Camp Runinmuck Lodge, on appellant’s premises liability claim. Because we find that
the trial court properly concluded that appellant’s claim was precluded under the open
and obvious doctrine, we affirm.
A. Facts and Procedural Background
{¶ 2} The incident that gave rise to this premises liability action took place on
June 6, 2015. On that date, appellant visited a restaurant at Camp Runinmuck in
Marblehead, Ohio. Appellant was accompanied by her friend, Mario Bandiera. The two
arrived at approximately 6 p.m. Upon arrival, Mario dropped appellant at the entrance
and proceeded to park his vehicle. The two ate dinner together, and departed
approximately three to three and one-half hours later. Appellant consumed one glass of
wine during dinner.
{¶ 3} After exiting the restaurant, appellant and Mario proceeded to Mario’s
vehicle. Wanting to use the restroom before leaving, appellant returned to the restaurant.
According to appellant it was “fully dark” outside by the time she left the restaurant.
Appellant’s mobile phone was equipped with a flashlight function with which appellant
was familiar, but appellant indicated that she did not feel the need to use it on the night of
the incident because the parking lot was adequately lit. Appellant indicated during her
deposition that she was not concerned with the lighting in and around the area where the
cart was located. Additionally, appellant responded in the affirmative when asked
whether she believed that the area where the cart was located was “sufficiently lit for
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[her] to be able to safely proceed.” Later on, appellant stated that “[t]here was no
problem” with respect to the lighting conditions in the area where the cart was located,
but she stated that the exterior light was shining into her eyes as she walked toward the
restaurant.
{¶ 4} On her way to Mario’s vehicle, appellant passed a large stationary cart that
was located in the parking lot outside of the restaurant. The cart was approximately five
feet long and four feet wide. The cart was carrying an orange and black bin that took up
much of the surface area of the cart. However, the edges of the cart protruded out from
the bin on each side. The cart surface was gray with a red rim along the edge on every
side. Although she acknowledged walking past the cart, appellant stated that she did not
see the cart, but she admitted that would have been able to see the cart had she looked in
its direction.
{¶ 5} On her way back to the restaurant, appellant struck her left shin on the
corner of the cart, causing her to fall. Appellant testified that she was looking toward the
door at the time of her fall. Appellant acknowledged that there were no pedestrians or
automobile traffic in the area at the time, and that her attention was not diverted prior to
the fall.
{¶ 6} After striking the cart with her shin, appellant reached out her left arm in
order to break her fall. As a result of her efforts, appellant suffered a fracture to her left
elbow, causing severe pain and leading to the tearing of her cartilage in that joint.
Appellant’s injuries ultimately forced her to undergo outpatient surgery and physical
therapy.
3.
{¶ 7} Almost two years after her fall at Camp Runinmuck, appellant filed a
complaint with the trial court on June 5, 2017, in which she asserted a premises liability
claim against appellees, Camp Runinmuck, The New Generation, Inc., Camp Runinmuck
Campers Association, and Camp Runinmuck Lodge. On June 30, 2017, appellees filed
their answer, in which they generally denied the allegations raised in appellant’s
complaint and asserted several affirmative defenses. Of particular relevance to this
appeal, appellees asserted that the condition complained of in appellant’s complaint (i.e.
the cart) was open and obvious.
{¶ 8} Following discovery, appellees filed their motion for summary judgment on
October 3, 2018. In their motion, appellees argued that they had no duty to appellant
with respect to the cart on which appellant struck her shin, because the cart was an open
and obvious hazard. Further, appellees urged that there were no attendant circumstances
that would exclude the application of the open and obvious doctrine to this case.
{¶ 9} As to appellant’s attendant circumstances argument, appellees denied that
the cart and the pavement blended together, noting that the trim on the cart and the large
brown and orange bin on top of the cart contrasted with the color of the underlying
pavement. Additionally, appellees insisted that the light that was allegedly shining in
appellant’s eye on the night of the fall did not constitute an attendant circumstance that
would preclude the application of the open and obvious doctrine.
{¶ 10} On December 14, 2018, appellant filed her brief in opposition to appellees’
motion for summary judgment. In her brief, appellant contended that the cart was not an
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open and obvious hazard. In support, appellant pointed to appellees’ customary practice
of placing large orange cones around the cart, a practice that appellant argued was
demonstrative of appellees’ recognition that the cart was not inherently open and
obvious. Alternatively, appellant argued that there were attendant circumstances in play
in this case that would negate the application of the open and obvious doctrine.
Specifically, appellant identified two attendant circumstances: (1) the color of the cart
blended in with the surrounding pavement; and (2) a light shining in appellant’s eyes as
she walked toward the restaurant.
{¶ 11} In their December 31, 2018 reply to appellant’s brief in opposition,
appellees stated that the cart was large (five feet long and four feet wide), it was “covered
in orange or red trim,” and it was situated in plain view. Therefore, appellees argued that
the cart was open and obvious.
{¶ 12} On January 11, 2019, appellant filed a sur-reply in which she reasserted her
claim that the cart was not open and obvious and that the presence of attendant
circumstances (blending with the pavement and a light shining in her eyes) barred
appellees’ reliance on the open and obvious doctrine.
{¶ 13} Upon consideration of the foregoing arguments, the trial court issued its
decision on March 27, 2019. In the decision, the trial court found that appellant “testified
that she was able to see the cart and bin had she looked, there was adequate lighting and
there was nothing distracting her attention from the cart/bin.” Due to this testimony, the
trial court determined that appellees were entitled to summary judgment on appellant’s
premises liability claim. Thereafter, appellant entered a timely notice of appeal.
5.
B. Assignments of Error
{¶ 14} On appeal, appellant the following assignment of error:
The trial judge erred, as a matter of law, by granting summary
judgment upon plaintiff-appellant’s premises liability claim.
II. Analysis
{¶ 15} In her sole assignment of error, appellant argues that the trial court erred in
granting summary judgment in favor of appellees on her premises liability claim.
{¶ 16} Premises liability is a form of negligence, which generally requires the
plaintiff to demonstrate that the defendant owes a duty to him or her the breach of which
proximately resulted in the plaintiff’s injury. Mussivand v. David, 45 Ohio St.3d 314,
318, 544 N.E.2d 265 (1989). The duty that an owner or occupier of premises owes to one
who is injured on those premises is governed by the relationship between the parties.
Light v. Ohio University, 28 Ohio St.3d 66, 67, 502 N.E.2d 611 (1986). Persons who
come onto premises by invitation, express or implied, for purposes beneficial to the
owner or occupier are considered business invitees. Id. at 68. In this case, the parties
agree that appellant is a business invitee.
{¶ 17} The duty of a premises owner to a business invitee is one of ordinary care
in maintaining the premises in a reasonably safe condition and to warn an invitee of latent
or hidden dangers. Brown v. Helzberg Diamonds, 168 Ohio App.3d 438, 2006-Ohio-
4297, 860 N.E.2d 803, ¶ 13 (6th Dist.); Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio
St.3d 203, 480 N.E.2d 474 (1985). However, the owner of premises is not an insurer of
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the customer’s safety and is under no duty to protect business invitees from dangers that
are “known to such invitee or are so obvious and apparent to such invitee that he may
reasonably be expected to discover them and protect himself against them.” Id. at 203-
204, quoting Sidle v. Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589 (1968), paragraph one
of the syllabus.
{¶ 18} Here, the trial court found that appellees owed no duty to appellant with
respect to the cart, because the cart was an open and obvious hazard. The open and
obvious doctrine provides that owners do not owe a duty to persons entering their
premises regarding dangers that are open and obvious. Armstrong v. Best Buy Co., Inc.,
99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 14, citing Sidle at paragraph one
of the syllabus. The rationale underlying this doctrine is “that the open and obvious
nature of the hazard itself serves a warning. Thus, the owner or occupier may reasonably
expect that persons entering the premises will discover those dangers and take
appropriate measures to protect themselves.” Simmers v. Bentley Constr. Co., 64 Ohio
St.3d 642, 644, 597 N.E.2d 504 (1992).
{¶ 19} Contrary to the findings of the trial court, appellant contends that the cart
on which she struck her left shin was not an open and obvious hazard. In her brief,
appellant argues that “a jury could easily conclude that a reasonable person acting with
ordinary care under the circumstances would not have discovered the protruding edge of
the recycling cart before tripping over it.” According to appellant, it was dark at the time
of the incident and the building cast a shadow over the area where the cart was located,
and the gray platform of the cart and its red edge blended in with the pavement below.
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{¶ 20} In response, appellees assert that the cart was observable and, as such, was
an open and obvious hazard. In support of their argument, appellees note that the cart
was five feet long and four feet wide, and contained a large bin atop the cart that was
orange and easily observable. Appellees cite numerous cases involving hazards that were
deemed to be open and obvious despite being smaller than the cart and bin in this case.
{¶ 21} While not dispositive in this case, the size of the cart is indeed a factor in
assessing whether the cart was open and obvious. Ellington v. JCTH Holdings, Inc., 7th
Dist. Mahoning No. 14 MA 64, 2015-Ohio-480, ¶ 29. According to the pictures
submitted as part of the record in this case, the cart is positioned in the open lot in front of
the restaurant, and is not hidden or concealed in any manner. Given the cart’s size and
location, the open and obvious doctrine would unquestionably apply in this case if the
incident would have occurred during the daytime.
{¶ 22} Therefore, the only question is whether the lack of daylight that existed at
the time of the incident renders the open and obvious doctrine inapplicable. On the
darkness issue, courts have held that “darkness is an open and obvious condition and
under Ohio law, one may not disregard darkness.” Kirksey v. Summit Cty. Parking
Garage, 9th Dist. Summit No. Civ.A. 22755, 2005-Ohio-6742, ¶ 12, citing Jeswald v.
Hutt, 15 Ohio St.2d 224, 227, 239 N.E.2d 37 (1968). Therefore, the lack of lighting does
not, by itself, alter the cart’s status as open and obvious. Moreover, appellant
acknowledged during her deposition that the area in front of the restaurant was
sufficiently lit, such that she felt no need to use the flashlight on her phone to illuminate
the path ahead of her.
8.
{¶ 23} Appellant claims that the cart on which the bin rested had a gray surface
that blended with the pavement below. Concerning appellant’s blending argument, we
have previously held that “[w]hen a surface and the object on which a person falls are the
same color, a genuine issue of material fact exists as to whether the object is open and
obvious.” Lovejoy v. Sears, Roebuck & Co., 6th Dist. Lucas No. L-98-1025, 1998 WL
351876, * 4 (June 19, 1998). Further, in Demock v. D.C. Entertainment & Catering, Inc.,
6th Dist. Wood No. WD-03-087, 2004-Ohio-2778, we found that issues of fact existed to
preclude an open and obvious finding as a matter law where the plaintiff fell in an unlit
interior stairwell that was poorly designed and shrouded in darkness such that the
plaintiff could not differentiate the floor from the steps.
{¶ 24} Unlike the facts in Lovejoy and Demock, the record in this case
demonstrates that the trim around the edge of the cart was red, and therefore the edge of
the cart contrasted with the gray pavement. In his deposition, Mario affirmed that the
lighting was sufficient to permit him to ascertain the color of the bin and distinguish
between colors. Moreover, appellant acknowledged that the area where the cart was
located was not so dimly lit that she could not observe the cart. Indeed, appellant
acknowledged during her deposition that she did, in fact, observe the bin, but failed to
take note of the protrusion of the cart underneath the bin. “The bench mark for the courts
is not whether the person saw the object or danger, but whether the object or danger was
observable.” Haymond v. BP Am., 8th Dist. Cuyahoga No. 86733, 2006-Ohio-2732, ¶
16. On these facts, we find that the cart was observable and was therefore an open and
obvious hazard.
9.
{¶ 25} Alternatively, appellant insists that there were attendant circumstances
present at the time of her fall that would preclude the application of the open and obvious
doctrine. Appellant claims that the light that was shining off the building was distracting
her because it was shining into her eyes.
An attendant circumstance is a factor that contributes to the fall and
is beyond the injured person’s control. 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. An “attendant circumstance” has also been defined to
include any distraction that would come to the attention of a pedestrian in
the same circumstances and reduce the degree of care an ordinary person
would exercise at the time. (Citations omitted.)
Jackson v. Pike Cty. Bd. of Commrs., 4th Dist. Pike No. 0CA805, 2010-Ohio-
4875, ¶ 21.
{¶ 26} In her deposition testimony, appellant testified that she would have seen the
cart and bin had she looked. Appellant also acknowledged that there were no pedestrians
or automobile traffic in the area at the time, and that her attention was not diverted prior
to the fall. Having acknowledged that she was not distracted at the time of the incident,
we find no merit to appellant’s reliance upon the claim that the outdoor lighting
constituted an attendant circumstance merely because it was allegedly shining into her
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eyes. Appellant acknowledged that she observed the bin that was resting on the cart
notwithstanding the lighting conditions. Having observed the bin, it is clear the light
shining into appellant’s eyes does not constitute an attendant circumstance which
prevented her from being able to see the cart underneath the bin.
{¶ 27} In sum, we find that the record supports the trial court’s determination that
the cart upon which appellant struck her shin was open and obvious. Further, the record
contradicts appellant’s assertion that she was distracted by attendant circumstances such
that the open and obvious nature of the cart should be ignored.
{¶ 28} While parties may have a theoretical argument over the objective question
as to whether a hazard is open and obvious, here we must apply our analysis within the
constraints of appellant’s testimony as to what she did or did not do, what she saw or did
not see, and what she was able to see had she looked as opposed to what she was not able
to see. In doing so, we find that the trial court did not err when it granted appellees’
motion for summary judgment.
{¶ 29} Accordingly, appellant’s sole assignment of error is not well-taken.
III. Conclusion
{¶ 30} In light of the foregoing, the judgment of the Ottawa County Court of
Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgment affirmed.
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OT-19-016
Kohler v. Camp Runinmuck
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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