[Cite as George v. Kroger Co., 2013-Ohio-2929.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
BARBARA GEORGE, et al. : : Appellate Case No. 25552 Plaintiff-Appellant : : Trial Court Case No. 2011-CV-6064 v. : : THE KROGER COMPANY, et al. : (Civil Appeal from : (Common Pleas Court) Defendant-Appellee : : ...........
OPINION
Rendered on the 3rd day of July, 2013.
...........
MARY E. LENTZ, Atty. Reg. #0043985, and MICAH M. SIEGAL, Atty. Reg. #0085647, Gottschlich & Portune, LLP, 201 East Sixth Street, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellant
RAY C. FREUDIGER, Atty. Reg. #0055564, Freund, Freeze & Arnold, Fifth Third Center, 1 South Main Street, Suite 1800, Dayton, Ohio 45402-2017 Attorney for Defendant-Appellee .............
HALL, J.,
{¶ 1} Barbara George appeals from the trial court’s entry of summary judgment in
favor of appellee Kroger Company on a negligence complaint stemming from her trip and fall in 2
a Kroger grocery store.1
{¶ 2} George’s sole assignment of error challenges the trial court’s finding that a
flat-bed dolly, the alleged cause of her fall, was an open and obvious hazard.
{¶ 3} The record reflects that George took a shopping cart upon entering the grocery
store and went to the produce department. As she proceeded down an aisle, she saw permanent
vegetable displays on shelves on the right and left-hand sides of the aisle. George also saw a
temporary display piled high with watermelons to her left. She parked her cart near the
watermelons and stepped to her left toward the lettuce, which she had seen in the permanent
display on the left-hand side of the aisle. As she did so, George tripped and fell over an empty
flat-bed dolly on wheels. She estimated that the handleless dolly was approximately two feet long
by two feet wide and stood a three or four inches off of the ground. The dolly was up against the
temporary watermelon display.
{¶ 4} George subsequently sued Kroger for negligence as a result of her fall. Kroger
moved for summary judgment, arguing that the dolly was an open and obvious hazard. The trial
court agreed. Finding no genuine issue of material fact, it sustained Kroger’s motion. The trial
court reasoned that the dolly was an open and obvious hazard as a matter of law, that no attendant
circumstances negated the open and obvious nature of the hazard, and that an active-negligence
exception to the open-and-obvious doctrine did not apply.
{¶ 5} We review a grant of summary judgment de novo, which means that “we apply
the standards used by the trial court.” Brinkman v. Doughty, 140 Ohio App.3d 494, 497, 748
1 Barbara George’s husband, Michael, is also an appellant herein based on a derivative loss-of-consortium claim he asserted below. The focus of the present appeal, however, is Barbara George’s negligence claim. 3
N.E.2d 116 (2d Dist.2000). Summary judgment is appropriate when a trial court correctly finds
“(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to
judgment as a matter of law; and (3) 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,
who is entitled to have the evidence construed most strongly in his favor.” Harless v. Willis Day
Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).
{¶ 6} On appeal, George contends the trial court erred in entering summary judgment
against her. She advances four arguments in support. First, she challenges the trial court’s finding
that the dolly was an open and obvious hazard as a matter of law. Second, she claims the trial
court erred in ignoring several attendant circumstances. Third, she asserts that placement of the
dolly in her path constituted “active negligence” that obviated the open-and-obvious doctrine.
Fourth, she argues that Kroger’s destruction of a videotape of the incident is itself an “issue of
material fact that should have precluded summary judgment[.]”
{¶ 7} To prevail on a negligence claim, “one seeking recovery must show the existence
of a duty, the breach of the duty, and injury resulting proximately therefrom.” Strother v.
Hutchinson, 67 Ohio St.2d 282, 285, 423 N.E.2d 467 (1981). The status of a person who enters
the land of another defines the scope of the duty owed to the entrant. Gladon v. Greater
Cleveland Reg. Transit Auth., 75 Ohio St.3d 312, 315, 1996-Ohio-137, 662 N.E.2d 287.
{¶ 8} Here George was a business invitee on Kroger’s property. As it pertains to
business invitees, an owner’s duty is to keep the premises in reasonably safe condition and to
warn of known dangers. James v. Cincinnati, 1st Dist. Hamilton No. C-070367, 2008-Ohio-2708,
¶ 24, citing Eicher v. U.S. Steel Corp., 32 Ohio St.3d 248, 512 N.E.2d 1165 (1987). Liability 4
arises when an owner has “superior knowledge of the particular danger which caused the injury”
as an “invitee may not reasonably be expected to protect himself from a risk he cannot fully
appreciate.” Uhl v. Thomas, 12th Dist. Butler No. CA2008-06-131, 2009-Ohio-196, ¶13, citing
LaCourse v. Fleitz, 28 Ohio St.3d 209, 210, 503 N.E.2d 159 (1986).
{¶ 9} When a danger is open and obvious, a property owner owes no duty of care to
individuals lawfully on the premises. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79,
2003-Ohio-2573, 788 N.E.2d 1088, ¶14. “To be open and obvious, a hazard must not be
concealed and must be discoverable by ordinary inspection.” (Citation omitted) Johnson v.
Southview Hosp., 2d Dist. Montgomery No. 25049, 2012-Ohio-4974, ¶9. The issue is not
whether an individual observes a condition, but whether it is capable of being observed. Larrick
v. J.B.T., Ltd., 2d Dist. Montgomery No. 21692, 2007-Ohio-1509, ¶11.
{¶ 10} George argues on appeal that she lacked any advance opportunity to perceive the
dolly and avoid the danger. Specifically, she asserts (1) that Kroger employee Derrick Lehman
placed the dolly against the watermelon display seconds before she encountered it and (2) that the
watermelon display concealed the dolly from view so that she lacked the ability to avoid it. Under
these circumstances, she contends the trial court erred in concluding, as a matter of law, that the
hazard presented by the dolly was open and obvious.
{¶ 11} Upon review, we find George’s argument to be unpersuasive. George did testify
during her deposition that Lehman admitted placing the dolly against the watermelon display only
seconds before she fell. (George depo. at 48). Based on the record before us, however, we fail to
see how that fact made any difference in this case. When she started walking down the produce 5
aisle, she was not in a position to see the dolly and could not say whether it was present.2 (Id. at
37-39). George also testified that she did not see Lehman place the dolly against the watermelon
display after she parked her cart and turned toward it. Therefore, she agreed he must have placed
the dolly in its position before she parked her cart. (Id. at 42-43). Significantly, George admitted
that once she parked her cart there was nothing obstructing her view of the dolly. (Id. at 41).
When asked why she could not see it, she responded: “I did not look down. I was looking at the
lettuce.” (Emphasis added). (Id. at 43).
{¶ 12} In our view, the foregoing testimony refutes George’s claim that the watermelon
display concealed the dolly to such an extent that she lacked sufficient advance opportunity to
observe the dolly and avoid tripping. The deposition exhibits (which include sketches and
pictures of the produce aisle, watermelon display, and dolly) also persuade us that the tripping
hazard presented by the dolly was open and obvious. Although the dolly lacked a handle, it was a
relatively large object that reasonably should have been observed if, as George admitted, nothing
was obstructing her view of it when she parked her cart and turned toward it. Indeed, George’s
own testimony reveals that she failed to see the dolly because she was looking at the lettuce, not
because it wasn’t reasonably observable.
{¶ 13} In reaching the foregoing conclusion, we reject George’s claim that the trial court
2 Earlier in her deposition testimony, George suggested that the dolly in fact was not present when she began walking down the aisle. See George depo. at 30 (“My basket was parked when I decided to get the lettuce to the left and prior to that when I’m walking down the aisle I saw nothing because there was nothing there. The stock boy had told me he had just put that flatbed [dolly] there seconds ago.”). Later in her deposition, she was asked to clarify this statement. She again appeared to claim the dolly was not present. (Id. at 38). When pressed further, however, George admitted that she could not see whether the dolly was present when she began walking down the aisle. (Id. at 38-39). She explained that she meant nothing was visible in the aisle itself and that she was unsure whether the dolly already had been placed against the watermelon display. (Id.). 6
erroneously followed Colvin v. Kroger Co., 12th Dist. Madison No. CA2005-07-026,
2006-Ohio-1151, instead of Kidder v. Kroger Co., 2nd Dist. Montgomery No. 20405,
2004-Ohio-4261. In Colvin, the plaintiff encountered a four-foot-high “Slim Jim” display at the
end of a grocery-store aisle. She rounded the corner to the right of the display and tripped on an
empty, flat cart. The cart was three or four feet long and stood eight to ten inches high. The cart
was “butted up against the display.” Although the cart had a waist-high handle, the record did not
reflect whether the handle was against the display or was to the right of the display. Colvin at
¶2-3. The plaintiff “testified that as she was walking toward the lunch meats, she was not looking
at the ground but instead was looking straight ahead, trying to gauge where she needed to go to
find the pepperoni.” Id. at ¶3. After reviewing the plaintiff’s deposition, as well as photographs
and drawings, the Twelfth District affirmed the trial court’s entry of summary judgment for
Kroger based on the open-and-obvious doctrine.
{¶ 14} In Kidder, the plaintiff made a left-hand turn at the end of a frozen-food aisle. As
she did so, she fell to the floor. She then saw water “all over the floor.” After her fall, the plaintiff
noticed someone mopping several aisles away. The plaintiff testified that she “might” have seen
the water if she had been looking for water. Kidder at ¶3. On review, this court found a genuine
issue of material fact as to whether the water on the floor was an open-and-obvious hazard. This
court noted the clearness of the water and the existence of little advance opportunity to avoid the
danger. This court also noted the plaintiff’s equivocal testimony that she “might” have seen the
water if she had been looking for it. Implicit in this statement was the converse, that she might
not have seen the water even if she had been looking. Under such circumstances, this court found
summary judgment inappropriate. Id. at ¶9. 7
{¶ 15} In the proceedings below, the parties disputed whether the present case most
closely resembled Colvin or Kidder. The trial court found Colvin the most analogous, reasoning:
Here, the Court finds that Ms. George’s circumstances are practically
identical to that of the Colvin Court. The dolly is substantially similar in length
and width to the cart which is discussed in Colvin, even having similar properties
of visibility (as compared with puddles of water). As stated by the Colvin court,
the cart and dolly is not hidden from view by the mere fact that it is lower to the
ground. A reasonable person would have seen the cart or the dolly, had they
simply not “abandoned the duty imposed to look.” * * *
Plaintiffs argue that Kidder, and by virtue of application of law Henry [v.
Dollar Gen. Store, 2d Dist. Greene No. 2002-CA-47, 2003-Ohio-206,] are
applicable to Ms. George’s injuries. In both, the plaintiffs encountered their hazard
after either turning a corner or exiting a building, just as Ms. George turned the
corner and encountered the dolly. * * * However, the court cannot agree.
According to Ms. George’s own deposition, Ms. George was not rounding a
corner where the dolly happened to be parked. Ms. George parked her shopping
cart “straight ahead,” turned her body left to face the opposite display of lettuce,
and then took a step forward, consequently tripping on the dolly. (George
Deposition, p. 56-57). Ms. George also testified that once she faced the lettuce
display, nothing obstructed her view. (Id. at 41). Unlike Kidder and Henry, where
the plaintiffs had no opportunity [to] evaluate the hazard, Ms. George had a clear
opportunity to become aware of her surroundings, since she was apparently 8
required to park her shopping cart and change direction to reach the lettuce. In the
words of the Second District, Ms. George simply “abandoned the duty imposed to
look.” * * *
(Citations omitted) (Doc. #65 at 7-8).
{¶ 16} Upon review, we believe the facts before us are more analogous to the flat cart in
Colvin than the clear water in Kidder. But that determination is not dispositive, as Colvin and
Kidder both have some distinguishing facts. For example, the cart in Colvin had a waist-high
handle, whereas the dolly in the present case lacked a handle. The location of the flat cart in
Colvin relative to the Slim Jim display also may have differed from the location of the dolly
relative to the watermelon display here. Without access to the photographs on which the Twelfth
District relied, we cannot know. On the other hand, the object that caused the fall in Kidder was
clear, whereas the dolly was not. Moreover, the plaintiff in Kidder admitted only that she “might”
have seen the water if she had been looking for it, whereas George admitted that she did not see
the dolly because she was not looking. The foregoing distinctions illustrate a fundamental point:
“The open and obvious nature of a hazard on any premises is analyzed by a fact-specific inquiry
and must be determined on a case by case basis. For this reason, previously decided open and
obvious cases tend to be of limited value.” Colville v. Meijer Stores Ltd., 2d Dist. Miami No.
2011-CA-011, 2012-Ohio-2413, ¶43 (Donovan, J., concurring); see also Henry at ¶16. Thus, our
determination that the open-and-obvious doctrine applies here does not turn on a choice between
Colvin and Kidder. Instead, it turns on our review of the evidence, including George’s deposition
testimony, photographs, and drawings. That evidence persuades us the hazard presented by the
dolly on which George tripped was open and obvious as a matter of law. 9
{¶ 17} George’s argument about attendant circumstances fails to persuade us otherwise.
“As a corollary to the open-and-obvious doctrine, [this court has] recognized that there may be
attendant circumstances [that] divert the individual's attention from [a] hazard and excuse her
failure to observe it.” Olivier v. Leaf & Vine, 2d Dist. Miami No. 2004 CA 35, 2005-Ohio-1910,
¶22. In her brief, George identifies what she believes are three attendant circumstances the trial
court ignored: (1) the dolly’s placement “behind/beside a display such that it would not become
visible to those to whom it might pose a danger until they were already tripping over it,” (2)
Lehman’s placement of the dolly against the watermelon display “within seconds of her tripping
over it,” and (3) the fact that she tripped “within her first step toward the permanent lettuce case.”
She also claims the trial court erred in its analysis of a fourth attendant circumstance, Lehman’s
presence in the area where he was working with produce on another dolly.
{¶ 18} Having reviewed the record, we find no attendant circumstances that reasonably
would have diverted George’s attention from the dolly and excused her failure to observe it. The
first three circumstances she cites are not things that diverted her attention from the dolly. The
placement of the dolly, the timing of its placement, and the fact that she tripped after taking a step
are not “distractions” at all. The only arguable attendant circumstance mentioned by George is
the presence of Lehman. But George did not testify that Lehman’s activities distracted her from
observing the dolly on which she tripped. We find no evidence to support such a conclusion. In
addition, attendant circumstances have been found not to include common or ordinary events.
See, e.g., Carter v. Miles Supermarket, 8th Dist. Cuyahoga No. 95024, 2010-Ohio-6365, ¶27.
This includes the routine restocking activity of a grocery employee. Isaacs v. Meijer, Inc., 12th
Dist. Clermont No. CA2005-10-098, 2006-Ohio-1439, ¶19. 10
{¶ 19} We are equally unpersuaded that Lehman’s placement of the dolly next to the
watermelons constituted “active negligence” precluding application of the open-and-obvious
doctrine. Arguing to the contrary, George cites Simmons v. Am. Pacific Ent., L.L.C., 164 Ohio
App.3d 763, 2005-Ohio-6957, 843 N.E.2d 1271 (10th Dist.). In Simmons, an employee placed a
dock plate between the plaintiff’s delivery truck and a loading dock to cover a gap. After the
plaintiff unloaded his freight, the employee removed the plate. The plaintiff remained in the truck
to rearrange his own cargo. With his back to the loading dock and unaware the plate had been
removed, the plaintiff stepped off the truck and fell in the gap. Although the plaintiff
acknowledged he would have seen the gap if he had looked, the Tenth District found the
open-and-obvious doctrine inapplicable. It reasoned:
Premises tort claims where the alleged negligence arises from static or
passive conditions, such as preexisting latent defects, are legally distinct from
claims averring active negligence by act or omission.* * * The distinction between
static and dynamic forms of negligence is legally significant, because it directly
correlates to the two separate and distinct duties an occupier owes its business
invitees: (1) static conditions relate to the owner’s duty to maintain its premises in
a reasonably safe condition, including an obligation to warn its invitees of latent or
hidden dangers, while (2) active negligence relates to the owner’s duty not to
injure its invitees by negligent activities conducted on the premises. * * *
The open-and-obvious doctrine eliminates a premises occupier’s duty to
warn a business invitee of static dangers on the premises if the dangers are known
to the invitee or are so obvious and apparent to the invitee that he or she may 11
reasonably be expected to discover them and protect himself or herself against
them. * * * The rationale is that an open and obvious danger serves as its own
warning. Open and obvious dangers are those not hidden, concealed from view, or
undiscoverable upon ordinary inspection. * * * A person does not need to observe
the dangerous condition for it to be an “open and obvious” condition under the
law; rather, the determinative issue is whether the condition is observable. * * *
Even in cases where the plaintiff did not actually notice the condition until after he
or she fell, this court has found no duty to exist in cases where the plaintiff could
have seen the condition if he or she had looked. * * *
Here, the trial court found that APE did not have a duty to warn [the
plaintiff] of the injury-causing gap because the condition was open and obvious as
a matter of law. Although [the plaintiff] had his back to the gap and was not aware
of its existence, [he] acknowledged that he would have seen the gap had he turned
and looked. Plaintiffs’ negligence claim, however, was not predicated solely on a
failure to warn of a preexisting static hazard; plaintiffs allege that [the employee]
negligently removed the dock plate while [the plaintiff] was still in the process of
unloading freight. The evidence of record in fact demonstrates that [the employee]
removed the dock plate some time before [the plaintiff’s] injury, thus creating an
issue of fact concerning [the employee’s] actions and whether they constitute an
act of negligence to which the open-and-obvious doctrine would not apply. While
the amount of time elapsing between [the employee’s] act and [the plaintiff’s]
injury may be significant in determining whether [the employee’s] action had 12
become a static condition on the premises, the record evidence makes sufficiently
clear that when the facts are construed in a light most favorable to plaintiffs,
reasonable minds could find that [the employee’s] active conduct caused [the
plaintiff’s] injury, thus rendering the open-and-obvious doctrine inapplicable.
(Citations omitted). Id. at ¶20-22.
{¶ 20} George contends the present case is analogous to Simmons. Like the employee
in Simmons, who removed the dock plate shortly before the plaintiff fell, George argues that
Kroger employee Lehman placed the dolly in her path only seconds before she tripped and fell.
She argues that this “active negligence” by Lehman precluded application of the
open-and-obvious doctrine. At a minimum, she contends the record reveals a genuine issue of
material fact as to whether Lehman committed active negligence within the meaning of Simmons.
{¶ 21} Upon review, we find George’s reliance on Simmons misplaced. In Simmons, the
plaintiff had used the dock plate while unloading freight for the employee. That being so, the
plaintiff arguably had no reason to look behind him to be sure the plate remained in place as he
rearranged his own cargo. Having encountered the plate moments before, the plaintiff reasonably
may have assumed it remained in place absent any warning from the employee. Unlike Simmons,
the record contains no evidence that George had traversed the area around the watermelon display
before her fall. When she began walking down the aisle, she was not in a position to see the dolly
and could not say whether it already was present. (George depo. at 37-39). She knows only that
Lehman must have placed the dolly in its position sometime before she parked her cart and
turned toward the lettuce. (Id. at 42-43). Unlike Simmons, the record does not reflect any prior
observation of the area around the watermelon display that might excuse George from looking 13
again. From her perspective, then, it mattered not whether the dolly had been placed against the
watermelon display seconds earlier or hours earlier. Either way, she would have tripped because
she “was looking at the lettuce.” (Id. at 43). Because the timing of Lehman’s placement of the
dolly against the watermelon display had no bearing on George’s fall, we reject her argument that
the accident was attributable to active negligence rather than a static hazard. The rationale
underlying the distinction drawn in Simmons has no applicability here.
{¶ 22} Finally, we reject George’s claim that Kroger’s destruction of a videotape of the
incident precluded the entry of summary judgment against her. This argument concerns store
manager Martin Crump’s deposition testimony that he had reviewed video footage of the produce
department from a security camera. According to Crump, he “didn’t see anything on there”
because the camera “did not cover where [George] fell.” (Crump. depo. at 30, 56). Crump
testified that he did not know what George looked like. (Id. at 60). As a result, he could not say
whether he saw her anywhere on the tape. (Id. at 57). He knew, however, that he did not see the
fall depicted on the tape. (Id.). Crump explained that the tape no longer existed because videos
are overwritten every thirty days pursuant to store policy. (Id. at 55).
{¶ 23} On appeal, George argues that destruction of the tape supports an inference that
its contents were adverse to Kroger. George further argues that this inference was sufficient to
defeat Kroger’s summary-judgment motion. We reject this argument for at least two reasons.
First, George did not raise this argument in opposition to Kroger’s summary-judgment motion,
despite the fact that Crump was deposed on April 18, 2012 and she filed her opposition
memorandum on June 21, 2012. 3 We cannot fault the trial court for failing to rely on an
3 George raised the destruction-of-evidence issue only in the context of seeking leave to file an amended complaint adding a 14
argument George did not raise. Second, the inference George mentions does not arise absent “a
strong showing of malfeasance.” Roetenberger v. Christ Hosp., 163 Ohio App.3d 555,
2005-Ohio-5205, 839 N.E.2d 441, ¶25 (1st Dist.2005). No such showing was made here.
{¶ 24} Based on the reasoning set forth above, we overrule George’s assignment of error
and affirm the judgment of the Montgomery County Common Pleas Court.
.............
WELBAUM, J., concurs. FROELICH, J., concurs in judgment only.
Copies mailed to:
Mary E. Lentz Micah M. Siegal Ray C. Freudiger Hon. Gregory F. Singer
spoliation claim. The trial court denied leave to amend, and George has not challenged that ruling on appeal. Her memorandum opposing summary judgment did not address the destruction-of-evidence issue. (See Doc. #44).