[Cite as Allen v. Rankin, 2013-Ohio-456.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY
SUSAN M. ALLEN, ET AL., : : Plaintiffs-Appellants, : Case No. 12CA10 : vs. : : JOHN A. RANKIN, DBA : DECISION AND JUDGMENT TUSCAN TABLE RESTAURANT, : ENTRY ET AL., : : Defendants-Appellees. : Released: 01/29/13 _____________________________________________________________ APPEARANCES:
Roy H. Huffer, Huffer & Huffer Co., L.P.A., Circleville, Ohio, for Appellants.
Carl A. Aveni, CARLILE PATCHEN & MURPHY LLP, Columbus, Ohio, for Appellee John A. Rankin, dba Tuscan Table Restaurant and Rankin Enterprises, LLC, Mark H. Gams, GALLAGHER, GAMS, PRYOR, TALLAN & LITTRELL L.L.P., Columbus, Ohio, for Appellee Melanio D. Acosta, Ofelia C. Ocasta and Ocasta Properties, LLC, and Michael J. Valentine and Paul N. Garinger, Columbus, Ohio, for Appellee City of Circleville. _____________________________________________________________
McFarland, P.J.:
{¶1} Susan and Roderick Allen appeal the judgment of the Ross
County Court of Common Pleas, granting summary judgment to Defendant-
Appellees John Rankin dba Tuscan Table Restaurant and Rankin
Enterprises, LLC, Defendant- Appellees Melanio D. Acosta and Ofelia C. Pickaway App. No. 12CA10 2
Acosta and Acosta Properties, LLC, and Defendant-Appellee City of
Circleville. Having reviewed the record and the pertinent law, we affirm.
FACTS
{¶2} Appellant Susan M. Allen fell on a sidewalk in the City of
Circleville on December 10, 2008. The sidewalk abutted 122 North Court
Street, which was property owned by Acosta Properties LLC. John Rankin
dba Tuscan Table Restaurant leased 122 North Court Street from the
Acostas. The restaurant and a bank called the Savings Bank were both
located on the same side of North Court Street.
{¶3} On the incident date, Appellant and her son had eaten lunch at
Wendys, and she asked him to take her to the bank. She had no intention of
entering the Tuscan Table Restaurant, although she had eaten there on
previous occasions. Appellant’s son parallel-parked on Court Street.
Appellant testified on the date of the fall, she got out of her son’s pickup
truck on the passenger side and headed southbound toward the Savings
Bank.
{¶4} As Appellant walked towards the bank, she encountered a street
sign, a lamp post, and a tree with a metal grate around the base. When she
fell, she was angled from the tree and her head was toward the front entrance
of the Tuscan Table. Appellant broke her right wrist. Pickaway App. No. 12CA10 3
{¶5} Appellant denied problems seeing or any distractions as she
walked. It was a cloudy day, but there was no ice or snow. She testified she
had no problems with the lighting conditions. Before she fell, she was
looking straight ahead, not looking down.
{¶6} In deposition, Appellant could not say whether she tripped over
the grate or the raised portion of the sidewalk. She testified to the height of
the raised portion of the sidewalk in contradictory terms. She first testified
the raised concrete was “two inches or more.” Then she said it “Might have
been an inch and three-fourths. I don’t know.” She further testified “I
would say it is an inch and three-fourths or more than two.” Appellant went
back a few weeks later and saw no changes to the area or the condition of
the sidewalk. This time, she was either inside or standing next to a parked
car and could see the raised concrete from some distance.
{¶7} Appellant Susan Allen later supplemented her deposition
testimony with a sworn affidavit. She testified that she was distracted by the
street lamp post, the sign post, and the tree. Specifically she stated in her
affidavit that when she exited the truck passenger door, she was immediately
confronted with the lamppost which prevented her from leaving the two-foot
wide brick area abutting the curb in order to get to the wider area of the
concrete sidewalk. After three to four feet, she still could not get inward to
the sidewalk because she was obstructed by the sign post. After another four Pickaway App. No. 12CA10 4
to five feet, she encountered the grate around the tree and then moved
inward to the sidewalk. Appellant also noted in her affidavit that she was
unable to detect a gradual incline in the concrete when the color and material
all looked the same from above.
{¶8} Appellant Roderick Allen also testified in deposition that he was
not sure what his wife tripped over, whether it was the concrete sidewalk or
the grate. He testified he and his son went to measure the concrete sidewalk
approximately 30 days after the fall. As far as he could tell, nothing had
been altered or changed. In his opinion, the concrete was heaved up and his
wife stepped into a space where she thought there was concrete but it was
just a gap, east of the tree. He measured a line of raised concrete running
north and south. He testified the concrete was two inches or less where he
measured.
{¶9} Roderick Allen also supplemented his deposition testimony with
a sworn affidavit. Essentially, Appellant stated that when he testified “two
inches or less” in deposition, he thought the questioning attorney was
referring to the other raised areas of the sidewalk.
{¶10} Appellants’ Allen filed a complaint in negligence against John
A. Rankin dba Tuscan Table Restaurant, Rankin Enterprises LLC, Tuscan
Table LLC, (hereinafter to be collectively referred to as “Rankin”), Melanio
D. Acosta, Ofelia C. Acosta, and Acosta Properties LLC, (hereinafter to be Pickaway App. No. 12CA10 5
collectively referred to as “Acostas”), and the City of Circleville,
(hereinafter “the City”), on December 7, 2010. 1 Appellant Susan Allen
alleged permanent personal injuries, medical expenses past and future, and
pain and suffering. Appellant Roderick Allen alleged loss of consortium and
payment of medical expenses on behalf of his wife.
{¶11} In the complaint, Appellants did not allege either Rankin,
Acostas, or the City owned the sidewalk where the fall occurred. Appellants
did not allege willful and wanton conduct on the part of the defendants.
Further Appellants did not allege that there was a violation of any city
ordinance.
{¶12} All Defendants- Appellees filed timely answers and discovery
ensued. Eventually, all defendants filed motions for summary judgment. 2
Defendant-Appellee City of Circleville contended it was entitled to
sovereign immunity and argued in the alternative: (1) the condition of the
concrete sidewalk was open and obvious; (2) it was not liable for minor
imperfections of two inches or less; and (3) there was no evidence of
attendant circumstances. Plaintiffs-Appellants filed a memorandum contra
defendant City of Circleville’s motion for summary judgment, in which it
did not address or dispute the immunity argument.
1 Appellants also named XYZ LLC, Corporations 1, 2, and 3, as well as Jane Does 1, 2, and 3 as defendants in the lawsuit. 2 Defendants-Appellees Rankin joined in and adopted the City and Acostas’ motions for summary judgment. Pickaway App. No. 12CA10 6
{¶13} On April 12, 2012, the trial court issued its decision. The trial
court dismissed the City of Circleville, noting that Plaintiffs-Appellants had
not disputed the City’s argument that it was entitled to immunity. The trial
court also found that Plaintiff Susan Allen was at most, a licensee, and there
was no evidence that Defendants Acostas/Rankin had intent, purpose, or
design to injure Mrs. Allen. The trial court further found that any
unevenness in the sidewalk was open and obvious; any imperfection in the
sidewalk was two inches or less; and, there was no evidence of attendant
circumstances. As such, the trial court granted summary judgment to
Defendants Acosta/Rankin as well.
{¶14} The trial court further analyzed the facts under the rule set forth
in Eichorn v. Lustig’s Inc., 161 Ohio St. 11, 117 N.E.2d 436 (1954), as to
the duties of abutting property owners. This analysis necessitated discussion
of Circleville City Ordinance 521.06(a) which was not an issue raised by
Plaintiffs-Appellants. Instead, the ordinance was discussed in the motion for
summary judgment of Defendants/Appellees Acosta/Rankin as an alternative
defense.
{¶15} The trial court also dismissed Appellant Roderick Allen’s loss
of consortium claim.
{¶16} This appeal followed. Appellant’s sole assignment of error
does not include a challenge to the trial court’s application of the doctrine of Pickaway App. No. 12CA10 7
sovereign immunity herein which discharged the City of Circleville of
liability.
ASSIGNMENT OF ERROR
I. “THE TRIAL COURT ERRED AS A MATTER OF LAW BY GRANTING DEFENDANTS/APPELLEES’ MOTIONS FOR SUMMARY JUDGMENT ON THE BASIS THAT THE DEFECTIVE SIDEWALK WAS A MINOR DEFECT OF LESS THAN TWO (2) INCHES AND THE THREE (3) OBSTACLES IMPEDING PLAINTIFF/APPELLANT, SUSAN M. ALLEN’S, ACCESS TO THE MAIN AREA OF THE SIDEWALK, PLUS THE SAME COLOR OF CONCRETE, WERE INSUFFICIENT ATTENDANT CIRCUMSTANCES TO RENDER THE DEFECT SUBSTANTIALLY AND UNREASONABLY DANGEROUS.”
LEGAL ANALYSIS
A. STANDARD OF REVIEW
{¶17} Initially, we note that appellate courts conduct a de novo review
of trial court summary judgment decisions. See, e.g., Grafton v. Ohio Edison
Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241(1996). Accordingly, an
appellate court must independently review the record to determine if
summary judgment is appropriate and need not defer to the trial court's
decision. See Brown v. Scioto Bd. of Commrs., 87 Ohio App.3d 704, 711,
622 N.E.2d 1153 (1993); Morehead v. Conley, 75 Ohio App.3d 409, 411-12,
599 N.E.2d 786 (1991). Thus, to determine whether a trial court properly
granted a summary judgment motion, an appellate court must review the
Civ.R.56 summary judgment standard, as well as the applicable law. Pickaway App. No. 12CA10 8
Civ. R. 56(C) provides, in relevant part, as follows:
* * * Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence in the pending case, and written stipulations of fact, if
any, timely filed in the action, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of
law. No evidence or stipulation may be considered except as stated in this
rule. A summary judgment shall not be rendered unless it appears from the
evidence or stipulation, and only from the evidence or stipulation, 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, that party being entitled to have the evidence or stipulation construed
most strongly in the party's favor.
{¶18} Pursuant to Civ.R. 56, a trial court may not award summary
judgment unless the evidence demonstrates that: (1) no genuine issue as to
any material fact remains to be litigated; (2) the moving party is entitled to
judgment as a matter of law; and (3) reasonable minds can come to but one
conclusion, and after viewing such evidence most strongly in favor of the
nonmoving party, that conclusion is adverse to the party against whom the
motion for summary judgment is made. See, e.g., Vahila v. Hall, 77 Ohio
St.3d 421, 429-30, 674 N.E.2d 1164 (1997). Pickaway App. No. 12CA10 9
{¶19} Appellee Rankin urges us to summarily affirm the trial court’s
decision and decline review of this matter due to Appellants’ failure to
adhere to the requirements of Appellate Rules 12(A)(1)(b) and 16. App.R.
12(A)(1)(b) provides that on an undismissed appeal from a trial court, a
court of appeals shall determine the appeal on its merits on the assignments
of error set forth in the briefs under App.R. 16, the record on appeal under
App.R. 9, and, unless waived, the oral argument under App.R. 21. Relevant
to this discussion is App. R. 16(A)(3), which requires that an appellant
include in its brief a statement of the assignments of error presented for
review, with reference to the place in the record where each error is
reflected. Assignments of error should designate specific rulings which the
appellant challenges on appeal. North Coast Cookies, Inc. v. Sweet
Temptations, Inc., 16 Ohio App.3d 342, 476 N.E.2d 388 (8th Dist. 1984),
paragraph one of the syllabus. They may dispute the final judgment itself or
other procedural events in the trial court. Id. The statement of issues should
express one or more legal grounds to contest the procedural actions
challenged by the assigned errors. Id. See, e.g. Ellis v. Miller, 4th Dist. No.
00CA17, 2001-Ohio-2549, 2001 WL 978868, fn 1, explaining the difference
between “assignments of error” and “statement of issues” and their
relationship to App.R. 16(A)(3). Appellants’ brief reflects a lack of
understanding or possible misapplication of the requirements of the appellate Pickaway App. No. 12CA10 10
rules. Nevertheless, in the interests of justice, we will address the merits of
Appellants’ arguments.
B. NEGLIGENCE
{¶20} Before we address the specific arguments raised by Appellants’
assignment of error, we note that Appellants filed their action based on
claims of negligence. The trial court’s decision found that Appellant Susan
Allen was a licensee and therefore owed only the duty on the part of
defendants to refrain from willful and wanton conduct. We begin by
reviewing the general Ohio law on negligence and premises liability.
{¶21} A successful negligence action requires a plaintiff to establish
that: (1) the defendant owed the plaintiff a duty of care; (2) the defendant
breached the duty of care; and (3) as a direct and proximate result of the
defendant's breach, the plaintiff suffered injury. See, e.g., Texler v. D.O.
Summers Cleaners, 81 Ohio St.3d 677, 680, 693 N.E.2d 217 (1998); Jeffers
v. Olexo, 43 Ohio St.3d 140, 142, 539 N.E.2d 614 (1989); Menifee v. Ohio
Welding Products, Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984). If a
defendant points to evidence to illustrate that the plaintiff will be unable to
prove any one of the foregoing elements, and if the plaintiff fails to respond
as Civ.R. 56 provides, the defendant is entitled to judgment as a matter of
law. See Lang v. Holly Hill Motel, Inc., 4th Dist. No. 06CA18, 2007-Ohio- Pickaway App. No. 12CA10 11
3898, 2007 WL 2191793, at ¶ 19, affirmed, 122 Ohio St.3d 120, 2009-
Ohio-2495, 909 N.E.2d 120.
{¶22} The existence of a defendant's duty is a threshold question in a
negligence case. See Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79,
2003- Ohio- 2573, 788 N.E.2d 1088, at ¶ 13. In a premises liability case, the
relationship between the owner or occupier of the premises and the injured
party determines the duty owed. See, e.g., Gladon v. Greater Cleveland
Regional Transit Auth., 75 Ohio St.3d 312, 315, 662 N.E.2d 287 (1996);
Shump v. First Continental-Robinwood Assocs., 71 Ohio St.3d 414, 417, 644
N.E.2d 291 (1994).
{¶23} Ohio law recognizes three distinct classes: trespassers,
licensees, and invitees. Geog v. Jeffers, 4th Dist. No. 94CA1613, 1994 WL
704529 (Dec. 9, 1994),*2. A person who enters the premises of another by
permission or acquiescence, for his own pleasure or benefit, and not by
invitation, is a licensee. Id., citing Provencher v. Ohio Dept. of Transp. 49,
Ohio St. 3d 265, 266 (1990) “* * *[A]s to the duty owing to a license, * * *,
it may be generally stated that a licensee takes his license subject to its
attendant perils and risks, that the licensor owes him no duty except to
refrain from wantonly or willfully injury him, and that he should exercise
ordinary care after discovering him to be in peril. * * *” Hannan v. Ehrlich, Pickaway App. No. 12CA10 12
102 Ohio St. 176, 185-186, 131 N.E. 504 (1921). See also, Light v. Ohio
University, 28 Ohio St. 3d 66, 68, 502 N.E.2d 611 (1986).
{¶24} “It is generally held that the occupier of premises, who invites
another to enter upon the premises, for some purpose of interest or
advantage to such occupier, owes to the person so invited a duty to use
ordinary care to have his premises in a reasonably safe condition for use in a
manner consistent with the purpose of that invitation. 38 American
Jurisprudence, 754, Section 96. The reason for imposing this duty, with
respect to invitees and not with respect to licensees or trespassers, is that the
invitee is on the premises for a purpose of interest or advantage to the
occupier.” Geog at *2, citing Lampe v. Magoulakis, 159 Ohio St. 72, 111
N.E.2d 7 (1953). The economic, or tangible benefit test has long been
recognized by Ohio courts in order to distinguish the status of an invitee
from that of a licensee. Id. Provencher, at 266. The status of a passerby on a
public sidewalk is “licensee.” Greenberg v. Markowitz, 8th Dist. No. 93838,
2010-Ohio-2228, 2010 WL 2011005, ¶14; Gall v. Systems Parking, Inc.,
8th Dist. No. 66159, 1994 WL 590532, (Oct. 27, 1994). The duty of care
owed to a licensee is to refrain from willful or wanton conduct, which is
when a defendant “fails to exercise any care whatsoever toward those to
whom he owes a duty of care, and his failure occurs under circumstances in Pickaway App. No. 12CA10 13
which there is a great probability that harm will result* * *.” Hawkins v. Ivy,
50 Ohio St. 2d 114, 117-118, 363 N.E.2d 367 (1977).
{¶25} In the case at bar, upon reviewing the facts in the record, we
agree with the trial court that Appellant Susan Allen was a licensee and thus
Appellees Rankin and Acostas owed her no duty, save to refrain from willful
or wanton conduct. Appellant testified she was on the public sidewalk
outside of the Tuscan Table Restaurant, which was located on land owned
by the Acostas. Her purpose was to pass by the area on her way to the
Savings Bank, not to enter the restaurant. She was a passerby on a public
sidewalk, i.e., a licensee. Rankin and Acostas owed her no duty except to
refrain from willfully or wantonly injuring her. In the complaint, Appellants
did not allege willful or wanton conduct on the part of Appellees Rankin and
Acostas. At depositions, Appellants adduced no evidence which would
suggest that Appellees acted willfully or wantonly with regard to their care
and/or maintenance of the sidewalk. As such, we affirm the reasoning of the
trial court which deemed Appellant a “licensee” and found no liability as to
Defendants-Appellees Rankin and Acostas.
{¶26} In addition, we note that Appellant has failed to definitively
explain or identify the cause of her fall. In deposition, she admitted that it
could have been the metal grate or the concrete sidewalk. “To establish
negligence in a slip and fall case, it is incumbent upon the plaintiff to Pickaway App. No. 12CA10 14
identify or explain the reason for the fall.” Lang v. Holly Hill Motel, Inc., 4th
Dist. No. 05CA6, 2005-Ohio-6766, ¶17, quoting Stamper v. Middletown
Hosp. Assn., 65 Ohio App.3d 65, 67-68, 582 N.E.2d 1040 (1989) (internal
citations omitted). In Appellants’ brief, “Statement of Facts,” she states:
“Plaintiff/Appellant Susan M. Allen never specifically knew what caused her to fall because of the three (3) circumstances attendant to the upheaval in the sidewalk. Plus, the concrete was the same color and texture.”
Appellant admits that she cannot explain or identify the cause of her fall.
According to her deposition testimony she could have fallen on the metal
grate or the concrete sidewalk. In her complaint, she did not allege who
owned the metal grate or the concrete sidewalk. She brought forth no
testimony or other evidence in the trial court proceedings as to the issue of
ownership of the sidewalk where she fell. Regardless of an injured party’s
status, in order to have a duty to keep premises safe for others one must be in
possession and control of the premises. Dysart v. Dysart, 2nd Dist. No.
2009 CA 24, 2010 Ohio 1238, 2010 WL 1138929, ¶40. Wireman v. Keneco
Distrib., Inc., 75 Ohio St. 3d 103, 108, 661 N.E.2d 744, 1996 Ohio 152,
citing Wills v. Frank Hoover Supply, 26 Ohio 3d 186, 497 N.E.2d 1118
(1986). Summary judgment as to all defendants would have been proper on
this basis alone. Our analysis could end here, however, we continue to
address the additional arguments raised in Appellants’ brief. Pickaway App. No. 12CA10 15
1. THE “OPEN AND OBVIOUS” DOCTRINE
{¶27} Even if Appellant was a business invitee, as contended, we find
no liability on the part of Appellees Rankin and Acostas. A premises owner
or occupier possesses the duty to exercise ordinary care to maintain its
premises in a reasonably safe condition, such that business invitees will not
unreasonably or unnecessarily be exposed to danger. Paschal v. Rite Aid
Pharmacy, Inc., 18 Ohio St.3d 203, 203, 480 N.E.2d 474 (1985). A premises
owner or occupier is not, however, an insurer of its invitees' safety. Id.
While the premises owner must warn its invitees of latent or concealed
dangers if the owner knows or has reason to know of the hidden dangers, see
Jackson v. Kings Island, 58 Ohio St.2d 357, 359, 390 N.E.2d 810 (1979),
invitees are expected to take reasonable precautions to avoid dangers that are
patent or obvious. See Brinkman v. Ross, 68 Ohio St.3d 82, 84, 623 N.E.2d
1175 (1993); Sidle v. Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589, (1968)
paragraph one of the syllabus.
{¶28} Therefore, when a danger is open and obvious, a premises
owner owes no duty of care to individuals lawfully on the premises. See
Armstrong, at ¶ 5; Sidle, paragraph one of the syllabus. By focusing on duty,
“the rule properly considers the nature of the dangerous condition itself, as
opposed to the nature of the plaintiff's conduct in encountering it.”
Armstrong at ¶13.The underlying rationale is that “the open and obvious Pickaway App. No. 12CA10 16
nature of the hazard itself serves as a warning. Thus, the owner or occupier
may reasonably expect that persons entering the premises will discover those
dangers and take appropriate measures to protect themselves.” Id. at ¶ 5.
“The fact that a plaintiff was unreasonable in choosing to encounter the
danger is not what relieves the property owner of liability. Rather, it is the
fact that the condition itself is so obvious that it absolves the property owner
from taking any further action to protect the plaintiff.” Id. at ¶ 13. Thus, the
open and obvious doctrine obviates the duty to warn and acts as a complete
bar to recovery. Id. at ¶5. Furthermore, the issue of whether a hazard is open
and obvious may be decided as a matter of law when no factual issues are
disputed. Nageotte v. Cafaro Co., 160 Ohio App.3d 702, 710, 2005-Ohio
2098, 828 N.E.2d 683, at ¶ 28, citing Armstrong.
2. “TWO INCH RULE”
{¶29} Addressing the first prong of Appellants’ assignment of error,
Appellants’ contend that the trial court erred by its finding that the defective
sidewalk at issue was less than two inches. 3 The “two-inch rule” has been
clarified by the Supreme Court of Ohio in Cash v. Cincinnati, 66 Ohio St.2d
319, 421 N.E.2d 1275 (1981). In Cash, the Supreme Court established that
differences in height of two inches or less create a rebuttable presumption
3 Further, Appellants’ Statement of Issue No. 1 reads: “Were the facts presented to the trial court regarding the heighth of the defect in controversy, so as not to meet the legal standard required before summary judgment can be granted?” Pickaway App. No. 12CA10 17
which may be rebutted by a showing of attendant circumstances sufficient to
render the defect substantial. Cash, at 323-324. What constitutes attendant
circumstances has not been clearly defined; however, the totality of the
circumstances of each case must be examined to determine if the
circumstances create a substantial defect. Stockhauser v. Archdiocese of
Cincinnati, 97 Ohio App. 3d 29, 646 N.E.2d 198 (2nd. Dist. 1994) citing
France v. Parliament Park Townhomes, 2nd. Dist. No. 14264, 1994 WL
151658 (Apr. 27, 1994).
{¶30} In this matter, Appellants presented conflicting evidence in
deposition as to the heighth of the raised concrete in the sidewalk. Appellant
Susan Allen first testified that the raised portion was “two inches or more.”
Then she testified “It might have been an inch and three-fourths. I don’t
know.” She further testified “I would say it is an inch and three-fourths or
more than two.” Appellant Roderick Allen testified in deposition that the
concrete was two inches or less where he measured. In his supplementary
affidavit, he stated that when he answered “two inches or less” he was
referring to the other raised areas of the sidewalk. The trial court found that
the imperfection in the concrete were minor, two inches or less.
{¶31} We have said that “[a]n affidavit of a party opposing summary
judgment that contradicts former deposition testimony of that party may not,
without sufficient explanation, create a genuine issue of material fact to Pickaway App. No. 12CA10 18
defeat the motion for summary judgment.” Galyean v. Greenwell, 4th Dist.
No. 05CA11, 2007-Ohio-615, 2007 WL 453274, ¶38, quoting Byrd v. Smith,
110 Ohio St. 3d 24, 2006-Ohio-3455, 850 N.E.2d 47 (2006). In this matter,
both Appellants submitted affidavits to supplement their testimony. It
appears that the trial court disregarded the affidavits or found them not have
contained sufficient explanations for the contradiction of both Appellants’
deposition testimony, so as to create a genuine issue of material fact. Upon
review of the facts and circumstances, we agree with the trial court’s finding
that the imperfections in the concrete were minor.
3. “ATTENDANT CIRCUMSTANCES”
{¶32} The second prong of Appellants’ sole assignment of error
contends that the trial court erred by its finding that there were insufficient
attendant circumstances to render the sidewalk substantially and
unreasonably dangerous. “Attendant circumstances” may also create a
genuine issue of material fact as to whether a hazard is open and obvious.
See Lang, 2007-Ohio-3898, at ¶ 24; Cummin v. Image Mart, Inc., 10th Dist.
No. 03AP1284, 2004-Ohio-2840, 2004 WL 1220041, at ¶ 8, citing McGuire
v. Sears, Roebuck & Co., 118 Ohio App.3d 494, 498, 693 N.E.2d 807
(1st.Dist. 1996). An attendant circumstance is a factor that contributes to the
fall and is beyond the injured person's control. See Backus v. Giant Eagle,
Inc., 115 Ohio App.3d 155, 158, 684 N.E.2d 1273(7th Dist.1996). “The Pickaway App. No. 12CA10 19
phrase refers to all circumstances surrounding the event, such as time and
place, the environment or background of the event, and the conditions
normally existing that would unreasonably increase the normal risk of a
harmful result of the event.” Cummin at ¶8, citing Cash. An “attendant
circumstance” has also been defined to include “any distraction that would
come to the attention of a pedestrian in the same circumstances and reduce
the degree of care an ordinary person would exercise at the time.” McGuire,
118 Ohio App.3d at 499, 693 N.E.2d 807.
{¶33} Attendant circumstances do not include the individual's activity
at the moment of the fall, unless the individual's attention was diverted by an
unusual circumstance of the property owner's making. See Id. at 498, 693
N.E.2d 807. Moreover, an individual's particular sensibilities do not play a
role in determining whether attendant circumstances make the individual
unable to appreciate the open and obvious nature of the danger. As the court
explained in Goode v. Mt. Gillion Baptist Church, 8th Dist. No. 87876,
2006-Ohio-6936, 2006 WL 3804534, at ¶ 25: “The law uses an objective,
not subjective, standard when determining whether a danger is open and
obvious. The fact that appellant herself was unaware of the hazard is not
dispositive of the issue. It is the objective, reasonable person that must find
that the danger is not obvious or apparent.” Thus, we use an objective
standard to determine whether the danger associated with the condition was Pickaway App. No. 12CA10 20
open and obvious. Furthermore, the question of whether a danger is open
and obvious is highly fact-specific. Stanfield v. Amvets Post No. 88, 2nd
Dist. No. 06CA35, 2007-Ohio-1896, 2007 WL 1174445, at ¶ 12; Henry v.
Dollar General Store, 2nd Dist. No.2002CA47, 2006-Ohio-206, 2006 WL
156697, at ¶ 16.
{¶34} Here, Appellant argues that attendant circumstances distracted
her as she walked, namely, the street lamp post, the sign post, the tree. She
also asserts the color and texture of the concrete made it difficult for her to
see. Taken together, Appellants argue these created attendant circumstances.
The trial court found the condition of the concrete to be open and obvious
and found no evidence of attendant circumstances. Again, Appellant’s
supplementary affidavit directly contradicted her deposition testimony. Her
deposition testimony was clear that she had no distractions as she walked.
She never mentioned the color or texture of the concrete. Her affidavit,
however, explicitly described the street lamp, sign post, and tree as
distracting her at various intervals as she walked. Again, the trial court
apparently did not find her explanation of the discrepancy in testimony to be
sufficient so as to create a genuine issue of material fact. Upon review of
the facts and circumstances, we affirm the finding of the trial court that there
was no evidence of attendant circumstances. Pickaway App. No. 12CA10 21
C. EICHORN ANALYSIS
{¶35} Having affirmed the trial court’s previous findings, it would be
sufficient to end our analysis as to the liability of Appellees Rankin and
Acosta at this juncture. However, in its decision, the trial court analyzed the
facts and circumstances herein in conjunction with the law set forth in
Eichorn v. Lustig’s Inc., 161 Ohio St. 11, 117 N.E.2d 436 (1954). And,
although not directly set forth as an assignment of error, Appellants’
Statement of Issue No. 2 states: “When is it appropriate to grant summary
judgment in favor of a Defendant in a defective sidewalk case when
considering the application of one of the exceptions to the general rule”?
Given the arguments made in Appellant’s memoranda contra the various
motions for summary judgment and the trial court’s analysis under Eichorn,
we construe this as a challenge to the trial court’s decision applying the law
in Eichorn.
{¶36} Normally, the owner of property that abuts a public sidewalk is
not liable for injuries sustained by pedestrians using the sidewalk because
the duty to keep streets, including sidewalks, in repair rests upon
municipalities and not upon the abutting owners. Morgan v. Gracely, 4th
Dist. No. 05CA36, 2006-Ohio-2344, 2006 WL 1304858, ¶9; Eichorn.
However, there are three exceptions to this rule: Pickaway App. No. 12CA10 22
First, an abutting landowner will be liable for a pedestrian’s injuries if a statute or ordinance imposes upon him a specific duty to keep a sidewalk adjoining his property in good repair. Crowe v. Hoffmann, 13 Ohio App.3d 254,255, 468 N.E.2d 1120, 1122(1983). Second, the landowner will be liable if his affirmative acts created or negligently maintained the defective or dangerous condition causing the injury. Id., citing Eichorn, supra. Third, the landowner will be liable if he negligently permitted the defective or dangerous condition to exist ***for some private use or benefit. Id.
{¶37} Appellants’ Issue No. 4 also reads: “When does a municipal
ordinance create a specific mandatory duty?” We construe Appellants as
making the argument here, that Appellees Rankin and Acostas are liable for
Appellant Susan Allen’s injuries by virtue of the first exception to the
Eichorn rule. Appellants’ contend on appeal that the City of Circleville,
Codified Ordinance 521.06(a) imposes upon Appellees Rankin and Acostas
a specific duty to keep the sidewalk where Susan Allen fell in good repair.
The ordinance reads as follows:
(a) No owner or occupant of abutting lands shall fail to keep the sidewalks, curbs or gutters in repair and free from snow, ice, or any nuisance. On any claim presented for bodily or property damage on the sidewalks, curbs or gutters, the adjoining or abutting property owner shall be held liable in tort for such damages to another. Alternatively, should the City of Circleville be called upon to make such payment to a third- party, the City will look to the adjoining or abutting landowner for contribution and indemnity. (b) Whoever violates this section is guilty of a minor misdemeanor. Pickaway App. No. 12CA10 23
{¶38} In the case at bar, the trial court noted that Appellants
never asserted in its complaint violation of the above city ordinance as
a basis for liability. In discovery, Appellants never produced evidence
that Appellees Rankin and Acostas violated the city ordinance. The
ordinance was brought to light only as an alternative basis for defense
in Appellees’ Acostas’ motion for summary judgment. When the
ordinance was cited, Plaintiffs-Appellants only response was:
“The City Ordinance 521-06(a) puts the liability on the property owner for any injuries to pedestrians. Defendants-Acostas have set forth the entirety of Ordinance 521-06(a). It is respectfully submitted that Legislative laws supersede common law.”
At no time did Appellants move to amend their complaint to
assert this claim. At no time did Appellants further develop an
argument with regard to the city ordinance when the theory was raised
in motion practice. Appellants did not raise the issue of the ordinance
in the trial court and they cannot now raise the issue. Sekora v.
General Motors Corp., 61 Ohio App.3d 105, 112-113, 572 N.E.2d
184, (11th Dist. 1989). Appellants have waived any error with regard
to the application of the city ordinance at the trial court level. Id. See
also, Kalish v. Trans World Airlines, 50 Ohio St.2d 73, 362 N.E.2d
994 (1977). Pickaway App. No. 12CA10 24
D. SOVEREIGN IMMUNITY
{¶39} Finally, we note Appellants’ sole assignment of error does not
dispute the grant of summary judgment to the City of Circleville, based on
the doctrine of sovereign immunity. We further note that Appellants’
“Statement of Issues Presented for Review” does not specify the immunity
statute, R.C. 2744.02, but lists as Issue No. 3: “When should a statute be
held to be unconstitutional and, therefore, inapplicable?” We construe this
as a challenge to the immunity statute and the grant of summary judgment to
the City of Circleville on this basis. Therefore, for clarification and in the
interests of justice, we will briefly address the application of the doctrine of
sovereign immunity herein and the constitutionality of the immunity statute.
{¶40} R.C. Chapter 2744 establishes a three-step analysis for
determining whether a political subdivision is immune from liability.
Martin v. Ironton, 4th Dist. No.07CA37, 2008-Ohio-2842, 2008 WL
2381737, ¶9. See Cramer v. Auglaize Acres, 113 Ohio St.2d 266, 270,
2007-Ohio-1946, 865 N.E.2d 9, at ¶14; Cater v. Cleveland, 83 Ohio St. 3d
24, 28, 697 N.E.2d 610 (1998). First, R.C. 2744.02(A)(1) sets forth the
general rule that a political subdivision is immune from tort liability for acts
or omissions connected with governmental or proprietary functions. See
Cramer; Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 Pickaway App. No. 12CA10 25
N.E.2d 781, at¶7. Second, R.C. 2744.02(B) lists five exceptions to the
general immunity granted to political subdivisions under R.C.
2744.02(A)(1). See Cramer; Ryll v. Columbus Fireworks Display Co., 95
Ohio St.3d 467, 470, 2002-Ohio-2584, 769 N.E.2d 372, at ¶25. Finally,
R.C. 2744.03(A) sets forth several defenses that a political subdivision may
assert if R.C. 2744.02(B) imposes liability. See Cramer; Colbert at ¶9.
Whether a political subdivision is entitled to statutory immunity under
Chapter 2744 presents a question of law. See, e.g., Conley v. Shearer, 64
Ohio St. 3d 284, 292, 595 N.E.2d 862 (1992); Murray v. Chillicothe, 164
Ohio App.3d 294, 2005-Ohio-5864, 842 N.E.2d 95, at ¶11 (4th Dist.).
{¶41} To the extent that Appellants’ brief challenges the grant of
summary judgment to Defendant- Appellant City of Circleville based on
sovereign immunity, which it did not dispute at the trial court level, and now
contends that the immunity statute is unconstitutional, we disagree. The trial
court found that the facts of this case do not qualify so as to invoke any of
the exceptions to immunity as defined in R.C. 2744.02(B). We agree.
Furthermore, it is well-settled that the sovereign immunity statute is
constitutional. In O’Toole v. Denihan, 118 Ohio St. 3d 374, 2008-Ohio-
2574, 889 N.E.2d 505 (2008), at ¶95, the Supreme Court of Ohio stated: “In
reviewing our precedent and that of numerous appellate courts, we conclude
that this issue is one that is settled and need not be discussed any further in Pickaway App. No. 12CA10 26
this case.” Cf. Fahnbulleh v. Strahan, 73 Ohio St. 3d 666, 653 N.E.2d 1186
(1995); Fabrey v. McDonald Village Police Dept., 70 Ohio St. 3d 351, 639
N.E.2d 31, (1994); Bundy v. Five Rivers Metroparks, 152 Ohio App. 3d 426,
2003-Ohio-1766, 787 N.E.2d 1279, ¶45-47. See, more recently, Fitzgerald
v. Cuyahoga, 8th Dist. No. 97772, 2012-Ohio-2638, 2012 WL 2150896,
at¶6. Therefore, we affirm the decision of the trial court granting summary
judgment to the City of Circleville on this basis.
E. LOSS OF CONSORTIUM
{¶42} A claim for loss of consortium is derivative in that the claim is
dependent upon the defendant having committed a legally cognizable tort
upon the spouse who suffers bodily injury. Bowen v. Kil-Kare, Inc., 63 Ohio
St. 3d 84, 88 585 N.E.2d 384 (1992). While a spouse’s claim for loss of
consortium is separate and distinct, the non-injured spouse cannot recover
for loss of consortium is there is no cognizable claim under Ohio law that
would be available to the injured spouse. LeMaster v. Davis, 4th Dist. No.
95CA30, 1996 WL 174627 (Apr.10, 1996); See also, Gallimore v.
Children’s Hosp., 67 Ohio St.3d 244, 617 N.E.2d 1052 (1993). When the
trial court granted summary judgment to the defendants and effectively
dismissed all claims of Plaintiff Susan M. Allen, the trial court also correctly
ruled that Appellant Roderick Allen’s loss of consortium claim should be
dismissed. Pickaway App. No. 12CA10 27
CONCLUSION
{¶43} Upon our de novo review of the facts and circumstances, we
find that there were no genuine issues of material fact and all defendants
were entitled to summary judgment as a matter of law. For the foregoing
reasons, we overrule Appellants’ assignment of error and affirm the
judgment of the trial court.
JUDGMENT AFFIRMED Pickaway App. No. 12CA10 28
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellees recover of Appellants costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pickaway County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Abele, J., and Kline, J.: Concur in Judgment and Opinion.
For the Court,
BY: _____________________________ Matthew W. McFarland Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.