[Cite as Callentine v. Mill Invests., 2017-Ohio-8634.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: FRANCIS EUGENE CALLENTINE : Hon. Patricia A. Delaney, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellant : Hon. William B. Hoffman, J. : -vs- : : Case No. 2017 AP 06 0014 MILL INVESTMENTS, LLC, ET AL : : Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Tuscarawas County Court of Common Pleas, Case No. 2016 CT 06 0416
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 17, 2017
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
STEVEN BRIAN TIMOTHY YAHNER/EDWARD DARK 81 Maplecrest Street S.W. 3873 Cleveland Road North Canton, OH 44720 Wooster, OH 44691 [Cite as Callentine v. Mill Invests., 2017-Ohio-8634.]
Gwin, J.
{¶1} Appellant appeals the May 4, 2017 judgment entry of the Tuscarawas
County Court of Common Pleas granting appellees’ motion for summary judgment.
Facts & Procedural History
{¶2} On June 16, 2016, appellant Francis Callentine filed a complaint against
appellee Mill Investments, LLC, appellee Michael Kitchen (“Kitchen”), and William Walsh
(“Walsh”). Mill Investments leased the property located at 118 East First Street in
Uhrichsville to Joi and Cecil (Andy) Brown. Appellant alleged in his complaint that on
November 9, 2012, when he was an invitee at 118 East First Street, he tripped and fell
on an uneven porch and sidewalk. Appellant averred appellees were negligent by:
creating a dangerous, hazardous, and latent peril upon the premises; subjecting him to a
hidden danger and risk of injury known to appellees, but not reasonably discoverable by
appellant; failing to warn appellant of a hazard known to appellees; failing to exercise
reasonable care; and failing to maintain and keep the premises in good repair and free
from nuisance.
{¶3} Walsh filed a motion for summary judgment on October 11, 2016. Walsh
stated he had not been affiliated with Mill Investments since 2002, when he transferred
his entire ownership interest. The trial court granted summary judgment to Walsh on
November 2, 2016.
{¶4} Mill Investments and Kitchen filed a motion for summary judgment on
February 14, 2017. Appellees alleged two doctrines barred appellant’s negligence
complaint: the two-inch rule and the step-in-the-dark rule. Further, appellees argued
there was no evidence they had actual or constructive notice of the defect. Attached to Tuscarawas County, Case No. 2017 AP 06 0014 3
the motion for summary judgment were the depositions and attached exhibits of Joi
Brown, Cecil Brown, Kitchen, and appellant. Also attached to the motion for summary
judgment was the affidavit of Phyllis Paul (“Paul”). Paul averred she took the photographs
labelled Exhibits A and B, and she measured the deviation in height between the concrete
slabs. Further, that at no point did the deviation in height depicted in Exhibits A and B
equal or exceed two inches. The photographs show two concrete slabs and a tape
measure showing the deviation in height of the concrete slabs is less than two inches.
{¶5} Joi Brown stated in her deposition that she has lived at 118 East First Street
in Uhrichsville for approximately five years. She lived at the home on November 9, 2012
and had moved into the residence approximately six months prior. She is a lifelong friend
of appellant. Joi testified she was not home when appellant fell, but arrived home
immediately after he fell; appellant told her he was stepping down and fell. She confirmed
Exhibit J is a lease agreement she and her husband have with Mill Investments. Joi
testified she was not aware of any problems with the porch or walkway to cause her any
concern. She never made any complaints to appellees that there was any problem with
the porch or walkway, or that it was dangerous or defective. She never called appellees
regarding the walkway or porch, and neither did her husband. Joi denied that anyone
else had fallen at that location.
{¶6} Cecil Brown stated in his deposition that, prior to November 9, 2012,
appellant had been to the house once or twice before. On November 9, 2012, appellant
arrived at dusk. Cecil did not see appellant fall. Cecil stated no one, including him or his
wife, complained to appellees about the walkway. Cecil testified no one fell prior to Tuscarawas County, Case No. 2017 AP 06 0014 4
appellant in that area. However, down the way, a couple people fell by the front porch
because it was icy.
{¶7} In his deposition, Kitchen stated the lease indicates the landlord is
responsible for repairs. Thus, if a problem is not caused by normal wear and tear, it would
be the responsibility of Mill Investments to repair and problem and Mill Investments would
be responsible for the costs of the repair. Kitchen stated that before he leases a property,
he generally examines it to make sure it is in good condition. He walks through, makes
sure the fixtures (heating, cooling, electric, water) function property. Kitchen does this
examination of the property himself. Kitchen testified if there is a tenant living in a rental
property, he may drive past the property every few months, but would not go inside unless
there was a problem or complaint. Kitchen stated the back porch of the property at issue
looked like Exhibit G when he bought the property in 2011.
{¶8} When asked if the sidewalk looked like this with the height deviation prior to
November 9, 2012, Kitchen stated, “Yes. I mean I don’t – I would think so. I would
assume so; I don’t know.” Kitchen continued, “I’m sure I walked over it several times
without noticing there was a crack or elevation problem there. I am sure I walked over
before, during, and after that time.” Kitchen did not attempt to repair the sidewalk. Kitchen
testified that neither the Browns nor any previous tenant made a request of him to repair
the sidewalk. Prior to November 9, 2012, Kitchen had not been to the property since May
of 2012. Kitchen stated there have been no repairs made to the back porch since
November 9, 2012. As to the unevenness of the concrete, Kitchen testified he walked
past it, several tenants walked past it, it caused him no concerns, and he did not notice
the unevenness. Tuscarawas County, Case No. 2017 AP 06 0014 5
{¶9} Appellant testified during his deposition that he went to 118 East First Street
in Uhrichsville because his friend put in a new woodshop in his garage and wanted him
to see it. Appellant arrived at 4:00 p.m. or 5:00 p.m. in the evening, and it was daylight
when he arrived. Appellant stated the incident occurred, “a few hours after,”
approximately two or three hours after, although appellant did not know the exact time.
Appellant testified it was dark out when the incident occurred.
{¶10} When appellant arrived at the home, he got out of his car and walked up to
the porch via the steps and knocked on the back door. After Andy (what appellant called
Cecil Brown) answered the back door, they went back down the steps and straight to the
garage to look at Andy’s woodshop. After exiting the woodshop, appellant and Andy
walked back up onto the porch and went in the house, where Andy showed him around
and where Joi, Andy, and appellant sat and talked. Appellant knows he spent a couple
of hours there, as it was daylight when he arrived at the house and dark when he left.
Appellant does not think it was raining or snowing that day and he believes the sidewalk
was shoveled, but does not remember if there was snow on the ground. Appellant
testified he was not distracted by anything when he stepped down. Appellant stated the
cause of his fall was stepping into an uneven area.
{¶11} Appellant testified he exited the house via the same door he came in, which
was the back door. When he left the house, he stepped off the porch, stepped down,
rolled his ankle, and snapped his foot. Due to the pain, he jumped in the air and flipped,
coming down on his elbow, smashing his elbow into the sidewalk. Appellant stated that
as he was exiting the door, it was dark outside. He thinks there may have been a porch Tuscarawas County, Case No. 2017 AP 06 0014 6
light, but he does not know if it is was on when he left. However, even if it was on, it did
not illuminate the area where he was walking.
{¶12} Appellant stated he could see the porch, but there was a shadow over the
sidewalk. Appellant marked on Exhibit G where he was standing on the porch right before
he stepped down. Appellant does not remember what he was looking at when he stepped
down, although he thought it might be stained or marbleized. Appellant testified he had
no problem seeing the porch when he went into the house. However, he did not see the
step or the elevation as he exited the house because of the shadow. Appellant stated
the whole sidewalk was dark about from halfway back to the porch and was obscured
because of shadows. When asked, “had there been sufficient lighting would you have
been able to see the difference in elevation of the two abutting pieces of the sidewalk,”
appellant responded, “Yes, I would have never stepped there.” Appellant testified that
had he looked down and seen the difference in elevation, he would have stepped
somewhere else. However, he could not tell it was uneven.
{¶13} Appellant testified Joi Brown told him that both she and her son tripped over
the sidewalk. No one told appellant they complained to appellees about the porch or
sidewalk. Appellant has no idea how long this condition existed. Appellant also testified
he has no idea if the area where he fell violated any kind of building, health, housing, or
safety codes. Appellant spent the remainder of the deposition detailing his injuries and
treatment.
{¶14} Appellant filed a memorandum in opposition to appellees’ motion for
summary judgment on March 8, 2017. Appellant argued that while appellees did not have
actual notice of the defect, they should have known about the defect because Kitchen Tuscarawas County, Case No. 2017 AP 06 0014 7
inspected the property before November 9, 2012. Further, that a determination about
whether a condition is open and obvious is fact-specific. Finally, appellant conceded that
the elevation difference was less than two inches, but argued the difference was
“substantial” and the two-inch rule is not “negligence by ruler.”
{¶15} Appellees filed a reply to their motion for summary judgment on March 13,
2017.
{¶16} The trial court issued a judgment entry on May 4, 2017. The trial court found
as follows: appellant had been in the area of the porch and walkway several times prior
to his fall during the same visit; appellant was injured when he stepped off the porch onto
the walkway below where two pieces of uneven sidewalk met, with one portion elevated
higher than the other portion; there was no indication anyone complained about the porch
or walk to appellees or requested repairs prior to appellant’s fall; and appellant testified it
was dark and there was a shadow over the sidewalk at the time of his fall and thus he did
not see the rise in the sidewalk.
{¶17} The trial court found there was no evidence to suggest the uneven elevation
was more than an insubstantial imperfection. Further, that appellant presented no
evidence the area where he fell violated any building or safety codes. The trial court
found the condition of the walkway, including the darkness or shadow at the time of
appellant’s fall, was open and obvious. Additionally, that appellant was not distracted by
anything when he stepped off the porch, and there were no factors other than the
elevation of the sidewalk and the darkness that contributed to appellant’s fall. The trial
court found there were no attendant circumstances at the time of appellant’s fall to
preclude summary judgment. Tuscarawas County, Case No. 2017 AP 06 0014 8
{¶18} The trial court also specifically referenced appellant’s testimony that he
could not see clearly where he was stepping before he stepped off the porch and
testimony that if he had looked down and seen the difference in elevation, he would have
stepped somewhere else. The trial court found reasonable minds can only conclude
appellant’s negligence in stepping into darkness without further investigation as to what
the darkness or shadow might conceal was greater than any alleged negligence of
appellees.
{¶19} The trial court found appellees were entitled to judgment as a matter of law
and granted appellees’ motion for summary judgment.
{¶20} Appellant appeals the May 4, 2017 judgment entry of the Tuscarawas
County Court of Common Pleas and assigns the following as error:
{¶21} “I. THE TRIAL COURT ERRED IN FINDING THAT THERE IS NO
EVIDENCE IN THE RECORD TO SUGGEST THAT THE UNEVEN ELEVATION OF THE
RELEVANT SECTIONS OF THE SUBJECT SIDEWALK WAS MORE THAN AN
INSUBSTANTIAL IMPERFECTION.
{¶22} “II. THE TRIAL COURT ERRED IN FINDING THAT THE CONDITION OF
THE WALKWAY, INCLUDING THE DARKNESS OR SHADOW PRESENT AT THE TIME
OF PLAINTIFF’S FALL, WAS OPEN AND OBVIOUS.
{¶23} “III. THE TRIAL COURT ERRED IN FINDING THAT REASONABLE MINDS
COULD ONLY CONCLUDE THAT PLAINTIFF’S NEGLIGENCE WAS GREATER THAN
ANY ALLEGED NEGLIGENCE OF DEFENDANTS.” Tuscarawas County, Case No. 2017 AP 06 0014 9
Summary Judgment Standard
{¶24} Civil Rule 56(C) in reviewing a motion for summary judgment which
provides, in pertinent part:
Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in
the action, show that there is no genuine issue of 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 mostly strongly in the
party’s favor. A summary judgment, interlocutory in character, may be
rendered on the issue of liability alone although there is a genuine issue as
to the amount of damages.
{¶25} A trial court should not enter a summary judgment if it appears a material
fact is genuinely disputed, nor if, construing the allegations most favorably towards the
non-moving party, reasonable minds could draw different conclusions from the
undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311
(1981). The court may not resolve any ambiguities in the evidence presented. Inland
Refuse Transfer Co. v. Browning-Ferris Indus. of Ohio, Inc., 15 Ohio St.3d 321, 474 Tuscarawas County, Case No. 2017 AP 06 0014 10
N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the
applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733
N.E.2d 1186 (6th Dist. 1999).
{¶26} When reviewing a trial court’s decision to grant summary judgment, an
appellate court applies the same standard used by the trial court. Smiddy v. The Wedding
Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter
de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243.
{¶27} The party moving for summary judgment bears the initial burden of
informing the trial court of the basis of the motion and identifying the portions of the record
which demonstrate the absence of a genuine issue of fact on a material element of the
non-moving party’s claim. Drescher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996).
Once the moving party meets its initial burden, the burden shifts to the non-moving party
to set forth specific facts demonstrating a genuine issue of material fact does exist. Id.
The non-moving party may not rest upon the allegations and denials in the pleadings, but
instead must submit some evidentiary materials showing a genuine dispute over material
facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791 (12th Dist. 1991).
I.
{¶28} In his first assignment of error, appellant argues the trial court erred in
finding the “two-inch” rule or the “trivial imperfection rule” bars recovery in this case.
Appellant contends that, even though the elevation difference was less than two inches,
the difference was still “substantial” and the two-inch rule is not a bright-line test, but
depends on the circumstances. Tuscarawas County, Case No. 2017 AP 06 0014 11
{¶29} The Ohio Supreme Court has declined to hold property owners and
occupiers liable as a matter of law for injuries due to minor or trivial imperfections that
were not unreasonably dangerous, are commonly encountered, and to be expected. In
Kimball v. Cincinnati, 5 Ohio St.2d 60, 213 N.E.2d 734 (1953), the Ohio Supreme Court
held that a height variation in pavement levels less than two inches is a slight defect as a
matter of law that precludes a finding of negligence. In Helms v. American Legion, Inc.,
5 Ohio St.2d 60, 213 N.E.2d 734 (1966), the Ohio Supreme Court reaffirmed its holding
in Kimball and extended the two-inch rule to privately owned or occupied properties.
{¶30} In Cash v. Cincinnati, 66 Ohio St.2d 319, 421 N.E.2d 1275 (1981), the Ohio
Supreme Court again reviewed the two-inch rule. The Court clarified the two-inch rule
and stated courts must also consider any attendant circumstances in determining whether
liability exists for trivial defects. Thus, in Cash, the Ohio Supreme Court established that
a height difference of two inches or less is insubstantial as a matter of law, unless
attendant circumstances are shown to elevate the defect to an unreasonably dangerous
condition. Id.
{¶31} There is no precise definition of attendant circumstances. Mulcahy v. Best
Buy Stores, LP, 5th Dist. Delaware No. 13CAE060051, 2014-Ohio-1163. Attendant
circumstances are factors that contribute to a fall and are beyond the injured person’s
control. Id. The analysis of attendant circumstances also uses an objective test and the
court should not consider the particular actions of the parties in the case. Id. Attendant
circumstances do not include any circumstances existing at the moment of a fall, unless
the individual was distracted by an unusual circumstance created by the property owner.
Id. Tuscarawas County, Case No. 2017 AP 06 0014 12
{¶32} In this case, there is no dispute the elevation between the two pieces of
sidewalk was less than two inches. Appellant conceded in his brief in opposition to
appellees’ motion for summary judgment the elevation difference was less than two
inches. Further, appellant identified the elevation difference as the cause of his fall in
Exhibit G, which measured at under two inches (Exhibit A, Exhibit B, and Affidavit of
Phyllis Paul).
{¶33} While appellant is correct that the two-inch rule is not a “bright-line” test,
the other circumstances to consider that may elevate the defect to an unreasonably
dangerous condition are attendant circumstances. However, appellant did not testify to
any attendant circumstances and did not direct the trial court or this Court to any attendant
circumstances. Rather, appellant testified it was not raining or snowing, he had no
problem seeing the step when he entered the house, and he was not distracted by
anything when he fell. Accordingly, we find reasonable minds could only conclude the
defect was trivial and was not rendered a substantial one because of any attendant
circumstances. See Carpenter v. Mount Vernon Gateway, Ltd., 5th Dist. Knox No.
13CA6, 2014-Ohio-465 (granting summary judgment based on the trivial defect doctrine
when the defect was 1.5 inches deep and there was nothing diverting the plaintiff’s
attention when she walked); Galo v. Carron Asphalt Paving, Inc., 9th Dist. Lorain No.
08CA009374, 2008-Ohio-5001 (finding as a matter of law a 1.5 inch difference in height
was trivial when the plaintiff testified if she had looked down, she would have seen the
ridge). Tuscarawas County, Case No. 2017 AP 06 0014 13
{¶34} Appellant’s first assignment of error is overruled. The trial court properly
applied the trivial defect rule to bar appellant’s negligence claim, as no duty exists where
an alleged defect is minor or insubstantial. Id.
II. & III.
{¶35} In his second and third assignments of error, appellant contends the trial
court erred in finding the condition of the walkway, including the shadow or darkness, was
open and obvious and in finding his negligence was greater than that of appellees.
However, in the body of his brief addressing these assignments of error, appellant argues
reasonable minds may find appellees breached their duty to appellant as an invitee.
Specifically, that appellees should have known of the elevated concrete slab and that the
question of open and obvious is fact-specific.
{¶36} The trial court applied the step-in-the dark rule in conjunction with the open
and obvious doctrine in this case and found the darkness of the walkway was open and
obvious, and that appellant’s negligence in stepping into darkness without further
investigation as to what the darkness or shadow might conceal was greater than any
alleged negligence of appellees. Appellant does not specifically address the step-in-the-
dark rule in his brief, but does argue the open and obvious doctrine is fact-specific and
should be determined on a case-by-case basis.
{¶37} 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. Mulcahy v. Best Buy Stores, Inc., 5th Dist. Delaware No.
14CAE060051, 2014-Ohio-1163. The owner or occupier of the premises owes an invitee
a duty to exercise ordinary care to maintain its premises in a reasonably safe condition, Tuscarawas County, Case No. 2017 AP 06 0014 14
such that an invitee will not unreasonably or unnecessarily be exposed to danger.
Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 480 N.E.2d 474 (1985). A
premises owner must warn its invitees of latent or concealed dangers if the owner knows
or has reason to know of the hidden dangers. Jackson v. Kings Island, 58 Ohio St.2d
357, 390 N.E.2d 810 (1979).
{¶38} However, a premises owner is not an insurer of its invitees’ safety against
all forms of accidents that may happen. Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio
St.3d 203, 480 N.E.2d 474 (1985). Under Ohio law, a 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 that 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, 233 N.E.2d 589
(1968). In Armstrong v. Best Buy Co., Inc., the Ohio Supreme Court found that a premises
owner owes no duty to persons entering the premises regarding dangers that are open
and obvious. 99 Ohio St.3d 79, 788 N.E.2d 1088 (2003). The rationale of this 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, 597 N.E.2d 504 (1992).
{¶39} When considering whether a condition is open and obvious, the court must
consider the nature of the condition itself, not the plaintiff’s conduct in encountering the
condition. Jacobsen v. Coon Restoration & Sealants, Inc., 5th Dist. Stark No. 2011-CA—
00001, 2011-Ohio-3563. However, the dangerous condition at issue does not actually
have to be observed by the plaintiff to be an open and obvious condition under the law. Tuscarawas County, Case No. 2017 AP 06 0014 15
Kraft v. Johnny Biggs Mansfield LLC, 5th Dist. Richland No. 2012 CA 0068, 2012-Ohio-
5502. The determinative question is whether the condition is observable. Id. The open
and obvious doctrine applies to common law premises liability even when it involves
claims against a landlord. Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, 857
N.E.2d 1195. When applicable, the open and obvious doctrine obviates the duty to warn
and acts as a complete bar to any negligence claims. Bovetsky v. Marc Glassman, Inc.,
5th Dist. Stark No. 2016CA00122, 2016-Ohio-7863.
{¶40} In most situations, whether a danger is open and obvious presents a
question of law. Aycock v. Sandy Valley Church of God, 5th Dist. Tuscarawas No. 2006
AP 09 0054, 2008-Ohio-105. Though the determination of the existence of and the
obviousness of a danger alleged to exist requires a review of the facts of the case, where
only one conclusion can be drawn from the established facts, the issue of whether a risk
was open and obvious may be decided by a court as a matter of law. Id.
{¶41} An exception to the open and obvious doctrine is the existence of attendant
circumstances. Id. For this exception to apply, an attendant circumstance must divert
the attention of the injured party, significantly enhance the danger of the defect, and
contribute to the injury. Bovetsky v. Marc Glassman, Inc., 5th Dist. Stark No.
2016CA00122, 2016-Ohio-7863. However, as detailed above, appellant did not testify to
any attendant circumstances and did not direct the trial court or this Court to any attendant
circumstances. Rather, appellant testified it was not raining or snowing, he had no
problem seeing the step when he entered the house, and he was not distracted by
anything when he fell. Accordingly, there was nothing to divert the attention of appellant,
significantly enhance the danger of the defect, or contribute to the injury. Tuscarawas County, Case No. 2017 AP 06 0014 16
{¶42} Appellant cites two cases in support of his argument that the open and
obvious doctrine is an extremely factual inquiry and should not be decided via summary
judgment. However, we find the cases cited by appellant distinguishable from this case.
{¶43} In Carpenter v. Marc Glassman, Inc., the Eighth District found reasonable
minds could differ on whether a display platform in a store was open and obvious and
whether the plaintiff knew of its danger or may reasonably have been expected to discover
it and protect against it, given that the platform she tripped on was movable, filled with
merchandise, and given that the plaintiff’s view had been blocked by a movable display
rack filled with merchandise. 124 Ohio App.3d 236, 705 N.E.2d 1281 (1997). In Klauss
v. Marc Glassman, Inc., the Eighth District found reasonable minds could differ as to
whether the hazard was open and obvious when the view of the pallet plaintiff tripped on
was obscured by a bench and merchandise. 8th Dist. Cuyahoga No. 84799, 2005-Ohio-
1306. In this case, there was not a movable display rack or bench/merchandise blocking
the hazard. Rather, appellant testified he could have seen the elevation if there had been
sufficient lighting and that he saw the elevation when he previously traversed the porch
hours earlier.
{¶44} We find this case is analogous to those cases finding no genuine issue of
material fact exists, particularly the case of Tomasko v. Sohnly, 5th Dist. Delaware No.
15-CAE-10-0078, 2016-Ohio-2698, in which we found summary judgment appropriate
where the plaintiff was aware it was dark, but she went onto the balcony anyway and
testified if she had stepped out onto the balcony in daylight, she would have appreciated
the height of the step. See also, Aycock v. Sandy Valley Church of God, 5th Dist.
Tuscarawas No. 2006 AP 09 0054, 2008-Ohio-105 (finding no genuine issue of material Tuscarawas County, Case No. 2017 AP 06 0014 17
fact exists as to whether the elevation of the porch was open and obvious when the
plaintiff testified he observed the height elevation between the porch and the cars passing
by); Bovetsky v. Marc Glassman, Inc., 5th Dist. Stark No. 2016CA00122, 2016-Ohio-7863
(holding reasonable minds could only conclude the height difference between the
sidewalk and parking lot was open and obvious when the plaintiff testified the elevation
was noticeable if she had looked).
{¶45} In conjunction with the open and obvious rule, the trial court also applied
the step-in-the-dark rule. Appellant alleges the darkness contributed to his fall. This
Court has previously held that “darkness is always a warning of danger, and may not be
disregarded.” Aycock v. Sandy Valley Church of God, 5th Dist. Tuscarawas No. 2006 AP
09 0054, 2008-Ohio-105 (finding the argument that the porch was dimly lit, making the
elevation unperceivable, to be unpersuasive). The step-in-the dark-rule holds generally
that one who, from a lighted area, steps into darkness without “knowledge, information,
or investigation as to what darkness might conceal, is guilty of contributory negligence as
a matter of law.” Tomasko v. Sohnly, 5th Dist. Delaware No. 15-CAE-10-0078, 2016-
Ohio-2698, quoting Hissong v. Miller, 186 Ohio App.3d 345, 2010-Ohio-961, 927 N.E.2d
1161 (2nd Dist.); Posin v. A.B.C. Motor Court Hotel, Inc., 45 Ohio St.2d 271, 344 N.E.2d
334 (1976); Jeswald v. Hutt, 15 Ohio St.2d 224, 239 N.E.2d 37 (1968).
{¶46} The rationale behind the rule is “grounded in the idea that darkness is
nature’s own warning to arouse the natural instinct of self-preservation.” Id. Thus,
because “darkness is a warning, for one’s own protection, it may not be disregarded and
if one does unreasonably disregard the darkness, she may be precluded from recovering
damages for resulting injuries.” Id. Such a disregard of darkness may preclude the Tuscarawas County, Case No. 2017 AP 06 0014 18
recovery of damages for personal injuries when the plaintiff is chargeable with negligence
which was a direct and contributing cause of her misfortune. Jeswald v. Hutt, 15 Ohio
St.2d 224, 239 N.E.2d 37 (1968).
{¶47} The trial court found appellant was contributorily negligent when he
intentionally stepped from the lighted area to the area in darkness and concluded this
negligence was a bar to recovery and that the condition of the walkway, including the
darkness or shadow, was open and obvious. We agree with the trial court.
{¶48} Appellant stated he arrived when it was daylight. However, he testified the
incident occurred when it was dark, it was dark when he left the house, and, when he was
exiting the door, it was dark outside. Appellant testified there may have been a porch
light at the home. However, he was not sure it was on when he left the house. Further,
even if it was on when he left the house, it did not illuminate the area where he was
walking.
{¶49} Appellant had the opportunity to view the elevation difference in ample light
several times, as he first navigated the back porch when he arrived and knocked on the
door, again when he went into the garage with Mr. Brown, and a third time when they
returned to the house via the back porch. Appellant stated he had no problem seeing the
porch and the elevation difference when he went into the house or when he went to the
door the first time prior to going to the garage. Appellant testified he did not see the
elevation when he left the house because of the shadow and that the whole sidewalk was
dark and obscured from halfway back the porch.
{¶50} When appellant was asked, “had you looked down and seen the difference
in elevation, would you have stepped there, or stepped somewhere else,” he responded, Tuscarawas County, Case No. 2017 AP 06 0014 19
“I would have stepped somewhere else.” Finally, when appellant was asked, “had there
been sufficient lighting out there would you have been able to see the difference in
elevation of the two abutting pieces of the sidewalk,” appellant testified, “Yes, I would
never have stepped there.”
{¶51} Accordingly, we find reasonable minds could only conclude appellees owed
no duty to warn appellant pursuant to the open and obvious doctrine and appellant was
contributorily negligent when he intentionally stepped from the lighted area to the area in
darkness. Thus, appellant’s claims are barred by the open and obvious doctrine, in
conjunction with the step-in-the-dark doctrine.
{¶52} Appellant spends the remaining portion of his brief arguing that there is a
genuine issue of material fact as to whether appellees breached a duty owed to appellant
because the record establishes appellees should have known of the concrete slab.
Appellant contends that since Kitchen inspected the property prior to November 9, 2012,
he should have known about the hidden danger posed by the elevation difference.
However, as detailed above, both the trivial imperfection rule and the step-in-the-dark rule
in conjunction with the open and obvious rule bar appellant’s recovery as appellees owed
no duty to warn appellant of the elevation.
{¶53} Further, under both R.C. 5321.04 (“Landlord Obligations”) and common law
negligence, a landlord is excused from liability “if he neither knew nor should have known
of the factual circumstances that caused the violation.” Sikora v. Wenzel, 88 Ohio St.3d
493, 727 N.E.2d 1277 (2000). In the absence of actual or constructive knowledge, a
landlord is not liable. Id. Tuscarawas County, Case No. 2017 AP 06 0014 20
{¶54} It is undisputed that appellees did not have actual knowledge of the height
deviation. Appellant testified no one told him they complained to appellees about the
porch or sidewalk. Mrs. Brown and Mr. Brown testified they did not complain to appellees
about the porch or the sidewalk. Kitchen testified that neither the Browns nor any previous
tenant made a request of him to repair the sidewalk.
{¶55} As such, appellant must demonstrative constructive knowledge in order to
succeed on his claim. In order to charge appellees with constructive knowledge, “it must
appear that such nuisance exited in such a manner that it could or should have been
discovered, that it existed for a sufficient length of time to have been discovered, and that
if it had been discovered it would have created a reasonable apprehension of a potential
danger.” Beebe v. Toledo, 168 Ohio St. 203, 151 N.E.2d 738 (1958). In this case,
appellant testified he had no idea how long the alleged defect existed. Kitchen testified
he and tenants walked over the sidewalk several times without noticing an elevation
problem. Further, that when he walked past it, it caused him no concerns. Appellant did
not present any testimony or evidence to dispute Kitchen’s assessment of the elevation
or any evidence as to how long the unevenness existed. Accordingly, we find there is no
genuine issue of material fact as to whether appellees had constructive notice of the
alleged hazard. See Maynard v. Winters, 5th Dist. Tuscarawas No. 2012 AP 05 0035,
2012-Ohio-6286, Au v. Waldman, 5th Dist. Richland No. 2010 CA 112, 2011-Ohio-2233.
Appellant’s second and third assignments of error are overruled.
{¶56} Based on the foregoing, appellant’s assignments of errors are overruled. Tuscarawas County, Case No. 2017 AP 06 0014 21
{¶57} The May 4, 2017 judgment entry of the Tuscarawas County Court of
Common Pleas is affirmed.
By Gwin, J.,
Delaney P.J., and
Hoffman, J., concur