Lazzara v. Mark Glassman, Inc.

667 N.E.2d 1275, 107 Ohio App. 3d 163

• Court: Ohio Court of Appeals
• Decided: October 30, 1995
• Docket: No. 68404.
• Status: Published

Opinions

Per Curiam.

Pamela Lazzara, plaintiff-appellant, appeals from the trial court’s decision granting summary judgment in favor of Marc Glassman, Inc., defendant>appellee. Lazzara assigns the following:

“The lower court erred in finding that there was no genuine issue of material fact.”

For the reasons set forth below, we affirm the decision of the trial court.

On August 16, 1993, Pamela Lazzara was shopping in the defendant’s store, Marc’s. She came upon toilet tissue stacked in cardboard boxes one on top of another and against the wall of the store. She described the boxes as being stacked so high they almost reached the ceiling and estimated the stack to be nine boxes high. The front of each box was cut open and contained cellophane packages with four rolls of toilet tissue in each package.

Lazzara reached into a box at the level of her chin; she is 5'4" in height, and she estimated there were six boxes stacked on top of the one she reached into. The box was half empty and on one side of that same box the packages were stacked from the top to the bottom of the inside of the box. She took a package of toilet tissue facing the front of the box; it was on top of another package, but was not touching the top of the inside of the box.

Immediately after she took the package of toilet tissue from the box, someone in the store screamed. Lazzara looked up and saw a box from the top of the stack falling; the whole stack of boxes fell from above. She was struck between ten and twelve times mostly on her right side and the right side of her face, but remained standing.

Prior to August 16, 1993, Lazzara observed toilet tissue stacked very high in Marc’s and wondered how they stacked it so high. She never thought of the stack of boxes as unstable; “[she] just figured it was okay.”

Lazzara filed an action for negligence against Marc’s. Marc’s moved for summary judgment. The motion was granted and this appeal followed.

The sole issue on appeal is whether Marc’s had a duty of care to protect or warn Pamela Lazzara of the danger created from the stacked boxes of toilet tissue in view of the “open and obvious” doctrine. The doctrine is premised upon the notion that a property owner is not an insurer of a business invitee’s safety. Hurtuk v. Lassiter (July 21, 1994), Cuyahoga App. No. 66834, unreported, 1994 WL 386004.

“The ‘open and obvious’ doctrine states that an owner or occupier of property owes no duty to warn invitees entering the property of open and obvious dangers on the property. Sidle v. Humphrey (1968), 13 Ohio St.2d 45, 42 O.O.2d 96, 233 N.E.2d 589, at paragraph one of the syllabus; Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203, 18 OBR 267, 480 N.E.2d 474. The rationale behind the doctrine is that the open and obvious nature of the hazard itself serves as a warning. Thus, the owner or occupier may reasonably expect that persons entering the premises will discover those dangers and take appropriate measures to protect themselves. Sidle, supra. ” Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d 642, 644, 597 N.E.2d 504, 506. See, also, Frajt v. Goodwill Industries of Greater Cleveland (1986), 33 Ohio App.3d 92, 514 N.E.2d 719 (held display of entangled elastic belts open and obvious danger.)

In this case, Lazzara observed the boxes stacked too high and wondered to herself how employees of Marc’s were able to stack them so high. Nonetheless, she pulled a package of toilet tissue from the middle of the stack of boxes. The only evidence presented for or against summary judgment was Lazzara’s deposition testimony, and it clearly demonstrates that the danger from the stacked boxes of toilet tissue was open and obvious.

Accordingly, Marc’s was not the insurer of Lazarra’s safety, and had no duty to protect Lazzara from or warn her about the open and obvious danger from the stacked boxes of toilet tissue, and Marc’s was entitled to judgment as a matter of law. Therefore, we hold the trial court properly granted summary judgment.

Judgment affirmed.

Patton, P.J., and Patricia A. Blackmon, J., concur. Karpinski, J., dissents.