[Cite as Johnson v. Southview Hosp., 2012-Ohio-4974.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
CAROLYN JOHNSON :
Plaintiff-Appellant : C.A. CASE NO. 25049
v. : T.C. NO. 11CV3254
SOUTHVIEW HOSPITAL, et al. : (Civil appeal from Common Pleas Court) Defendant-Appellee :
:
..........
OPINION
Rendered on the 26th day of October , 2012.
JOHN D. SMITH, Atty. Reg. No. 0018138 and ANDREW P. MEIER, Atty. Reg. No. 0083343, 140 N. Main Street, Springboro, Ohio 45066 Attorneys for Plaintiff-Appellant
CHARLES F. SHANE, Atty. Reg. No. 0062494 and HOWARD P. KRISHER, Atty. Reg. No. 0009088, 400 PNC Center, 6 N. Main Street, Dayton, Ohio 45402 Attorneys for Defendant-Appellee
KIRSTIE N. YOUNG, Atty. Reg. No. 0084007, 400 PNC Center, 6 N. Main Street, Dayton, Ohio 45402 Co-counsel for Defendant-Appellee
.......... DONOVAN, J.
{¶ 1} Carolyn Johnson appeals from a judgment of the Montgomery County
Court of Common Pleas, which granted summary judgment to Southview Hospital on
Johnson’s personal injury claim. For the following reasons, the judgment of the trial court
is affirmed.
Facts & Procedural History
{¶ 2} On May 7, 2009, Johnson transported an acquaintance to Southview
Hospital. After several hours in the emergency room, Johnson went to the cafeteria. As
she entered the cafeteria through an entry over which an accordion-style gate had been
partially closed, she tripped over the track for the gate and fell to the floor, sustaining
injuries to her face and hand. Several photographs of Johnson’s approaching the doorway
as well as her fall were captured by security cameras.
{¶ 3} On May 4, 2011, Johnson filed a complaint against Southview Hospital, 1
alleging that the track had created a hazard and that the hospital’s negligence had caused her
injuries. The hospital filed a motion for summary judgment, which was granted by the trial
court. Johnson appeals from the summary judgment in favor of Southview Hospital.
{¶ 4} Johnson raises one assignment of error on appeal, which states:
The trial court erred in granting summary judgment in favor of Southview.
{¶ 5} Johnson contends that the trial court erred in granting summary judgment,
because it incorrectly concluded that the hazard had been open and obvious; alternatively, she
argues that the trial court erred in finding no genuine issue of material fact as to whether
1 Johnson’s complaint also named Medical Mutual and “Medicare,” because these entities paid some of her medical bills. These parties are not relevant to this appeal. 3
attendant circumstances excused her failure to recognize the open and obvious hazard.
Standard of Review
{¶ 6} Civ.R. 56(C) provides that summary judgment may be granted when the moving
party demonstrates that (1) there is no genuine issue of material fact, (2) the moving party is
entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the
nonmoving party, 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. State ex rel.
Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181, 183, 677 N.E.2d 343 (1997); Harless v.
Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978). The moving party
“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.” Dresher v. Burt, 75 Ohio St.3d 280,
293, 662 N.E.2d 264 (1996). If the moving party satisfies its initial burden, “the nonmoving party
then has a reciprocal burden * * * to set forth specific facts showing that 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.” Id.; see Civ.R. 56(E).
{¶ 7} In any negligence action, the plaintiff must demonstrate the existence of a duty,
a breach of that duty, and an injury proximately resulting from the breach of the duty.
Mussivand v. David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989); Jeffers v. Olexo, 43 Ohio
St.3d 140, 142, 539 N.E.2d 614 (1989).
{¶ 8} Under the common law related to premises liability, the status of a person who
enters on land determines the nature and extent of the legal duty owed to him or her. Shump v. 4
First Continental-Robinwood Assoc., 71 Ohio St.3d 414, 417, 644 N.E.2d 291 (1994). In this
case, there was no dispute that Johnson was a business invitee. An owner or occupier of land
owes a business invitee a duty to exercise ordinary care in maintaining the premises in a
reasonably safe condition, in order to insure that the invitee is not unnecessarily and unreasonably
exposed to danger. Bumgardner v. Wal-Mart Stores, Inc., 2d Dist. Miami No. 2002 CA 11,
2002-Ohio-6856, ¶ 9. An owner or occupier of land owes no duty to warn invitees of open and
obvious dangers on the property, because invitees may reasonably be expected to discover them
and protect against them. Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 203-204, 480
N.E.2d 474 (1985), citing Sidle v. Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589 (1968); Swiger
v. Kohl’s Dept. Store, Inc., 191 Ohio App.3d 629, 2010-Ohio-6230, 947 N.E.2d 232, ¶ 8 (2d
Dist.).
{¶ 9} To be open and obvious, a hazard must not be concealed and must be
discoverable by ordinary inspection. Parsons v. Lawson Co., 57 Ohio App.3d 49, 50-51, 566
N.E.2d 698 (5th Dist.1989). “The rationale is that an open and obvious danger itself serves as a
warning and that ‘the owner or occupier may reasonably expect that persons entering the
premises will discover those dangers and take appropriate measures to protect themselves.’” Id.,
citing Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 644, 597 N.E.2d 504 (1992); Paschal
at 203-204. The open and obvious doctrine relates to the duty prong of negligence, and acts as a
bar to recovery. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788
N.E.2d 1088, ¶ 11; Bumgardner at ¶ 15. “The open-and-obvious doctrine applies an
objectively-reasonable-person standard of what the plaintiff should have known.” Bumgardner
at ¶ 18. 5
Analysis
{¶ 10} Johnson testified in her deposition that on May 7, 2009, she drove a young
woman to Southview Hospital and stayed with her in the emergency room for several hours. At
5:30 or 6:00 p.m., Johnson decided to go to the cafeteria because she had not eaten all day. A
doctor walked with her part of the way and pointed her in the direction of the cafeteria. Johnson
attempted to enter the cafeteria through an entryway across which an accordion-style gate had
been partially closed; the track for the gate crossed the entire entry along the floor. Johnson
testified that the lights were on in the cafeteria, she could see where she was going, and nothing
obstructed her view. Johnson was carrying a planner and her purse. As Johnson neared the
threshold, a cafeteria employee asked her if she needed help. Johnson apparently fell before she
could respond.
{¶ 11} Security pictures were introduced which captured images of Johnson’s fall.
When Johnson was asked whether she could identify in the pictures what she had tripped on, she
responded that she “wouldn’t know whether [she] tripped on anything.” While looking at one of
the security photographs, she then circled the track, which ran along the floor across the opening,
as the item on which she “believed” she had tripped. Neither Johnson’s testimony nor the
photographs indicated that there were any other objects in or around the area where Johnson
might have tripped or which would have obstructed her view of the track on the floor. Johnson’s
deposition, to which the security photos, other photos, and medical records were attached as
exhibits, was the only evidence offered in opposition to the hospital’s motion for summary
judgment.
{¶ 12} In granting summary judgment, the trial court found no genuine issue of 6
material fact. The trial court concluded that the track across the cafeteria entrance was an open
and obvious hazard. The trial court found that the photographs of Johnson’s fall “graphically
establish that the metal track was clearly visible to [Johnson] as she approached the cafeteria’s
partially closed accordion-style gate.” Furthermore, the trial court noted “to her considerable
credit, plaintiff unequivocally admits that nothing obstructed her view of the gate and track.”
The court continued: “Court’s Exhibit 1 and security camera photographs of Plaintiff’s actual fall
clearly document the open and obvious accordion-style gate partially deployed in its metal track.
Simply, had Plaintiff looked, she would have seen the gate and track, and reasonable minds could
not find otherwise.”
{¶ 13} Johnson claims that there was a genuine issue of material fact as to whether the
hazard she encountered was open and obvious. She cites Bumgardner, 2d Dist. Miami No. 2002
CA 11, 2002-Ohio-6856, and Henry v. Dollar General Store, 2d Dist. Greene No. 2002 CA 47,
2003-Ohio-206, in support of her argument. These cases concluded that the question as to
whether the hazardous condition was “open and obvious” was a factual one to be determined by
the trier of fact (a jury, in those cases). In Bumgardner, the plaintiff tripped over a pallet, which
was adjacent to the shopping cart carousel and on most of which was stacked a large display of
soft drinks; “the pallet was located at the end of, but at the back side of, a row of shelves that
were stocked with merchandise.” The plaintiff did not see the pallet until after she fell. In
Henry, a door to the store had been propped open using a cement block; the block had been
placed in a location where customers were arguably likely to be turning or changing direction,
and the doorway was partially blocked by a trash can full of mops and brooms, placed opposite
the cement block. In these cases, we noted the “extremely fact-specific inquiry” upon which the 7
determination was based and concluded that, under the facts presented in those cases, reasonable
minds could disagree about whether the hazard had been open and obvious. See Henry at ¶16.
{¶ 14} These holdings, however, do not stand for the proposition that, in every
slip-and-fall case, a factual question exists as to whether the hazard was open and obvious. In
many instances, this determination can be made as a matter of law. See, e.g., Armstrong, 99
Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088 (in which the court held, as a matter of law,
based on photographs presented by the parties, that the bracket of a shopping cart guardrail near
the entrance to the store was an open and obvious hazard). Herein, the trial court concluded that
“the gate and track were at all times open and obvious and reasonable minds could not find
otherwise.” Based on the photographs and Johnson’s own admissions, we agree with the trial
court’s conclusion.
{¶ 15} Johnson further argues that, even if the hazard posed by the gate and track were
open and obvious, attendant circumstances excused her failure to observe the hazard and
precluded the application of the open and obvious doctrine.
{¶ 16} We have recognized, as a corollary to the open-and-obvious doctrine, that there
may be attendant circumstances that divert the individual’s attention from a hazard and therefore
excuse her failure to observe it. Olivier v. Leaf & Vine, 2d Dist. Miami No. 2004 CA 35,
2005-Ohio-1910, ¶ 22. There is no precise definition of “attendant circumstances,” but it
generally refers to “any distraction that would come to the attention of [the plaintiff] in the same
circumstances and reduce the degree of care an ordinary person would exercise at the time.”
Colville v. Meijer Stores Ltd., 2d Dist. Miami No. 2011-CA-011, 2012-Ohio-2413, ¶ 30, quoting
McLain v. Equitable Life Assur. Co. of the U.S., 1st Dist. Hamilton No. C-950048, 1996 WL 8
107513, *5 (Mar. 13, 1996).
{¶ 17} Attendant circumstances refer to all facts relating to the event, such as time,
place, surroundings or background, and the conditions normally existing that would unreasonably
increase the normal risk of a harmful result. (Internal citations omitted.) Collier v. Libations
Lounge, L.L.C., 8th Dist. Cuyahoga No. 97504, 2012-Ohio-2390, ¶ 16. An attendant
circumstance “must divert the attention of the injured party, significantly enhance the danger of
the defect, and contribute to the fall. * * * Additionally, an attendant circumstance is one that is
beyond the control of the injured party.” (Internal citations omitted.) Williamson v. Geeting,
12th Dist. Preble No. CA2011-09-011, 2012-Ohio-2849, ¶ 22. However, attendant
circumstances do not include regularly encountered, ordinary, or common circumstances. Id.,
citing Cooper v. Meijer, 10th Dist. Franklin No. 07AP-201, 2007-Ohio-6086, ¶ 17.
{¶ 18} The attendant circumstances cited by Johnson in her memorandum in opposition
to the motion for summary judgment were the cafeteria employee’s offer of help as Johnson
attempted to cross the threshold to the cafeteria, the personal items she was holding, the partially
open gate, and the absence of signs that the cafeteria was closed. The trial court rejected these
arguments. In her brief on appeal, Johnson sets forth additional attendant circumstances: the
absence of signs indicating that the doorway was an exit or that patrons should watch their step.
She also repeatedly asserts that the track was not supposed to be down unless the cafeteria was
closed.
{¶ 19} We agree with the trial court that Johnson failed to establish that attendant
circumstances existed at the time of her fall. Carrying a purse or planner or being asked about
one’s need for help from an employee constitute “regularly encountered, ordinary, or common 9
circumstances.” Moreover, a lack of signage or partially open gate would not distract a person
so as to reduce her level of care. In fact, the gate actually should enhance awareness on the part
of an individual crossing the threshold.
{¶ 20} We also note that many of Johnson’s claims about the need for signage, such
as that the gated doorway was an exit only and that the cafeteria was closed and should have had
a sign reflecting this fact, are unsupported by the record. No one testified that the cafeteria was
closed, about the number of entrances and exits available to patrons, or that the location at which
Johnson fell was intended to be used only as an exit. Johnson’s testimony recounted hearsay
statements to this effect, but hearsay is inadmissible and, therefore, not properly offered in
opposition to a motion for summary judgment. Knoth v. Prime Time Marketing Mgmt., Inc., 2d
Dist. Montgomery No. 20021, 2004-Ohio-2426, ¶ 13. And, even assuming that, per hospital
policy, the track was not supposed to be down when the cafeteria was open (another fact about
which no admissible evidence was presented), this deviation from the preferred procedure had no
bearing on the open and obvious nature of the hazard and did not constitute attendant
circumstances which would prevent summary judgment. We agree with the trial court’s
conclusion that there was no genuine issue of material fact as to the presence of attendant
circumstances.
{¶ 21} The sole assignment of error being overruled, the judgment of the trial court is
affirmed.
FAIN, J., concurring: [Cite as Johnson v. Southview Hosp., 2012-Ohio-4974.] {¶ 22} I concur in Judge Donovan’s opinion for the court. I concur generally in her
analysis of the open-and-obvious issue. I write separately because my application of the
attendant-circumstances doctrine is a little different.
I. The Doctrine of Attendant Circumstances
{¶ 23} An open-and-obvious analysis is addressed to the duty of the owner of the
property, not to the duty of the plaintiff. Armstrong v. Best Buy, Inc., 99 Ohio St. 3d 79,
2003-Ohio-2573, 788 N.E.2d 1088, ¶ 13-14. An owner has no duty to warn occupants of the
premises of hazards that would be open and obvious to a reasonable person encountering the
hazard. Because the analysis addresses the duty of the owner, the issue is whether the owner
could reasonably foresee that the hazard would not be open and obvious to a person encountering
the hazard.
{¶ 24} The attendant-circumstances doctrine informs the open-and-obvious analysis,
and is therefore also addressed to the duty of the owner of the premises to warn of a potential
hazard. In performing the open-and-obvious analysis, the court is obliged to consider the
circumstances generally attending a person encountering the hazard at that location on the
premises. If those circumstances would distract a reasonable person from a hazard that would
otherwise be open and obvious, then they must be taken into account.
{¶ 25} But the analysis is still concerned with the issue of whether the owner had a duty
to warn persons of the existence of the hazard. The issue is still whether the owner could
reasonably expect that the hazard would be open and obvious to a person encountering it.
Therefore, the attendant circumstances that inform the analysis refer to circumstances that the 11
owner could reasonably foresee.
{¶ 26} For example, if the owner (including, of course, its agents and employees) has
placed shelves containing merchandise, with signs encouraging patrons to purchase the
merchandise, adjacent to, and above, a patch of soapy water on the floor, that is an attendant
circumstance that must be considered in determining whether the hazard is open and obvious.
Even if the soapy water would otherwise be open and obvious, the placement of the attractive
merchandise adjacent to, and above it, could reasonably be expected by the owner to distract a
reasonable person from the hazard, thereby rendering it not open and obvious. The circumstance
of the distracting merchandise generally attends persons encountering the otherwise open and
obvious hazard. See Bumgardner v. Wal-Mart Stores, Inc. 2d Dist. Miami No. 2002-CA-11,
2002-Ohio-6856, in which the existence of merchandise in close proximity to a hazard was a
factor in finding a genuine issue of material fact in a personal injury case.
{¶ 27} But suppose that the same soapy water is present on the floor of the store, with
no distracting merchandise nearby, and a reasonable person could be expected to see the patch of
soapy water, because it is roughly two feet in diameter, and the suds generally present in the
water make it clearly visible. Suppose further that a crazed gunman, armed with an assault rifle,
enters the store and begins shooting persons at random. One occupant of the premises, running
for his or her life, does not see the soapy water, slips, falls, and is injured. The particular
circumstance of fleeing a mortal danger distracted the occupant from noticing the hazard that
would otherwise have been open and obvious, but that circumstance could not have been
reasonably anticipated by the owner of the premises.
{¶ 28} It is the circumstances generally attendant upon a person encountering the 12
hazard at that location, which the owner could reasonably foresee, not particular circumstances of
a person when encountering the hazard, which the owner could not reasonably foresee, that
inform the open-and-obvious doctrine, potentially rendering a hazard not open and obvious that
would otherwise be open and obvious.
{¶ 29} Thus, in Williams v. Voss Chevrolet, Inc., 2d Dist. Montgomery No. 21560,
2006-Ohio-4509, ¶ 16, we held:
* * * that no reasonable jury could find that the owner of the Voss
Chevrolet store was charged with knowledge, constructive or
actual, that a salesman was going to make a chance remark about
the weather at the moment that a customer was about to enter the
store. Therefore, that cannot be an attendant circumstance capable
of rendering the four-inch step up into the store other than open
and obvious, and the store owner had no duty to warn the customer
of the hazard, or to correct it.
{¶ 30} Because the issue is whether the owner had a duty to warn persons on the
premises of a potential hazard, the question is whether the owner could reasonably expect, from
circumstances known to the owner, or of which the owner had constructive knowledge, that the
hazard would be open and obvious to a reasonable person encountering the hazard.
II. Application of the Doctrine of Attendant
Circumstances to the Facts of this Case 13
{¶ 31} In her appellate brief, Johnson argues that the following attendant circumstances
rendered the hazard represented by the track in the floor less than open and obvious: (1) “the
partially open gate created the only entrance to the cafeteria”; (2) “the partially open gate blocked
the rest of the entrance”; (3) “the entrance was actually an exit”; (4) “the metal track was only
supposed to be down when the cafeteria is closed”; and (5) “there were absolutely no signs
indicating the entrance was actually an exit, that the cafeteria was closed, or warning patrons to
‘watch your step.’ ” These circumstances have the potential of being attendant circumstances,
because a reasonable finder of fact could conclude that the owner, through its agents and
employees, knew of them, or had constructive knowledge of them.
{¶ 32} I agree with Judge Donovan, however, that none of these circumstances could be
expected to distract a reasonable person from noticing the hazard posed by the metal track in the
floor, which was otherwise open and obvious. The fact that the path including the metal track in
the floor was the only entrance to the cafeteria did not render the metal track any less open and
obvious. Neither the fact that the entrance was actually an exit, nor that there were no signs
reflecting that the entrance was an exit – or that the cafeteria was closed – constituted a
distraction that would render the metal track in the floor less open and obvious. None of these
circumstances would distract a reasonable person from noticing the open and obvious metal track
in the floor.
{¶ 33} In her reply brief, Johnson adds the woman walking towards her from inside the
cafeteria, and the vending machines, to the attendant-circumstances calculus. Like the
salesman’s comment about the weather in Williams v. Voss Chevrolet, Inc., supra, the fact that
someone would be walking towards a person encountering the metal track in the floor is not 14
something of which the owner had actual or constructive knowledge, thereby leading the owner
to anticipate that the attention of the person encountering the otherwise open and obvious hazard
would be distracted at the time of the encounter.
{¶ 34} As for the vending machines, as Southview Hospital notes in its answer brief,
this was raised in the trial court merely as a possibility that there might have been vending
machines in the area. Needless to say, mere speculation that there might have been a distracting
attendant circumstance at the time a plaintiff encountered a hazard falls short of establishing that
there was, in fact, a distracting attendant circumstance.
{¶ 35} I agree that when the evidence in this record is viewed in a light most favorable
to Johnson, no reasonable finder of fact could find that the metal track in the floor upon which
Johnson appears to have tripped was other than open and obvious. Therefore, I concur in the
FROELICH, J., dissenting:
{¶ 36} After spending several hours in the emergency room with a young woman from
her church, Carolyn Johnson decided to look for the hospital cafeteria. A doctor walked her part
of the way and directed her toward the cafeteria. Johnson saw that the cafeteria appeared to be
open, and she attempted to enter it through a doorway across which an accordion-style gate had
been partially closed. As noted in the lead opinion, the lights in the cafeteria were on, Johnson
could see where she was going, and nothing obstructed her view. As Johnson neared the
threshold, a cafeteria employee asked her if she needed help. Before Johnson could respond, she
fell in the cafeteria’s doorway. [Cite as Johnson v. Southview Hosp., 2012-Ohio-4974.] {¶ 37} At her deposition, Johnson stated that she “wouldn’t know whether [she] tripped
on anything.” While looking at security pictures, Johnson identified the track that ran along the
floor across the opening as the item on which she “believed” she had tripped. The record does
not reflect any other objects in or around the doorway on which Johnson might have tripped or
which would have obstructed her view of the track on the floor.
{¶ 38} The trial court found that “Court’s Exhibit 1 and security camera photographs of
Plaintiff’s actual fall clearly document the open and obvious accordion-style gate partially
deployed in its metal track. Simply, had Plaintiff looked, she would have seen the gate and
track, and reasonable minds could not find otherwise.” The trial court found no genuine issues
of material fact and granted summary judgment to the hospital.
{¶ 39} Johnson contends that a genuine issue of material fact exists as to whether the
hazard she encountered was open and obvious. “To be open and obvious, a hazard must not be
concealed and must be discoverable by ordinary inspection. The relevant issue is not whether an
individual observes the condition, but whether the condition is capable of being observed.”
(Citations omitted.) Larrick v. J.B.T., Ltd., 2d Dist. Montgomery No. 21692, 2007-Ohio-1509, ¶
11.
{¶ 40} Johnson relies upon Bumgardner v. Wal-Mart Stores, Inc., 2d Dist. Miami No.
2002 CA 11, 2002-Ohio-6856, and Henry v. Dollar General Store, 2d Dist. Greene No. 2002 CA
47, 2003-Ohio-206, both of which are discussed by the majority. These cases recognized that
“whether a danger is open-and-obvious requires an extremely fact-specific inquiry.” Henry at
¶ 16. In both cases, we concluded that, under the specific circumstances presented in that case,
the trier of fact could reasonably conclude that the hazard had not been open and obvious.
Henry at ¶ 13; Bumgardner at ¶ 26. [Cite as Johnson v. Southview Hosp., 2012-Ohio-4974.] {¶ 41} I agree with the lead opinion’s statements that the law is not “that, in every
slip-and-fall case, a factual question exists as to whether the hazard was open and obvious” and
that “[i]n many instances, this determination can be made as a matter of law.” However, in this
case, the trial court concluded that no jury could have reasonably found that the track was not an
open and obvious hazard. Although this is a close call on the record before us, I disagree that, as
a matter of law, the track was an open and obvious danger.
{¶ 42} Johnson testified she did not know why, or on what, she fell; she believed she
had tripped. The trial court’s reference to the “gate and the track” may conflate two different
dangers. The gate was open and obvious and walking into it would not establish even potential
liability on Southview. However, there is nothing in this record from which a court could
irrefutably find that the gate and the track were one unit, that some sort of track continued beyond
the partially closed gate, or, if it did, whether it was raised,2 flat on the surface or indented into
the floor. These possibilities (i.e. genuine issues of material fact) do not even consider whether
the presence of the obvious partially closed gate created a reasonable expectation on the part of
Johnson whether the open portion of the entrance/exit was, therefore, the safe and expected way
to enter the cafeteria.
{¶ 43} Further, if the track were an open and obvious danger, attendant circumstances
excused her failure to observe it and precluded the application of the open and obvious doctrine.
“Attendant circumstances” generally refer to “any distraction that would come to the attention of
[the plaintiff] in the same circumstances and reduce the degree of care an ordinary person would
exercise at the time.” Colville v. Meijer Stores Ltd., 2d Dist. Miami No. 2011-CA-011,
2 In Southview’s brief at page 7, it states that, in the pictures, the track “appears to be raised off the floor.” (Emphasis added). 17
2012-Ohio-2413, ¶ 30, quoting McLain v. Equitable Life Assur. Co. of the U.S., 1st Dist.
Hamilton No. C-950048, 1996 WL 107513, *5 (Mar. 13, 1996). I do not disagree with the law
in this area as set out in the lead and concurring opinions.
{¶ 44} Johnson claims that several attendant circumstances existed, including (1) the
cafeteria employee’s offer of help as Johnson attempted to enter the cafeteria, (2) the personal
items she was holding, (3) the partially open gate, (4) the absence of signs that the cafeteria was
closed, and (5) the absence of signs indicating that the doorway was an exit or that patrons should
watch their step, and that the track was not supposed to be down unless the cafeteria was closed.
{¶ 45} I agree with the trial court’s and the lead opinion’s rejection of some of
Johnson’s arguments regarding individual attendant circumstances, including Johnson’s
argument regarding carrying a purse or planner and many of Johnson’s claims about the need for
signage. However, in my view on this record, Johnson’s understandable confusion about how to
enter the cafeteria (to which she had been directed), the partially closed gate, and the employee’s
offer of assistance to Johnson from inside the cafeteria immediately before Johnson crossed the
threshold of the doorway created a genuine issue of material fact as to whether attendant
circumstances existed that distracted Johnson from the open and obvious hazard created by the
track (assuming it was open and obvious).
{¶ 46} And these circumstances were all in the control of the hospital or its employees.
While perhaps none of these standing alone is an “attendant circumstance,” the combined
circumstances are more than the sum of the individual parts and created a situation where
reasonable minds could disagree about whether this was a regularly encountered or common
circumstance that would reduce the degree of care an ordinary person would exercise under the 18
circumstances. Accordingly, summary judgment on this issue was inappropriate.
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