Court of Appeals of Ohio, Eighth District, Cuyahoga
ROBERT BROSNAN, ET AL. PLAINTIFFS-APPELLANTS
HEINEN'S, INC., ET AL. DEFENDANTS-APPELLEES
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANTS Stephen G. Thomas Stephen G. Thomas
ATTORNEY FOR APPELLEES Patrick M. Roche Collins, Roche, Utley
& Garner, L.L.C.
BEFORE: Laster Mays, J., Keough, A.J., and McCormack, J.
JOURNAL ENTRY AND OPINION
LASTER MAYS, J.
Plaintiff-appellant, Robert Brosnan ("Brosnan"),
appeals the trial court's grant of summary judgment in
favor of defendant-appellee, Heinen's, Inc.
("Heinen's"), on Brosnan's claims for
negligence and nuisance. Brosnan's wife, Mary Brosnan,
appeals the derivative loss of consortium claim. We affirm.
Background and Facts
On August 6, 2013, at approximately 10:15 a.m., 71-year-old
Brosnan was walking toward the entrance of the Heinen's
grocery store located in Bainbridge Township, Ohio
("store") when he tripped and fell over a raised
portion of concrete located in the parking lot near the
entrance. At the time of the incident, Brosnan suffered from
a detached retina in his right eye, causing limited
peripheral vision. After the incident, Brosnan suffered from
complete blindness in the right eye.
Heinen's refers to the raised area as a curb while
Brosnan refers to the area as a tail. For purposes of this
case, it is identified as the "edge." Heinen's
position is that: (1) the edge is a curb and no defect
exists; (2) Brosnan was familiar with the lot and visited
weekly; (3) the lighting was sufficient; (4) the traffic was
typical; and (5) the edge was open and obvious. Brosnan
admitted that he was aware of the existence of the edge
because there were similar areas in the parking lot, but he
was not paying attention to where he was walking because he
was watching for traffic.
Brosnan further describes the edge as a "concrete
tail" measuring "slightly more than two inches in
height, " located near the store entrance at Ohio State
Highway Route 306. The edge once served as an
"architectural landscaping feature." Brosnan denies
that the edge was open and obvious due to the: (1) lack of
yellow cautionary paint; (2) shadows caused by the angle of
sunlight and the building; (3) presence of a speed bump
and/or planter impeding visibility of the edge; and (4)
distraction caused by vehicles entering and exiting from
Route 306 across the access area to the store from the
parking lot. Brosnan contends that these circumstances posed
a reasonably foreseeable risk of harm to pedestrians
navigating the driveway because the edge was not discernible,
served no purpose, and created a tripping hazard for patrons
focused on avoiding oncoming traffic near the entrance of the
Brosnan filed suit on July 28, 2015, against Heinen's and
John Doe placeholders who were dismissed after discovery.
Heinen's moved for summary judgment on August 1, 2016,
that was stayed pending the filing of an answer and the
completion of discovery. Brosnan opposed the motion for
summary judgment on September 13, 2016, discovery was
completed with leave of court, and the trial court granted
summary judgment on November 16, 2016.
The trial court determined:
[I]n construing the evidence in a light most favorable to
plaintiffs, [the court] finds that reasonable minds can come
to only one conclusion, that the curb in Heinen's parking
[lot] on which plaintiff tripped and fell was open and
obvious and that there is no evidence of a defective or
unsafe condition in the parking lot that caused plaintiffs
fall. Plaintiffs argument that the fact that he was looking
out for traffic in the parking lot at the time of his fall
constitutes an attendant circumstance fails because he
testified that the traffic in the parking lot at the time was
not out of the ordinary. See plaintiffs deposition
transcript pages, 54-55, 70-71, and Bounds v. Marc
Glassman, Inc., 8th Dist. Cuyahoga No. 90610,
2008-Ohio-5989, ¶ 25. He has not established that the
traffic in the parking lot at that time was "any
different than a shopper would normally encounter in that
parking lot." Id. Accordingly, there are no
genuine issues of material fact that remain to be litigated
and defendant Heinen's is entitled to judgment as a
matter of law.
The instant appeal followed.
Law and Analysis
Brosnan poses two assigned errors:
I. The trial court erred in granting summary judgment to the
II. The trial court erred in holding that the open and
obvious defense remains viable.
We address the combined errors for purposes of judicial
economy. The trial court's findings are affirmed.
Standard of Review
We review a trial court's entry of summary judgment de
novo, using the same standard as the trial court. Grafton
v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d
241 (1996). Summary judgment may only be granted when the
following is established: (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) that reasonable minds
can come to but one conclusion, and the 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 its favor. Harless v. Willis Day Warehousing
Co., 54 Ohio St.2d 64, 67, 375 N.E.2d 46 (1978); Civ.R.
The party moving for summary judgment bears the initial
burden of apprising the trial court of the basis of its
motion and identifying those portions of the record that
demonstrate the absence of a genuine issue of fact on an
essential element of the nonmoving party's claim.
Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d
264 (1996). "Once the moving party meets its burden, the
burden shifts to the nonmoving party to set forth specific
facts demonstrating a genuine issue of material fact
exists." Willow Grove, Ltd. v. Olmsted Twp.,
8th Dist. Cuyahoga No. 101996, 2015-Ohio-2702, 38 N.E.3d
1133, ¶ 14-15, citing Dresher. "To satisfy
this burden, the nonmoving party must submit evidentiary
materials showing a genuine dispute over material
facts." Willow Grove at ¶ 15, citing
PNC Bank v. Bhandari, 6th Dist. Lucas No. L-12-1335,
Brosnan is required to establish that genuine issues of
material fact exist regarding whether: (1) Heinen's owed
Brosnan a duty of care; (2) Heinen's breached the duty;
and (3) whether Heinen's breach was the proximate cause
of Brosnan's injury. Bounds v. Marc Glassman,
Inc., 8th Dist. Cuyahoga No. 90610, 2008-Ohio-5989,
¶ 10, inciting Texler v. D.O Summers Cleaners &
Shirt Laundry Co., 81 Ohio St.3d 677, 680, 693 N.E.2d
"Whether a duty exists is a question of law for the
court to determine." Bounds at ¶ 10,
citing Mussivand v. David,45 Ohio St.3d 314, 318,
544 N.E.2d 265 (1989). There can be no legal liability in the
absence of establishing the existence of a duty.
Bounds at ¶ 10, citing Jeffers v.
Olexo,43 Ohio St.3d 140, 142, 539 N.E.2d 614 (1989).
The "analysis ends and no further inquiry is
necessary." Boun ...