Kemme v. Seltzer Holdings, L.L.C.

2020 Ohio 3142

• Court: Ohio Court of Appeals
• Decided: June 1, 2020
• Docket: CA2019-10-182
• Status: Published

Opinion

[Cite as Kemme v. Seltzer Holdings, L.L.C., 2020-Ohio-3142.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

CHARLENE KEMME, : CASE NO. CA2019-10-182

Appellant, : OPINION 6/1/2020 : - vs - :

SELTZER HOLDINGS, LLC, et al., :

Appellees. :

CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV2019-04-0770

O'Connor, Acciani & Levy, LPA, Kory A. Veletean, Amanda L. Patton, 600 Vine Street, Suite 1600, Cincinnati, Ohio 45202, for appellant

John K. Benintendi, P.O. Box 145496, Cincinnati, Ohio 45250-5496, for appellees

M. POWELL, J.

{¶ 1} Appellant, Charlene Kemme, appeals a decision of the Butler County Court

of Common Pleas granting summary judgment in favor of appellee, Seltzer Holdings LLC,

in a slip and fall action.

{¶ 2} Kemme and her husband visited The Show on 42, a restaurant operated by

Seltzer Holdings, on May 17, 2017. The couple entered the restaurant through a door from Butler CA2019-10-182

a deck at the back of the restaurant. As she entered, Kemme's shoe hit a rise in the

threshold between the deck and the inside of the restaurant, and Kemme fell.

{¶ 3} Kemme filed a complaint against Seltzer for injuries she sustained as a result

of the fall. Seltzer moved for summary judgment and the trial court granted the motion on

the basis that the defect was open and obvious. Kemme now appeals the trial court's

decision to grant summary judgment to Seltzer, raising the following assignment of error for

our review.

{¶ 4} THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR SUMMARY

JUDGMENT IN FAVOR OF THE APPELLEE.

{¶ 5} Summary judgment is a procedural device used to terminate litigation and

avoid a formal trial when a case presents no triable issues. Roberts v. United Dairy

Farmers, Inc., 12th Dist. Butler No. CA2014-03-066, 2014-Ohio-3881, ¶ 7. Summary

judgment is properly granted only when there remains no genuine issue of material fact

and, when construing the evidence most strongly in favor of the nonmoving party,

reasonable minds can only conclude that the moving party is entitled to judgment as a

matter of law. Civ.R. 56(C); Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, ¶ 10. An

appellate court reviews a trial court's decision on a motion for summary judgment de novo,

independently, and without deference to the decision of the trial court. Flagstar Bank, FSB

v. Sellers, 12th Dist. Butler No. CA2009-11-287, 2010-Ohio-3951, ¶ 7.

{¶ 6} The party moving for summary judgment bears the initial burden of informing

the court of the basis for the motion and demonstrating the absence of a genuine issue of

material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). Once this burden is met, the

nonmoving party has a reciprocal burden to set forth specific facts showing there is a

genuine issue of material fact remaining for the trial court to resolve. Id.

{¶ 7} On appeal, Kemme argues that the trial court erred in granting summary

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judgment because genuine issues of material fact exist regarding 1) whether the defect was

trivial/insubstantial; 2) the applicability of the open and obvious doctrine; and 3) whether

appellant was prejudiced by the spoliation of evidence.

{¶ 8} Kemme first argues the trial court erred in granting summary judgment

because there are genuine issues of material fact regarding whether the rise in the door

threshold was a trivial defect/insubstantial hazard. The Ohio Supreme Court has

determined 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. Cash v. Cincinnati, 66 Ohio St.2d 319 (1981).

{¶ 9} Included with Seltzer's motion for summary judgment was an affidavit from

Mike Seltzer, the owner of Seltzer Holdings, that he had measured the height of the door

opening and the difference was no greater than two inches. In response, Kemme attached

the affidavit of her expert, David Collette, who stated that the elevation deviation was two-

and-a-half inches. Kemme therefore argues that there is a genuine issue of material fact

relating to the height of the door's threshold.

{¶ 10} However, the trial court did not base its decision to grant summary judgment

on this principle of law. Instead, the trial court noted that the parties "expend[ed] a great

deal of energy debating the height of the threshold" in light of the Cash decision, but stated

that even if Kemme's measurement were accepted, Seltzer would still be entitled to

judgment as a matter of law based on the open and obvious doctrine.

{¶ 11} Kemme's second argument on appeal focuses on the issue of the applicability

of the open and obvious doctrine to the facts of this case. In a negligence action, the plaintiff

must establish (1) the defendant owed the plaintiff a duty of care, (2) the defendant

breached the duty of care, and (3) as a direct and proximate result of defendant's breach,

plaintiff was injured. Anderson v. Jancoa Janitorial Servs., 12th Dist. Butler No. CA2019-

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01-018, 2019-Ohio-3617, ¶ 24.

{¶ 12} A premises owner or occupier has a duty to exercise ordinary care to maintain

its premises in a reasonably safe condition, such that business invitees will not

unreasonably or unnecessarily be exposed to danger. Paschal v. Rite Aid Pharmacy, Inc.,

18 Ohio St.3d 203 (1985). The business owner has a duty to warn invitees of latent or

concealed dangers the owner knows of, or has reason to know of, that invitees would not

expect to discover or protect against. Baker v. Meijer Stores L.P., 12th Dist. Warren No.

CA2008-11-136, 2009-Ohio-4681, ¶ 27.

{¶ 13} However, a business owner or occupier is not the insurer of an invitee's safety.

Id.; Anderson at ¶ 25. The business owner has no duty to warn of open and obvious

hazards. Roberts, 2014-Ohio-3881 at ¶ 9. Instead, invitees are expected to take

reasonable precautions to avoid dangers that are patent or obvious. See Brinkman v. Ross,

68 Ohio St.3d 82, 84, (1993). The rationale behind this rule is that "the open and obvious

nature of the hazard itself serves as a warning." Id. at ¶ 5. When the open and obvious

doctrine applies, it obviates the duty to warn and acts as a complete bar to any negligence

claims. Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 2003-Ohio-2573, ¶14; Wulf v. Bravo

Brio Restaurant Group, Inc., 12th Dist. Butler No. CA2018-12-238, 2019-Ohio-3434, ¶ 22.

{¶ 14} When deciding whether a condition is open and obvious, "the determinative

question is whether the condition is discoverable or discernible by one who is acting with

ordinary care under the circumstances." Williamson v. Geeting, 12th Dist. Preble No.

CA2011-09-011, 2012-Ohio-2849, ¶ 18. This determination is an objective one and

therefore, "a dangerous condition does not actually have to be observed by the claimant to

be an open and obvious condition under the law." Gentry v. Collins, 12th Dist. Warren No.

CA2012-06-048, 2013-Ohio-63, ¶ 21. Rather the determinative issue is whether the

condition is observable to a reasonable person. Roberts v. United Dairy Farmers, Inc., 12th

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Dist. Butler No. CA2014-03-066, 2014-Ohio-3881, ¶ 10; McQueen v. Kings Island, 12th

Dist. Warren No. CA2011-11-117, 2012-Ohio-3539, ¶ 25.

{¶ 15} As mentioned above, on summary judgment, we must construe the facts in

the non-movant's favor. Kemme testified at a deposition that she had been to the restaurant

before but had not previously entered the establishment through the back entrance.

Kemme walked up a set of stairs on the side of the building, then walked across the wooden

deck to a set of double-doors on the other end of the deck. The doors were on Kemme's

left side as she walked across the deck. The right door was propped open, while the left

side was shut. According to Kemme, a rug was across the entryway of the right door,

partially inside and partially outside. The toe of Kemme's shoe hit the bottom of the

threshold as she entered and she fell.

{¶ 16} Kemme's husband, who is legally blind, was following her but did not observe

his wife's fall. He stated that he did not look down at the threshold as he entered because

he typically enters a doorway by feeling where the frame is and lifting his foot up.

{¶ 17} Kemme testified that the weather was nice and that the deck was dry. There

were no lighting issues and the deck was big and not crowded. She indicated that nothing

diverted her attention as she approached the door and nothing obstructed her view of the

door as she approached. She does not recall if she looked down as she entered the

doorway. Seltzer submitted photographs of the doorway with the doors open and a rug in

various positions, including as described by Kemme in her deposition. Although the rug

covers the doorway in the photographs, a lump, or large bump is observable.

{¶ 18} Based on our review, we find the trial court did not err in determining that the

condition was open and obvious. A height difference in the threshold of a door is a usual

and typical circumstance that a reasonable person would expect to encounter and protect

against, particularly when it is an exterior doorway crossing from outside to inside. The

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doorway in this case is one unit with two doors. The height difference between the threshold

and deck is observable. Although the rug covered the right side of the doorway, which was

open, a lump or bump was still observable. See McCoy v, Wasabi House LLC., 5th Dist.

Stark No. 2017CA00098, 2018-Ohio-182 (defect covered by rug open and obvious when

observable). Moreover, the height difference was also observable from the left door which

was part of the door unit and was not covered by the rug.

{¶ 19} Kemme walked across the deck, from the opposite side, before encountering

the door. The weather and lighting were good, the deck was dry and nothing obscured

Kemme's view of the door as she approached. She passed the left door and attempted to

walk through the open right door. Kemme did not indicate that anything inside the

restaurant distracted her prior to entering the door. Given these facts, we find the condition

was one which was expected and was observable to a reasonable person.

{¶ 20} The fact that the danger may have been easier to perceive without the rug, or

with warning strips or signs, does not negate the fact that the danger was still appreciable

to a reasonable person. Other courts have determined that despite being covered by rugs,

conditions were still open and obvious. See Lowe v. Local Union No. 14 U.A.W., 6th Dist.

Stark No. L-19-1042, 2020-Ohio-703; McCoy, 2018-Ohio-182. This is particularly true

where the danger of a height difference in a threshold, as discussed above, is a danger one

would typically expect in an exterior doorway. Therefore, the trial court did not err in

determining that the condition was open and obvious.

{¶ 21} Finally, Kemme argues that the trial court erred in deciding her claim for the

spoliation of evidence. The Ohio Supreme Court has recognized the elements of such a

claim as "(1) pending or probable litigation involving the plaintiff, (2) knowledge on the part

of defendant that litigation exists or is probable, (3) willful destruction of evidence by

defendant designed to disrupt the plaintiff's case, (4) disruption of the plaintiff's case, and

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(5) damages proximately caused by the defendant's acts." Smith v. Howard Johnson Co.,

Inc., 67 Ohio St.3d 28, 29 (1993); Elliott-Thomas v. Smith, 154 Ohio St.3d 11, 2018-Ohio-

1783, ¶ 10.

{¶ 22} The restaurant had several video cameras operating on the day of the

accident. According to Seltzer's answers to interrogatories, Mike and Ben Seltzer viewed

the video feed from the date of the accident, but the video system re-recorded over itself.

Kemme claims that destruction of this video hindered her ability to establish who placed the

rug over the door and how long the rug had been there. The trial court found that Kemme

presented sufficient evidence of the first and second elements of a spoliation claim, but

failed to present evidence of the remaining elements. We find the trial court did not err in

this determination.

{¶ 23} Viewing the evidence in a light favorable to Kemme, she presented evidence,

based solely on interrogatories, that there were cameras recording, one of the cameras is

"near the rear door in which Plaintiff entered" and that Seltzer's agents viewed the video

and the video then re-recorded itself. Kemme failed to depose Seltzer's agents or present

any other evidence in support of her spoliation claim to show that the actions were willful or

an attempt to disrupt her case.

{¶ 24} Moreover, on appeal, Kemme claims the evidence would have been favorable

in determining who placed the rug and how long it had been there. However, as discussed

above, even viewing the evidence in a light most favorable to Kemme, the condition was

open and obvious. A determination that a condition is open and obvious negates the duty

element of a negligence claim and acts as a complete bar to recovery. See Armstrong, 99

Ohio St.3d 79, 2003-Ohio-2573 at ¶ 14. Therefore, Kemme cannot establish disruption of

her case or damages caused by the spoliation of evidence.

{¶ 25} In conclusion, we find no merit to Kemme's arguments on appeal and

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therefore find that the trial court did not err in granting summary judgment.

{¶ 26} Judgment affirmed.

HENDRICKSON, P.J., concurs.

RINGLAND, J., concurs in part and dissents in part.

RINGLAND, J., concurring in part and dissenting in part.

{¶ 27} I respectfully dissent from the majority's decision. In this case, reasonable

minds could differ as to whether the raised threshold that Kemme tripped over was an open

and obvious condition, as it was hidden beneath a large black mat. Therefore, I would find

the trial court erred by granting summary judgment in favor of Seltzer Holdings LLC on

Kemme's negligence claim.

{¶ 28} For a hazard to be considered open and obvious it must be "in plain view and

readily discoverable upon ordinary inspection." Forste v. Oakview Constr, Inc., 12th Dist.

Warren No. CA2009-05-054, 2009-Ohio-5516, ¶ 16 (Emphasis added), citing Parsons v.

Lawson Co., 57 Ohio App.3d 49, 51 (12th Dist.1989); see also Barnett v. Beazer Home

Invests., L.L.C., 180 Ohio App.3d 272, 2008-Ohio-6756, ¶ 32 (12th Dist.). "The crucial

inquiry is whether an invitee exercising ordinary care would have seen and been able to

guard against the condition." Zitron v. Sweep-A-Lot, 10th Dist. Franklin No. 09AP-1110,

2010-Ohio-2733, ¶ 11; Kidder v. Kroger Co., 2d Dist. Montgomery No. 20405, 2004-Ohio-

4261, ¶ 11. However, while customers, as invitees, are expected to exercise ordinary care

when walking through a store, "the law does not require them to 'look constantly

downward.'" Mohn v. Wal-Mart Stores, Inc., 3d Dist. Hardin No. 6-08-12, 2008-Ohio-6184,

¶ 14, quoting Grossnickle v. Germantown, 3 Ohio St.2d 96 (1965), paragraph two of the

syllabus.

{¶ 29} In the present case, Kemme testified that she entered The Show on 42 from -8- Butler CA2019-10-182

an outdoor deck and tripped on an elevated door threshold causing her to fall into the

restaurant. As depicted in photographs, the entryway is a set of double doors with a raised

threshold. According to Kemme, the door to the left side was shut while the right door was

propped open. When she entered, Kemme's shoe hit the bottom of the raised threshold

causing her fall.

{¶ 30} There is no doubt that a raised threshold can constitute an open and obvious

danger. However, in this case, the raised threshold was neither open nor obvious because

it was concealed by a large black mat covering the floor both inside and outside the

restaurant.

{¶ 31} In granting summary judgment in favor of Seltzer, the trial court emphasized

deposition testimony where Kemme stated that she tripped on a clear and sunny day and

that she "probably" would have seen the deviation in height on the left door had she looked

down on the day of the accident.1 In addition, the trial court also pointed out that Kemme's

husband entered from the same point without incident. The trial court found that to be

significant because Kemme's husband testified that he is "legally blind."

{¶ 32} However, I believe the candid answer that Kemme provided months after the

accident is not an admission that the raised threshold was an open and obvious hazard.

Rather, Kemme's after-the-fact testimony is another example of the "Catch-22" that plaintiffs

face in slip and fall cases. That is, between application of the "notice" defense and the

"open and obvious" defense there is "no duty" for either visible or invisible hazards. See,

e.g., Roberts v. United Dairy Farmers, Inc., 12th Dist. Butler No. CA2014-03-066, 2014-

Ohio-3881, ¶ 21 (Piper, J., dissenting); Capella v. Historic Developers, L.L.C., 12th Dist.

Butler No. CA2017-07-109, 2018-Ohio-546, ¶ 71 (Ringland, J., dissenting in part). This is

1. It bears repeating that Kemme entered the right-side door and testified that the left-side door was closed at the time of the accident. -9- Butler CA2019-10-182

particularly concerning in this case because the large black mat obscured and blended the

view of the threshold. See, e.g., Durham v. Major Magic's All Star Pizza Revue, Inc., 6th

Dist. Lucas No. L-04-1192, 2005-Ohio-1029, ¶ 16 (genuine issue of material fact precludes

summary judgment when the surface and the object on which a plaintiff falls are of the same

color).

{¶ 33} Furthermore, I do not find evidence that Kemme's legally blind husband

entered the restaurant without incident is a particularly compelling fact in this case. It is

apparent that an individual without the ability to see must navigate his surroundings much

differently than someone with sight. That a legally blind person navigated an entrance

without incident is not suggestive that a condition is "in plain view and readily discoverable

upon ordinary inspection." Forste, 2009-Ohio-5516 at ¶ 16.

{¶ 34} Finally, although I concur with the outcome of this matter with regard to the

independent tort of intentional spoliation of evidence, I am troubled by the fact that several

individuals associated with The Show of 42 were able to view recorded footage of the

incident, only for the parties to later discover that evidence deleted or possibly taped over.

{¶ 35} As correctly identified by the majority, the tort of intentional spoliation of

evidence has five elements: "'(1) pending or probable litigation involving the plaintiff, (2)

knowledge on the part of defendant that litigation exists or is probable, (3) willful destruction

of evidence by defendant designed to disrupt the plaintiff's case, (4) disruption of the

plaintiff's case, and (5) damages proximately caused by the defendant's acts.'" Elliott-

Thomas v. Smith, 154 Ohio St.3d 11, 2018-Ohio-1783, ¶ 10, quoting Smith v. Howard

Johnson Co., Inc., 67 Ohio St.3d 28, 29 (1993).

{¶ 36} The majority resolves this issue, in part, by concluding that Kemme "cannot

establish disruption of her case or damages caused by the spoliation of evidence" because

of the open and obvious nature of the condition. Since I do not believe summary judgment

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should have been granted in favor of Seltzer on the open and obvious defense, I would also

not find that summary judgment is appropriate for Kemme's spoliation claim on that basis.

Nevertheless, I agree that Kemme failed to provide any evidence, through deposition or

otherwise, that there was a "willful destruction of evidence." Since Kemme did not provide

evidence to satisfy all five elements, her claim must fail.

{¶ 37} Based on the facts of this case, and in light of the cases cited above, I believe

there is a genuine issue of material fact as to whether the large black mat concealed the

raised threshold that caused Kemme's fall. Therefore, I would reverse and remand the

negligence action, but affirm, for different reasons, on the intentional spoliation of evidence

claim. With regard and respect for my colleagues, I must respectfully dissent in part and

concur in part.

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