to S.C. Reporter 4/30/18
Plaintiff Julie Studer ("plaintiff) filed a complaint
against defendant, University of Cincinnati ("UC").
Plaintiff asserted on June 10, 2016, while attending an event
at defendant's Kresge auditorium, she tripped and fell
due to darkness and a raised place in the handicapped
section. As a result of the trip and fall, she sustained a
dislocated left ring finger. As a result of this injury, she
suffered swelling of her knuckle. Plaintiff seeks damages in
the amount of $1, 934.00, which includes medical expenses
incurred plus an arthritic clip so she is able to wear her
ring over her swelled knuckle. Plaintiff submitted the $25.00
Defendant submitted an investigation report denying
liability. Defendant acknowledges that plaintiff fell on the
day in question, but disputes that UC's negligence caused
her injury. The row in which plaintiff fell is located
furthest from the stage and is configured to accommodate
those with mobility issues. Defendant's investigation
revealed the following: "the A9 Section Plan shows that
the offset extends a maximum of two feet and seven inches.
The offset is level and then reaches a maximum height of 4
and 1/8 inches. The area where plaintiff fell is
carpeted… "The lights were dimmed, but minimal
lights remained on for safety and the stage was lit."
Defendant argues that the offset was both minor and open and
obvious. While defendant acknowledges that plaintiff was an
invitee, defendant asserted variation in height was open and
obvious and accordingly, UC had no obligation to notify
plaintiff. This variation was not obstructed and was visible
to patrons of the auditorium.
Defendant addressed plaintiffs claim that attendant
circumstances diverted plaintiffs attention away from the
hazard causing her fall. Defendant contended darkness is a
common feature on entering an auditorium where a presentation
is being made. Accordingly, this condition should have
heightened plaintiffs caution when navigating the seating
area. Accordingly, defendant argues that plaintiffs claim
should be denied.
Plaintiff submitted a response to defendant's
Plaintiff was present on defendant's premises for such
would classify her under the law as an invitee. Scheibel
v. Lipton, 156 Ohio St. 308, 102 N.E.2d 453 (1951).
Consequently, defendant was under a duty to exercise ordinary
care for the safety of invitees such as plaintiff and to keep
the premises in a reasonably safe condition for normal use.
Presley v. City of Norwood, 36 Ohio St.2d 39, 303
N.E.2d 81 (1973). The duty to exercise ordinary care for the
safety and protection of invitees such as plaintiff includes
having the premises in a reasonably safe condition and
warning of latent or concealed defects or perils which the
possessor has or should have knowledge. Durst v.
VanGundy, 8 Ohio App.3d 72, 455 N.E.2d 1319 (10th Dist.
1982); Wells v. University Hospital, 86-01392-AD
(1985). As a result of plaintiff's status, defendant was
also under a duty to exercise ordinary care in providing for
plaintiff's safety and warning her of any condition on
the premises known by defendant to be potentially dangerous.
Crabtree v. Shultz, 57 Ohio App.2d 33, 384 N.E.2d
1294 (10th Dist. 1977).
However, an owner of a premises has no duty to warn or
protect an invitee
of a hazardous condition, where the condition is so obvious
and apparent that the invitee should reasonably be expected
to discover the danger and protect herself from it.
Parsons v. Lawson Co., 57 Ohio App.3d 49, 566 N.E.2d
698 (5th Dist. 1989); Blair v. Ohio Department of
Rehabilitation and Correction, 61 Ohio Misc.2d 649, 582
N.E.2d 673 (Ct. of Cl. 1989). This rationale is based on
principles that an open and obvious danger is itself a
warning and the premises owner may expect persons entering
the premises to notice the danger and take precautions to
protect themselves from such dangers. Simmers v. Bentley
Constr Co., 64 Ohio St.3d 642, 597 N.E.2d 504 (1992).
Plaintiff, essentially countered that the lack of lighting in
the area constituted an attendant circumstance thereby
providing an exception to the open and obvious doctrine. See
Cummin v. Image Mark, Inc., 10th Dist. No.
03AP-1284, 2004-Ohio-2840, at ¶ 8, citing McGuire v.
Sears, Roebuck & Co., 118 Ohio App.3d 494, 498, 693
N.E.2d 807 (1st Dist. 1996). The attendant circumstance
exception applies if something beyond the plaintiffs control
contributes to the fall - other than, or in addition to, the
open and obvious condition. Backus v. Giant Eagle,
Inc. 115 Ohio App.3d 155, 158, 684 N.E.2d 1273 (7th
Dist. 1996). In Barrett v. Enterprise Rent-A-Car
Co., 10th Dist. App. No. 03AP-1118, 2004-Ohio-4646, the
Tenth District Court of Appeals found that "attendant
circumstances" can include any distraction that would
come upon a pedestrian in the same circumstances and reduce
the degree of care an ordinary person would exercise at the
time. "The attendance circumstances must, taken
together, divert the attention of the pedestrian,
significantly enhance the danger of the defect, and
contribute to the fall. * * * Both circumstances contributing
to and those reducing the risk of the defect must be
considered." Id. at ¶ 14, quoting
McGuire v. Sears, Roebuck & Co., supra, at 499.
"'Darkness' is always a warning of danger, and
for one's own protection it may not be disregarded."
Jeswald v. Hutt,15 Ohio St.2d 244, 239 N.E.2d 37 ...