[Cite as Caldwell v. Marc's Deeper Discount Drug Stores, AKA Marc Glassman, Inc., 2018-Ohio-3483.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
LAURA CALDWELL, ET AL. JUDGES: Hon. W. Scott Gwin, P.J. Plaintiffs-Appellants Hon. William B. Hoffman, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 2018CA00011 MARC'S DEEPER DISCOUNT DRUG STORES, AKA MARC GLASSMAN INC. OPINION
Defendant-Appellee
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas Court, Case No. 2017CV00737
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 27, 2018
APPEARANCES:
For Plaintiffs-Appellants For Defendant-Appellee
CHRISTOPHER L. PARKER JACK COOPER MARC N. CHENOWITH Day Ketterer Ltd. RODERICK LINTON BELFANCE, LLP 200 Market Ave, North - Suite 300 50 S. Main Street, 10th Floor Canton, Ohio 44702 Akron, Ohio 44308-1828
For Plaintiff- Appellants
JOHN SCAVELLI City of Stow Law Department 3804 Fulton Drive NW Canton, Oh 44718 Stark County, Case No. 2018CA00011 2
Hoffman, J.
{¶1} Plaintiffs-appellants Laura Caldwell, et al. appeal the January 4, 2018
Judgment Entry entered by the Stark County Court of Common Pleas, which granted
summary judgment in favor of defendant-appellee Marc’s Deeper Discount Drug Stores
aka Marc Glassman, Inc. (“Marc’s”).
STATEMENT OF THE FACTS AND CASE
{¶2} On the afternoon of April 4, 2014, Appellant Laura Caldwell (“Caldwell”)
visited Marc’s West Tuscarawas Street, Canton, Ohio location, to purchase Easter
supplies. The following events were captured via Marc’s surveillance camera:
TIME EVENT
15:57:15 Caldwell approaches the checkout line.
15:58:23 The cashier places Caldwell’s purchases into two
bags, except for a boxed flag which is not bagged.
15:58:30 Caldwell pays the cashier for her purchases.
15:59:00 Caldwell places her purchases into a standard 4-wheel
shopping cart.
15:59:25 Caldwell pushes the cart away from the checkout line,
veering left as she does so, which provides a view of the floor mat.
15:59:30 Caldwell stops the cart on the floor mat and removes
her purchases.
15:59:40 Caldwell takes four steps forward, walking over the
floor mat, and returns the shopping cart. Stark County, Case No. 2018CA00011 3
15:59:45 Caldwell turns toward the floor mat to exit the store.
15:59:46 As Caldwell takes two steps in the direction of the floor
mat, her right foot comes to rest partially on the mat. Caldwell is looking
straight ahead.
15:59:48 Caldwell takes another step and her left foot catches
on a buckle in the floor mat, causing her to trip and ultimately fall.
{¶3} As a result of the fall, Caldwell suffered injuries to her ribs, shoulders, and
head. On April 5, 2017, Caldwell and her husband, Appellant Wes Caldwell, filed a
complaint against Marc’s, asserting claims of negligence and loss of consortium.1 Marc’s
filed an answer which included a number of affirmative defenses. Marc’s conducted
Caldwell’s deposition on August 1, 2016.2
{¶4} On November 13, 2017, Marc’s moved for summary judgment, arguing it
owed no duty to Caldwell because the alleged hazard was open and obvious, and there
were no attendant circumstances to negate the application of the open and obvious
doctrine. Appellants filed a response in opposition, countering material issues of fact
exist as to whether the buckle in the floor mat was open and obvious and whether
attendant circumstances existed which enhanced the danger and contributed to
Caldwell’s injury.
{¶5} Via Judgment Entry filed January 4, 2018, the trial court granted judgment
in favor of Marc’s. The trial court found the floor mat was an open and obvious condition
1 This case was previously filed and voluntarily dismissed without prejudice under Stark County Common Pleas No. 2016-CV-00715. 2 Caldwell’s deposition was conducted while the original case was opened. Stark County, Case No. 2018CA00011 4
about which Marc’s had no duty to warn or protect Caldwell. The trial court further found
there were no attendant circumstances sufficient to overcome the application of the open
and obvious doctrine.
{¶6} It is from this judgment entry Appellants appeal, raising the following
assignments of error:
I. THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT IN FAVOR OF DEFENDANT BY FINDING THAT THE RUG
WAS AN OPEN AND OBVIOUS HAZARD.
II. THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT IN FAVOR OF DEFENDANT BY FINDING THAT THERE
WERE NO ATTENDANT CIRCUMSTANCES THAT OVERCAME THE
APPLICATION OF THE OPEN AND OBVIOUS DOCTRINE.
STANDARD OF REVIEW
{¶7} Summary judgment proceedings present the appellate court with the unique
opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v.
The Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). As such, this
Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co., 77
Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
{¶8} Civ.R. 56 provides summary judgment may be granted only after the trial
court determines: 1) no genuine issues as to any material fact remain to be litigated; 2)
the moving party is entitled to judgment as a matter of law; and 3) it appears from the Stark County, Case No. 2018CA00011 5
evidence that reasonable minds can come to but one conclusion and viewing such
evidence most strongly in favor of the party against whom the motion for summary
judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc.,
50 Ohio St.2d 317, 364 N.E.2d 267 (1977).
{¶9} It is well established the party seeking summary judgment bears the burden
of demonstrating that no issues of material fact exist for trial. Celotex Corp. v. Catrett, 477
U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1987). The standard for granting
summary judgment is delineated in Dresher v. Burt, 75 Ohio St.3d 280 at 293, 662 N.E.2d
264 (1996): “ * * * a party seeking summary judgment, on the ground that the nonmoving
party cannot prove its case, bears the initial burden of informing the trial court of the basis
for the motion, and identifying those portions of the record that demonstrate the absence
of a genuine issue of material fact on the essential element(s) of the nonmoving party's
claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by
making a conclusory assertion the nonmoving party has no evidence to prove its case.
Rather, the moving party must be able to specifically point to some evidence of the type
listed in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has no
evidence to support the nonmoving party's claims. If the moving party fails to satisfy its
initial burden, the motion for summary judgment must be denied. However, if the moving
party has satisfied its initial burden, the nonmoving party then has a reciprocal burden
outlined in Civ.R. 56(E) to set forth specific facts showing there is a genuine issue for trial
and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be
entered against the nonmoving party.” The record on summary judgment must be viewed Stark County, Case No. 2018CA00011 6
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[Cite as Caldwell v. Marc's Deeper Discount Drug Stores, AKA Marc Glassman, Inc., 2018-Ohio-3483.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
LAURA CALDWELL, ET AL. JUDGES: Hon. W. Scott Gwin, P.J. Plaintiffs-Appellants Hon. William B. Hoffman, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 2018CA00011 MARC'S DEEPER DISCOUNT DRUG STORES, AKA MARC GLASSMAN INC. OPINION
Defendant-Appellee
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas Court, Case No. 2017CV00737
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 27, 2018
APPEARANCES:
For Plaintiffs-Appellants For Defendant-Appellee
CHRISTOPHER L. PARKER JACK COOPER MARC N. CHENOWITH Day Ketterer Ltd. RODERICK LINTON BELFANCE, LLP 200 Market Ave, North - Suite 300 50 S. Main Street, 10th Floor Canton, Ohio 44702 Akron, Ohio 44308-1828
For Plaintiff- Appellants
JOHN SCAVELLI City of Stow Law Department 3804 Fulton Drive NW Canton, Oh 44718 Stark County, Case No. 2018CA00011 2
Hoffman, J.
{¶1} Plaintiffs-appellants Laura Caldwell, et al. appeal the January 4, 2018
Judgment Entry entered by the Stark County Court of Common Pleas, which granted
summary judgment in favor of defendant-appellee Marc’s Deeper Discount Drug Stores
aka Marc Glassman, Inc. (“Marc’s”).
STATEMENT OF THE FACTS AND CASE
{¶2} On the afternoon of April 4, 2014, Appellant Laura Caldwell (“Caldwell”)
visited Marc’s West Tuscarawas Street, Canton, Ohio location, to purchase Easter
supplies. The following events were captured via Marc’s surveillance camera:
TIME EVENT
15:57:15 Caldwell approaches the checkout line.
15:58:23 The cashier places Caldwell’s purchases into two
bags, except for a boxed flag which is not bagged.
15:58:30 Caldwell pays the cashier for her purchases.
15:59:00 Caldwell places her purchases into a standard 4-wheel
shopping cart.
15:59:25 Caldwell pushes the cart away from the checkout line,
veering left as she does so, which provides a view of the floor mat.
15:59:30 Caldwell stops the cart on the floor mat and removes
her purchases.
15:59:40 Caldwell takes four steps forward, walking over the
floor mat, and returns the shopping cart. Stark County, Case No. 2018CA00011 3
15:59:45 Caldwell turns toward the floor mat to exit the store.
15:59:46 As Caldwell takes two steps in the direction of the floor
mat, her right foot comes to rest partially on the mat. Caldwell is looking
straight ahead.
15:59:48 Caldwell takes another step and her left foot catches
on a buckle in the floor mat, causing her to trip and ultimately fall.
{¶3} As a result of the fall, Caldwell suffered injuries to her ribs, shoulders, and
head. On April 5, 2017, Caldwell and her husband, Appellant Wes Caldwell, filed a
complaint against Marc’s, asserting claims of negligence and loss of consortium.1 Marc’s
filed an answer which included a number of affirmative defenses. Marc’s conducted
Caldwell’s deposition on August 1, 2016.2
{¶4} On November 13, 2017, Marc’s moved for summary judgment, arguing it
owed no duty to Caldwell because the alleged hazard was open and obvious, and there
were no attendant circumstances to negate the application of the open and obvious
doctrine. Appellants filed a response in opposition, countering material issues of fact
exist as to whether the buckle in the floor mat was open and obvious and whether
attendant circumstances existed which enhanced the danger and contributed to
Caldwell’s injury.
{¶5} Via Judgment Entry filed January 4, 2018, the trial court granted judgment
in favor of Marc’s. The trial court found the floor mat was an open and obvious condition
1 This case was previously filed and voluntarily dismissed without prejudice under Stark County Common Pleas No. 2016-CV-00715. 2 Caldwell’s deposition was conducted while the original case was opened. Stark County, Case No. 2018CA00011 4
about which Marc’s had no duty to warn or protect Caldwell. The trial court further found
there were no attendant circumstances sufficient to overcome the application of the open
and obvious doctrine.
{¶6} It is from this judgment entry Appellants appeal, raising the following
assignments of error:
I. THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT IN FAVOR OF DEFENDANT BY FINDING THAT THE RUG
WAS AN OPEN AND OBVIOUS HAZARD.
II. THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT IN FAVOR OF DEFENDANT BY FINDING THAT THERE
WERE NO ATTENDANT CIRCUMSTANCES THAT OVERCAME THE
APPLICATION OF THE OPEN AND OBVIOUS DOCTRINE.
STANDARD OF REVIEW
{¶7} Summary judgment proceedings present the appellate court with the unique
opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v.
The Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). As such, this
Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co., 77
Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
{¶8} Civ.R. 56 provides summary judgment may be granted only after the trial
court determines: 1) no genuine issues as to any material fact remain to be litigated; 2)
the moving party is entitled to judgment as a matter of law; and 3) it appears from the Stark County, Case No. 2018CA00011 5
evidence that reasonable minds can come to but one conclusion and viewing such
evidence most strongly in favor of the party against whom the motion for summary
judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc.,
50 Ohio St.2d 317, 364 N.E.2d 267 (1977).
{¶9} It is well established the party seeking summary judgment bears the burden
of demonstrating that no issues of material fact exist for trial. Celotex Corp. v. Catrett, 477
U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1987). The standard for granting
summary judgment is delineated in Dresher v. Burt, 75 Ohio St.3d 280 at 293, 662 N.E.2d
264 (1996): “ * * * a party seeking summary judgment, on the ground that the nonmoving
party cannot prove its case, bears the initial burden of informing the trial court of the basis
for the motion, and identifying those portions of the record that demonstrate the absence
of a genuine issue of material fact on the essential element(s) of the nonmoving party's
claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by
making a conclusory assertion the nonmoving party has no evidence to prove its case.
Rather, the moving party must be able to specifically point to some evidence of the type
listed in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has no
evidence to support the nonmoving party's claims. If the moving party fails to satisfy its
initial burden, the motion for summary judgment must be denied. However, if the moving
party has satisfied its initial burden, the nonmoving party then has a reciprocal burden
outlined in Civ.R. 56(E) to set forth specific facts showing there is a genuine issue for trial
and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be
entered against the nonmoving party.” The record on summary judgment must be viewed Stark County, Case No. 2018CA00011 6
in the light most favorable to the opposing party. Williams v. First United Church of Christ,
37 Ohio St.2d 150, 309 N.E.2d 924 (1974).
I, II.
{¶10} In order to establish a claim for negligence, a plaintiff must show: (1) a
duty on the part of defendant to protect the plaintiff from injury; (2) a breach of that duty;
and (3) an injury proximately resulting from the breach. Jeffers v. Olexo, 43 Ohio St.3d
140, 142, 539 N.E.2d 614 (1989).
{¶11} In a premises liability case, the relationship between the owner or occupier
of the premises and the injured party determines the duty owed. Gladon v. Greater
Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315, 1996–Ohio–137, 662 N.E.2d
287; Shump v. First Continental–Robinwood Assocs., 71 Ohio St.3d 414, 417, 644 N.E.2d
291 (1994). Ohio adheres to the common-law classifications of invitee, licensee, and
trespasser in cases of premises liability. Shump, supra; Boydston v. Norfolk S. Corp., 73
Ohio App.3d 727, 733, 598 N.E.2d 171, 175 (4th Dist.1991).
{¶12} The parties do not dispute Caldwell was a business invitee on April 4, 2014,
when she entered the Marc’s Store in Canton, Ohio. An invitee is defined as a person
who rightfully enters and remains on the premises of another at the express or implied
invitation of the owner and for a purpose beneficial to the owner. Broka v. Cornell's IGA
Foodliner Inc., 5th Dist. No. 12CA100, 2013–Ohio–2506, ¶ 20 citing Gladon, supra at
315.
{¶13} The business owner is not an insurer of the customer's safety, but the
business owner does owe the business invitee a duty of ordinary care to maintain the
premises in a reasonably safe condition and to warn of hidden dangers. However, a Stark County, Case No. 2018CA00011 7
business owner owes no duty to protect an invitee from dangers that are known to the
invitee or are so obvious and apparent to the invitee he or she may be reasonably
expected to discover them and protect him or her against them. Sidle v. Humphrey, 13
Ohio St.2d 45, 48, 233 N.E.2d 589 (1968). In other words, a premises owner owes no
duty to persons entering the premises regarding dangers which are open and obvious.
Armstrong v. Best Buy Company, Inc., 99 Ohio St.3d 79, 2003–Ohio–2573, 788 N.E.2d
1088, paragraph 5 of the syllabus (Citation omitted.) The rationale of the open and
obvious doctrine is that the open and obvious nature of the hazard itself serves as a
warning, so that owners reasonably may expect their invitees to discover the hazard and
take appropriate measures to protect themselves against it. Simmers v. Bentley Constr.
Co., 64 Ohio St.3d 642, 644, 597 N.E.2d 504 (1992).
{¶14} During her deposition, Caldwell testified:
Q. And do you remember walking across the rug before you
tripped?
A. No.
Q. Do you remember whether there was anything wrong with the
rug?
Q. Do you remember whether you walked across the rug coming
into the store?
A. No. Stark County, Case No. 2018CA00011 8
Q. Do you remember the color of the floor that was under the
Q. Was the rug something you could have seen had you looked
down?
A. I would imagine so.
Q. And you’ve been in stores before that have rugs on the floor
or mats, correct?
A. Correct.
Q. It’s not unusual for a mat to be on the floor, correct?
Deposition of Laura Caldwell at 23-24.
{¶15} As she viewed the surveillance video, Caldwell testified as follows:
Q. The rug is very easy to see in contrast to the floor, right?
A. Oh, yes.
Q. What color would you describe that floor to be?
A. Tan.
Q. Okay. It’s a light color would you agree?
A. Yes. Stark County, Case No. 2018CA00011 9
Q. Okay. I’m going to start the tape back, the video back up, and
here you are – okay. Now, here, if you would have looked down there you
could have seen the rug, would you agree with that?
A. Yes.
Q. Okay. And this is almost before you get to it, am I right?
***
Q. And it appears – well, can you tell me what it looks like
happened, what made you fall?
A. Looks like my foot got caught under the rug.
Q. * * * I want to ask you as you’re leaving whether the rug is
visible to you as you leave the checkout aisle, whether it is visible to you
where you were standing there* * *? * * * Certainly the rug is visible to you
from there, would you agree with that?
A. Yes, but I’m not looking down.
Q. * * * Had you been looking at the rug you could have seen it
from there, correct?
Q. Okay. And here had you looked down, * * * while you’re on the
rug, you could have seen that there was a rug there had you looked down,
correct?
*** Stark County, Case No. 2018CA00011 10
Q. * * * Do you recall whether there was anything defective or
wrong with the rug or whether it was out of place?
A. No. I never even paid attention to it.
Q. All right. As we look here, do you see anything wrong with the
A. There’s that hump.
Q. Okay. Do you think that’s where you fell?
Q. And that hump is clearly visible from this camera angle, is it
not?
Q. And clearly visible, had you looked down you would have
been able to see that hump, correct?
Id. at 35-37, 37-38.
{¶16} By her own testimony, Caldwell established the buckle in the floor mat was
readily observable if she had looked. The issue is not whether Marc's could have taken
additional precautions to warn of the buckle in the floor mat, but whether a reasonable
person under the circumstances would have observed the condition. See, e.g., Knight v.
Hartville Hardware, Inc., Stark App. No.2015CA00121, 2016–Ohio–1074. Under these
circumstances, we agree with the trial court’s finding reasonable minds could only
conclude the buckle in the floor mat was open and obvious. Stark County, Case No. 2018CA00011 11
{¶17} Nonetheless, attendant circumstances can create an exception to the open
and obvious doctrine and render summary judgment inappropriate. Johnson v. Regal
Cinemas, Inc., 8th Dist. Cuyahoga No. 93775, 2010–Ohio–1761, 2010 WL 1611010, ¶
23. An “attendant circumstance” is “any significant distraction that would divert the
attention of a reasonable person in the same situation and thereby reduce the amount of
care an ordinary person would exercise to avoid an otherwise open and obvious hazard.”
Haller v. Meijer, Inc., 10th Dist. Franklin No. 11AP–290, 2012–Ohio–670, ¶ 10.
{¶18} For this exception to apply, “[a]n attendant circumstance must divert the
attention of the injured party, significantly enhance the danger of the defect, and
contribute to the injury.” Forste v. Oakview Constr., Inc., 12th Dist. Warren No. CA2009–
05–054, 2009–Ohio–5516, 2009 WL 3350450, ¶ 22; Isaacs v. Meijer, Inc., 12th Dist.
Clermont No. CA2005–10–098, 2006–Ohio–1439, 2006 WL 766692, ¶ 16. Attendant
circumstances may include such things as the time of day, lack of familiarity with the route
taken, and lighting conditions. Hart v. Dockside Townhomes, Ltd., 12th Dist. Butler No.
CA2000–11–222, 2001 WL 649763, *2 (June 11, 2001). Further, an attendant
circumstance is a circumstance which contributes to the fall and is beyond the control of
the injured party. Backus v. Giant Eagle, Inc. (1996), 115 Ohio App.3d 155, 158, 684
N.E.2d 1273.
{¶19} In their response to Marc’s motion for summary judgment, Appellants
argued the design of the foyer at the West Tuscarawas Street store distracted Caldwell
from observing the buckle in the floor mat as she was trying to navigate around the area.
In their Brief to this Court, Appellants claim the shopping cart Caldwell was pushing and
the packages she was carrying obstructed her view of the buckle in the floor mat. Stark County, Case No. 2018CA00011 12
Appellants did not raise the issue of the shopping cart and packages as an attendant
circumstance in their response to Marc’s motion for summary judgment and, conversely,
do not claim error in the trial court’s finding the design of the foyer was not an attendant
circumstance in their brief to this Court.
{¶20} This Court's “role on appeal is to review the trial court's decision and
determine whether it is supported by the record.” Allen v. Bennett, 9th Dist. Summit Nos.
23570, 23573, 23576, 2007-Ohio-5411, 2007 WL 2935879, ¶ 21. Accordingly, “[b]ecause
this Court acts as a reviewing court, it should not consider for the first time on appeal
issues that the trial court did not decide.” Id. “This applies regardless of the fact that this
Court's review of an award of summary judgment is de novo.” Montville Lakes Cluster
Homeowners Assoc. Phase One v. Montville Lakes Homeowners Assoc., 9th Dist.
Medina No. 16CA0082-M, 2017-Ohio-7920, 2017 WL 4334343, ¶ 17. Accordingly, we
will not address whether the shopping cart and packages were an attendant
circumstance. Furthermore, because Appellants did not assign as error the trial court’s
finding the design of the foyer was not an attendant circumstance, we need not review
the finding.
{¶21} Based upon the foregoing, we find the trial court did not err in failing to find
attendant circumstances existed to remove this case from application of the open and
obvious doctrine.
{¶22} Appellants’ first and second assignments of error are overruled. Stark County, Case No. 2018CA00011 13
{¶23} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Wise, Earle, J. concur