Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Court T.C. NO. 15CV861
WASHINGTON STEPHEN D. BEHNKE ROBERT L. GRESHAM Attorneys for
CHRISTOPHER W. CARRIGG Attorney for Defendants-Appellees
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.
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
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
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
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.
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.
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 ...