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Sarah Goblirsch, et al. v. El Camino Real Sky

October 21, 2011

SARAH GOBLIRSCH, ET AL.
APPELLANTS
v.
EL CAMINO REAL SKY, LTD., ET AL.
APPELLEES



Trial Court No. CI0200907068

The opinion of the court was delivered by: Osowik, P.J.

Cite as Goblirsch v. El Camino Real Sky, Ltd.,

DECISION AND JUDGMENT

{¶1} This is an appeal from a judgment in the Lucas County Court of Commons Pleas, which dismissed appellants' personal injury action against appellees, El Camino Real Sky, Ltd. and El Camino Properties, LLC, and granted summary judgment to appellees in this premises liability slip and fall matter stemming from an incident in a restaurant parking lot in Oregon, Ohio, occurring on a rainy day. For the reasons set forth more fully below, this court affirms the judgment of the trial court.

{¶2} On September 22, 2009, appellants filed a personal injury lawsuit against appellees arising from the slip and fall incident at appellees' restaurant. Appellants' complaint was amended on December 7, 2009, to include damages based on spoliation of evidence.

{¶3} On September 3, 2010, appellees filed a motion for summary judgment. On January 13, 2011, the motion was granted and appellants' amended complaint was dismissed. On February 15, 2011, notice of appeal was filed.

{¶4} From that judgment, counsel for appellants sets forth the following two assignments of error:

{¶5} "1. THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BECAUSE REASONABLE MINDS COULD DIFFER RELATIVE TO THE ISSUE OF WHETHER THE HAZARD IN THIS CASE, A SMOOTH, SLICK CONCRETE SLAB AMONGST OTHER LESSSMOOTH CONCRETE SLABS, WAS OR SHOULD HAVE BEEN OBVIOUS TO AN 11 YEAR OLD SUCH AS SARAH GOBLIRSCH.

{¶6} "2. THE TRIAL COURT ERRED WHEN IT RULED THAT THE APPELLANTS' SPOLIATION CLAIM WAS WITHOUT MERIT BECAUSE THE HAZARD WAS OPEN AND OBVIOUS - WHEN ONE ISSUE HAS NOTHING TO DO WITH THE OTHER."

{¶7} The following undisputed facts are relevant to this appeal. On the morning of August 8, 2009, Sarah Goblirsch, an 11-year old female, arrived with her parents Linda and Jeff Goblirsch at El Camino Real Sky restaurant in Oregon, Ohio. It was a dreary, rainy day.

{¶8} They got out of the vehicle and proceeded towards the restaurant from the parking lot. Sarah followed her mother through the rainy conditions and approached the restaurant by way of a concrete landing at the entrance. In the context of these rainy conditions, she slipped and fell backwards on concrete prior to entering the building, landing on her right arm. After the slip and fall, Sarah's father and the rest of the group continued into the restaurant to eat their meal while she was taken to the hospital by her mother to be treated. Medical service providers determined that she had broken her right arm and treated same.

{¶9} When reviewing a trial court's summary judgment decision, the appellate court conducts a de novo review. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. Summary judgment will be granted when there are no genuine issues of material fact, and when construing the evidence most strongly in favor of the nonmoving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64.

{¶10} In the first assignment of error, appellants contend that reasonable minds could differ relative to whether the concrete entry area on the outside of the restaurant constituted an open and obvious danger during wet and rainy conditions. Appellants maintain that because the concrete slab was slippery when wet, Sarah should have been warned. We do not concur.

{ΒΆ11} As the Supreme Court of Ohio has established, a property owner typically owes its business invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition and has a duty to warn its invitees of latent or hidden dangers. Armstrong v. Best Buy Company, Inc., 99 Ohio St.3d 79, 80. However, the open-and- obvious doctrine obviates the duty to warn and, when applicable, operates as a complete bar to liability rooted in negligence claims. Id. In addition, a business owner is not an insurer of a customer's safety ...


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