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James Sexton, et al v. Certified Oil Company

February 7, 2013

JAMES SEXTON, ET AL., PLAINTIFFS-APPELLANTS,
v.
CERTIFIED OIL COMPANY, DEFENDANT-APPELLEE.



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

Cite as Sexton v. Certified Oil Co.,

DECISION AND JUDGMENT : ENTRY

{¶1} James and Sheila Sexton appeal the judgment of the Ross

County Court of Common Pleas, granting summary judgment to DefendantAppellee Certified Oil Company. Having reviewed the record and the pertinent law, we affirm.

FACTS

{¶2} On January 7, 2009, Appellant James Sexton fell on the premises of the Certified Oil gas station on Bridge Street in Chillicothe, Ohio. He injured his left knee and subsequently incurred substantial medical bills.

{¶3} Appellant testified that on the accident date, he arrived at the gas station between 12:30 and 1:00 p.m. He exited his vehicle, pumped gas, and walked between two sets of pumps. When he walked between the pumps, he fell. A woman helped him up. He went into the station to report his fall. On his way out of the station, he noticed a section of concrete was raised at the place where he tripped. He did not measure the raised concrete, but testified it appeared to be 1 ¾ to 2 inches high. Appellant took photographs of the area where he fell, and he testified the photographs reflected the conditions present on the day of his fall. Specifically, he testified there had been a shadow cast on the area where he fell.

{¶4} Appellant further testified he had been to that particular Certified station on approximately three prior occasions. On the day of the incident, prior to his fall, Appellant testified he never looked at the ground, nor did he look to see what caused him to fall afterwards. Appellant acknowledged there were no obstructions or other objects which would block his view of the concrete.

{¶5} Appellant and his wife, Sheila Sexton, filed suit against

Defendant Certified Oil Company on December 10, 2010. Appellant alleged negligent maintenance of the gas station premises. His wife asserted a claim for loss of consortium. Defendant-Appellee filed a timely answer. On May 18, 2011, Defendant-Appellee filed a motion for summary judgment arguing that the condition of the concrete in the area where Appellant fell constituted an "open and obvious" condition. Appellant filed a memorandum contra,

responding that the shadow over the raised concrete created an "attendant circumstance" and thus, a genuine issue of material fact precluded summary judgment. Appellee filed a reply brief. On October 19, 2011, the trial court entered its decision in favor of Defendant-Appellee. The court concluded that the "raised concrete was an open and obvious danger, a minor defect not made unreasonably dangerous due to any attendant circumstances." This appeal ensued.

ASSIGNMENT OF ERROR

I. THE COMMON PLEAS COURT ERRED BY ENTERING

SUMMARY JUDGMENT IN FAVOR OF DEFENDANT-

APPELLEE CERTIFIED OIL COMPANY ...


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