Hissong v. Miller

927 N.E.2d 1161, 186 Ohio App. 3d 345
CourtOhio Court of Appeals
DecidedMarch 12, 2010
DocketNo. 2009-CA-37
StatusPublished
Cited by30 cases

This text of 927 N.E.2d 1161 (Hissong v. Miller) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hissong v. Miller, 927 N.E.2d 1161, 186 Ohio App. 3d 345 (Ohio Ct. App. 2010).

Opinion

Brogan, Judge.

{¶ 1} Hissong appeals from the judgment of the Miami County Common Pleas Court in favor of Ron and Tina Miller, d.b.a. Z-Coil Pain Relief Footwear. The facts giving rise to the litigation are as follows.

I

{¶ 2} In February 2008, Hissong visited Ron and Tina Miller’s Piqua, Ohio, Z-Coil Pain Relief Footwear store. While there, Hissong asked the sales clerk if she could use the restroom. The clerk replied, “[0]f course,” and directed Hissong “through the curtains to the left of the trellis in the back.”1 After the clerk pulled back the curtain, either Hissong or the clerk (it is not clear who) told Tim Miller, who was working in the back room, that she was going to use the restroom. Miller replied that that was “fine.” Id. Hissong, who had never been [349]*349behind the curtain before, saw the trellis near the back on the left, and just before the trellis began, she saw the face of a closed door. Believing this was the restroom “to the left of the trellis,” Hissong walked over to it. The door had a hook-and-eye latch on its upper-right side, which Hissong said she did not see. (Neither the Millers nor the clerk could say why the door was not latched at the time.) Also, affixed to the center of the door, about eye-level, was a small piece of paper on which was handwritten, “Notice, please keep this door locked.” Hissong opened the door — which opened inwardly — about a foot and a half.2 The other side was dark, but enough light from the backroom shone inside for Hissong to see a light switch on the right wall. As she reached for the switch, Hissong at the same time stepped through the doorway — never looking down. Had she looked down, she would have seen the steps that descended immediately on the other side of the door’s threshold. As it was, expecting her foot to find the solid restroom floor and not finding it, Hissong bounced down the steps, severely injuring her shoulder on the way.

{¶ 3} In July 2008, Hissong filed a complaint against the Millers for negligence. She asserted that the abrupt and unexpected drop in floor elevation — in other words, the absence of a landing — was a hidden or latent danger that the Millers ought to have warned her about. The Millers filed a motion for summary judgment, arguing that they had no duty to warn Hissong of any damages that lurked in the darkness behind the basement door she entered. The trial court agreed and entered summary judgment for the Millers. Hissong has assigned three assignments of error in this appeal.

II

{¶ 4} In each assignment of error, Hissong argues a different reason why the court’s decision was erroneous. First, she argues that the court wrongly concluded that the stairs in the Millers’ store were open and obvious. Second, Hissong argues in the alternative that even if the trial court were correct that the stairs were open and obvious, the court wrongly concluded that attendant circumstances did not excuse her failure to see them. And third, Hissong argues that the court wrongly concluded that the step-in-the-dark rule barred her claim.

{¶ 5} We will review the trial court’s summary-judgment decision de novo. See Cox v. Kettering Med. Ctr., Montgomery App. No. 20614, 2005-Ohio-5003, 2005 WL 2327124. To determine whether a trial court erred under de novo review, we apply the same legal standard it did (or should have) to the same facts, and we compare our conclusion to the court’s. Here, the legal standard [350]*350comes from Civ.R. 56(C): Summary judgment on Hissong’s negligence claim is appropriate if the Millers can show (1) that no genuine issue of material fact remains, (2) that they are entitled to judgment as a matter of law, and (3) that even when the evidence is construed most strongly in Hissong’s favor, reasonable minds can conclude only adversely to her. We agree with the trial court that reasonable minds can conclude only that no attendant circumstances were present. But we agree with Hissong that reasonable minds can conclude differently on whether the stairs were open and obvious and whether she stepped into the darkness.

{¶ 6} Broadly speaking, before a plaintiff can recover from a defendant for negligence, she must prove that the defendants owed her a duty of care, that they breached the duty, and that the breach proximately caused her injury. See Menifee v. Ohio Welding Prods., Inc. (1984), 15 Ohio St.3d 75, 77, 15 OBR 179, 472 N.E.2d 707. Here, duty and cause are in focus. The overarching issue in the first and second assignments of error is whether the Millers had a duty of care to protect Hissong from the stairs. The issue in the third assignment of error assumes that the Millers had such a duty and asks whether Hissong bears any responsibility for her injuries because she stepped into a dark space. Reviewing the assignments of error out of order, we begin with the first, then move to the third, and end with the second.

A shopkeeper owes his customers a duty of ordinary care

{¶ 7} Proving that the Millers had a duty to protect her from the stairs is key to Hissong’s claim because without such a duty, the Millers are not legally liable for her injuries. See Olivier v. Leaf & Vine, Miami App. No. 2004 CA 35, 2005-Ohio-1910, 2005 WL 937928, at ¶ 21 (“The existence of a duty is fundamental to establishing actionable negligence, without which there is no legal liability” [citation omitted]). Because the parties appear to agree that Hissong was a business invitee, the Millers owed her a duty of reasonable or ordinary care. See Perry v. Eastgreen Realty Co. (1978), 53 Ohio St.2d 51, 52, 7 O.O.3d 130, 372 N.E.2d 335, quoting Prosser on Torts (4th Ed. 1971) 392-393. This standard of care required the Millers to maintain their store “in a reasonably safe condition so that its customers [were] not unnecessarily and unreasonably exposed to danger.” Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203, 18 OBR 267, 480 N.E.2d 474. But the standard did not require the Millers to be guarantors of their customers’ safety. Id. (“A shopkeeper is not * * * an insurer of the customer’s safety.”) The Millers could meet this standard of care by inspecting their store for unknown dangers, by taking “reasonable precautions” to protect customers from foreseeable dangers, and by warning customers [351]*351of known latent or hidden dangers. Perry at 52, 7 0.0.3d 130, 372 N.E.2d 335, quoting Prosser on Torts, 392-393.

Dangers that are open and obvious

{¶ 8} The Millers could expect that customers would protect themselves from dangers in their store that were open and obvious. The question of open- and-obvious dangers does not concern an affirmative defense, but rather concerns the threshold issue of whether a duty of care exists. Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, at ¶ 13. Unlike hidden or latent dangers, a shopkeeper has no duty to warn customers away from dangers that are open and obvious. See Armstrong at syllabus. The reason for this rule lies in the idea that “the open and obvious nature of the hazard itself serves as a warning.” Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d 642, 644, 597 N.E.2d 504.

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Bluebook (online)
927 N.E.2d 1161, 186 Ohio App. 3d 345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hissong-v-miller-ohioctapp-2010.