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Hill v. Mullins

Court of Appeals of Ohio, Second District, Montgomery

April 7, 2017

ANNE HILL Plaintiff-Appellant
v.
PATRICIA MULLINS, et al. Defendants-Appellees

         Civil Appeal from Common Pleas Court T.C. NO. 15CV861

          ANITA WASHINGTON STEPHEN D. BEHNKE ROBERT L. GRESHAM Attorneys for Plaintiff-Appellant

          CHRISTOPHER W. CARRIGG Attorney for Defendants-Appellees

          OPINION

          FROELICH, J.

         {¶ 1} Anne Hill appeals from a judgment of the Montgomery County Court of Common Pleas, which entered summary judgment in favor of Patricia Mullins and her husband on Hill's complaint for personal injuries.

         {¶ 2} For the following reasons, the judgment of the trial court will be reversed, and the matter will be remanded for further proceedings.

         I. Facts and Procedural History

         {¶ 3} The Mullinses bought a house in Miamisburg in January 2014, which they then "gutted" and renovated over a period of many months; they did not immediately move into the home. The Mullinses did much of the work on the house themselves or with the help of family and friends. One of the steps they had taken in January or February 2014 was to remove two walls and a doorway which had enclosed the stairs to the basement; a third wall, which ran alongside the opening to the stairs, was left in place. The Mullinses did not install a temporary railing, caution tape, or any other demarcation or barrier around the exposed opening in the floor; there was also no railing on the basement stairs.

         {¶ 4} On September 18, 2014, Steve Walker, a contractor who installed tile, went to the Mullinses' home to provide an estimate for installing tile in a bathroom on the main floor of the house. Hill, who was Walker's girlfriend and his assistant with tile work, accompanied him. When they arrived at the house, Walker and Hill were told that Patricia Mullins was next door at a garage sale. It was the first time Walker or Hill had been to the home. After locating Mullins at the garage sale, Walker proceeded to look at the bathroom with Mullins, while Hill talked with some of Mullins's relatives at the garage sale. According to Hill, she then waited for Walker and Mullins by Walker's van in front of the Mullinses' house.

         {¶ 5} When Walker and Mullins emerged from the house, Walker worked on his estimate in the van while Mullins and Hill talked nearby. Mullins and Hill then headed inside to look at the bathroom; according to Hill, she also needed to assess what materials and tools would be needed for the job, and Mullins wanted to show her some of the poor workmanship performed by other contractors.

         {¶ 6} Mullins and Hill, each of whom provided deposition testimony, disagree about what happened next, including whether Walker reentered the house with them. According to Hill, she followed Mullins through the front door and toward the back hall where the bathroom was located, but as she stepped around the wall near the corner of the open stairs, she fell into the unguarded hole above the stairs to the basement. Hill testified that she had not been looking at the floor because Mullins was talking and pointing out various things in the home, but Hill also stated that, due to the wall and Mullins's presence immediately in front on her, she would not have seen the hole in the floor even if she had been looking. According to Mullins, the women were not talking as they walked through the house, and they had already walked past the hole and looked at the bathroom when, as they headed back toward the front door, Hill stepped into the opening in the floor.

         {¶ 7} As she fell, Hill hit the steps and then the basement floor. She suffered serious injuries, including broken ribs and a punctured lung.

         {¶ 8} On February 13, 2015, Hill filed a complaint for personal injuries against the Mullinses. Depositions of Hill and Mullins were conducted and, on March 21, 2016, the Mullinses filed a motion for summary judgment. The motion relied on Hill's deposition and an affidavit by Mullins, which included pictures of how the opening in the floor had looked on the day of the accident. Hill filed a response to the motion for summary judgment, to which she attached her own affidavit; she also relied on the parties' depositions and an affidavit and report from Larry Dehus, a forensic scientist, who concluded that the opening in the floor had created a "significant danger to anyone entering this house who would be unfamiliar with the location of the opening."

         {¶ 9} On May 9, 2016, the trial court granted the motion for summary judgment, concluding that the opening in the floor was "open and obvious, " that there were no attendant circumstances which created a genuine issue of fact as to whether the hole was open and obvious, and therefore that the Mullinses were not liable to Hill for her fall.

         {¶ 10} Hill raises one assignment of error on appeal, which challenges the trial court's conclusions that the open and obvious doctrine applied and that there were no attendant circumstances which created a genuine issue of material fact.

         II. Summary Judgment Standard

         {¶ 11} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is no genuine issue as to any material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds, after construing the evidence most strongly in favor of the nonmoving party, can only conclude adversely to that party. Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The moving party carries the initial burden of affirmatively demonstrating that no genuine issue of material fact remains to be litigated. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988). Once the moving party satisfies its burden, the burden shifts to the nonmoving party to respond, with affidavits or as otherwise permitted by Civ.R. 56, setting forth specific facts that show that there is a genuine issue of material fact for trial. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996); Civ.R. 56(E). Throughout, the evidence must be construed in favor of the nonmoving party. Id.

         {¶ 12} We review the trial court's ruling on a motion for summary judgment de novo. Schroeder v. Henness, 2d Dist. Miami No. 2012 CA 18, 2013-Ohio-2767, ¶ 42. De novo review means that this court uses the same standard that the trial court should have used, and we examine the evidence, without deference to the trial court, to determine whether, as a matter of law, no genuine issues exist for trial. Ward v. Bond, 2d Dist. Champaign No. 2015-CA-2, 2015-Ohio-4297, ¶ 8.

         III. The "Open and Obvious" Doctrine

         {¶ 13} In order 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); Long v. Speedway, LLC, 2d Dist. Montgomery No. 26851, 2016-Ohio-3358, ¶ 7. The status of a person who enters the land of another defines the scope of the legal duty owed to that person. Gladon v. Greater Cleveland Reg. Transit Auth., 75 Ohio St.3d 312, 315, 662 N.E.2d 287 (1996).

         {¶ 14} A business invitee "is one who enters another's land by invitation for a purpose that is beneficial to the owner." Id. With respect to business invitees, an owner's duty is to keep the premises in reasonably safe condition and warn of dangers that are known to the owner. James v. Cincinnati, 1 st 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 only attaches 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). Hill was clearly a business invitee.

         {¶ 15} However, "if 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. Larrick v. J.B.T., Ltd., 2d Dist. Montgomery No. 21692, 2007-Ohio-1509, ¶ 11, citing Parsons v. Lawson Co.,57 Ohio App.3d 49, 50-51, 566 N.E.2d 698 (5th Dist.1989). The relevant issue is not whether an individual observes the condition, but whether the ...


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