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George v. Kroger Co.

Court of Appeals of Ohio, Second District

July 3, 2013

BARBARA GEORGE, et al. Plaintiff-Appellant
THE KROGER COMPANY, et al. Defendant-Appellee

(Civil Appeal from (Common Pleas Court) Trial Court Case No. 2011-CV-6064

MARY E. LENTZ, Atty. Reg. #0043985, and MICAH M. SIEGAL, Atty. Reg. #0085647, Gottschlich & Portune, LLP, Attorneys for Plaintiff-Appellant

RAY C. FREUDIGER, Atty. Reg. #0055564, Freund, Freeze & Arnold, Fifth Third Center, Attorney for Defendant-Appellee



{¶ 1} Barbara George appeals from the trial court's entry of summary judgment in favor of appellee Kroger Company on a negligence complaint stemming from her trip and fall in a Kroger grocery store.[1]

{¶ 2} George's sole assignment of error challenges the trial court's finding that a flat-bed dolly, the alleged cause of her fall, was an open and obvious hazard.

{¶ 3} The record reflects that George took a shopping cart upon entering the grocery store and went to the produce department. As she proceeded down an aisle, she saw permanent vegetable displays on shelves on the right and left-hand sides of the aisle. George also saw a temporary display piled high with watermelons to her left. She parked her cart near the watermelons and stepped to her left toward the lettuce, which she had seen in the permanent display on the left-hand side of the aisle. As she did so, George tripped and fell over an empty flat-bed dolly on wheels. She estimated that the handleless dolly was approximately two feet long by two feet wide and stood a three or four inches off of the ground. The dolly was up against the temporary watermelon display.

{¶ 4} George subsequently sued Kroger for negligence as a result of her fall. Kroger moved for summary judgment, arguing that the dolly was an open and obvious hazard. The trial court agreed. Finding no genuine issue of material fact, it sustained Kroger's motion. The trial court reasoned that the dolly was an open and obvious hazard as a matter of law, that no attendant circumstances negated the open and obvious nature of the hazard, and that an active-negligence exception to the open-and-obvious doctrine did not apply.

{¶ 5} We review a grant of summary judgment de novo, which means that "we apply the standards used by the trial court." Brinkman v. Doughty, 140 Ohio App.3d 494, 497, 748 N.E.2d 116 (2d Dist.2000). Summary judgment is appropriate when a trial court correctly finds "(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) 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, who is entitled to have the evidence construed most strongly in his favor." Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).

{¶ 6} On appeal, George contends the trial court erred in entering summary judgment against her. She advances four arguments in support. First, she challenges the trial court's finding that the dolly was an open and obvious hazard as a matter of law. Second, she claims the trial court erred in ignoring several attendant circumstances. Third, she asserts that placement of the dolly in her path constituted "active negligence" that obviated the open-and-obvious doctrine. Fourth, she argues that Kroger's destruction of a videotape of the incident is itself an "issue of material fact that should have precluded summary judgment[.]"

{¶ 7} To prevail on a negligence claim, "one seeking recovery must show the existence of a duty, the breach of the duty, and injury resulting proximately therefrom." Strother v. Hutchinson, 67 Ohio St.2d 282, 285, 423 N.E.2d 467 (1981). The status of a person who enters the land of another defines the scope of the duty owed to the entrant. Gladon v. Greater Cleveland Reg. Transit Auth., 75 Ohio St.3d 312, 315, 1996-Ohio-137, 662 N.E.2d 287.

{¶ 8} Here George was a business invitee on Kroger's property. As it pertains to business invitees, an owner's duty is to keep the premises in reasonably safe condition and to warn of known dangers. James v. Cincinnati, 1st Dist. Hamilton No. C-070367, 2008-Ohio-2708, ¶ 24, citing Eicher v. U.S. Steel Corp., 32 Ohio St.3d 248, 512 N.E.2d 1165 (1987). Liability arises when an owner has "superior knowledge of the particular danger which caused the injury" as an "invitee may not reasonably be expected to protect himself from a risk he cannot fully appreciate." Uhl v. Thomas, 12th Dist. Butler No. CA2008-06-131, 2009-Ohio-196, ¶13, citing LaCourse v. Fleitz, 28 Ohio St.3d 209, 210, 503 N.E.2d 159 (1986).

{¶ 9} When a danger is open and obvious, a property 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, ¶14. "To be open and obvious, a hazard must not be concealed and must be discoverable by ordinary inspection." (Citation omitted) Johnson v. Southview Hosp., 2d Dist. Montgomery No. 25049, 2012-Ohio-4974, ¶9. The issue is not whether an individual observes a condition, but whether it is capable of being observed. Larrick v. J.B.T., Ltd., 2d Dist. Montgomery No. 21692, 2007-Ohio-1509, ¶11.

{¶ 10} George argues on appeal that she lacked any advance opportunity to perceive the dolly and avoid the danger. Specifically, she asserts (1) that Kroger employee Derrick Lehman placed the dolly against the watermelon display seconds before she encountered it and (2) that the watermelon display concealed the dolly from view so that she lacked the ability to avoid it. Under these circumstances, she contends the trial court ...

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