[Cite as Morris v. Robert S. Donoho Credit Shelter Trust, 2024-Ohio-5426.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
CRAIG MORRIS, : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff - Appellant : Hon. William B. Hoffman, J. : Hon. Craig R. Baldwin, J. -vs- : : ROBERT S. DONOHO CREDIT : Case No. CT2024-0031 SHELTER TRUST., : : Defendant - Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CC2020-0192
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 15, 2024
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
DANIEL N. ABRAHAM CHRISTINE M. DURANEY Colley Shroyer & Abraham Co., LPA 250 W. Old Wilson Bridge Road, Ste. 263 536 South High Street Worthington, Ohio 43085 Columbus, Ohio 43215 Muskingum County, Case No. CT2024-0031 2
Baldwin, J.
{¶1} Appellant Craig Morris appeals the trial court’s decision granting summary
judgment to appellee, the Robert S. Donoho Credit Shelter Trust.
STATEMENT OF THE FACTS AND THE CASE
{¶2} Appellee the Robert S. Donoho Credit Shelter Trust is the owner of a cattle
farm (“Farm”). Mr. Donoho asked Herman Keel to run the Farm, which he did for many
years. Keel initially baled hay and was paid one-third of the proceeds from its sale. In
addition, Keel received a portion of the proceeds from the sale of cattle, which he sold on
behalf of the Farm at the end of each season. He performed additional work for the Farm
as well, for which he billed the Donohos and was paid by check.
{¶3} Following Mr. Donoho’s death, Mrs. Donoho increasingly relied upon Keel
to run the day-to-day operations of the Farm. Mrs. Donoho testified during deposition that
she assumed Keel would do whatever was necessary to run the farm, and that she relied
upon him to make decisions about the operations of the farm. She testified that, for
example, if Keel needed to purchase something for the Farm he would call and tell her
what was needed, and she would approve the purchase. Keel would pay for the purchase,
and he would send her a bill so he could be reimbursed.
{¶4} On the evening of July 23, 2018, Keel asked the appellant if he was
available the next day to help at the Farm with loading cattle. Bryan Vineyard (“Vineyard”)
was a friend of Keel, and owned the trailer into which the cattle were to be loaded.
{¶5} Keel built a system to load the cattle utilizing wooden fencing and pipe gates
to guide the cattle into the trailer. The wooden fence portion of the loading chute, which
took several days to construct, was set up by Keel and two others. The loading chute Muskingum County, Case No. CT2024-0031 3
consisted of the wooden fence and two pipe gates that were used to guide the cattle into
the trailer. The loading chute into which the cattle were being loaded was owned by the
appellee. The supplies that were used to construct the loading chute were purchased by
Keel, who was then reimbursed for the cost by Mrs. Donoho.
{¶6} Keel stood behind the door and waited for Vineyard and the appellant to
“run” the cattle “in,” after which he was going to shut the back door and then open the
middle door and separate the cattle in the trailer to balance out the weight.
{¶7} The appellant and Vineyard walked down to where the cattle were located
in order to herd them around a pond and into the trailer. The entire area was quite muddy
due to rain the day and night before. The appellant and Vineyard herded the cattle
counterclockwise around the pond, along the wooden fence and toward the loading chute
to the stock trailer. The cattle did not, however, go into the trailer. The appellant, who had
turned his back on the cattle to walk away, heard Vineyard yelling to him that “they’re
coming at you.” When the appellant looked up, he saw the cattle “running towards him.”
He “took off running towards the trees” closest to him and, when he went over the
embankment, slipped in the mud and landed on a tree stump with his leg “wrapped around
it.” The appellant testified during deposition that he was aware of the embankment.
Vineyard ran to tell Keel that the appellant had broken his leg and called 9-1-1.
{¶8} Keel was responsible for maintaining the Farm for the appellee, and testified
during deposition that when a tree fell on the property he would dig up the stump with a
backhoe or bulldozer. Keel testified that he was not aware of the stump into which the
appellant fell. Mrs. Donoho also testified during deposition that she had no knowledge the
stump into which the appellant fell was present on the premises. Muskingum County, Case No. CT2024-0031 4
{¶9} On July 15, 2020, the appellant filed a complaint naming the Robert S.
Donoho Credit Shelter Trust and John Does #1-10 as defendants, and setting forth claims
of negligence and premises liability. On August 28, 2023, the appellant filed a motion for
partial summary judgment in which he sought a judgment from the trial court finding
liability on the part of the defendants and scheduling the matter for a damages hearing.
The appellant attached to his motion the affidavit of expert witness Bob Kingsbery.
Kingsbery averred that the appellee was negligent because “the lack of a gate in the
crowding pen made it likely the bulls would be able to leave the pen to avoid being loaded
into the trailer.” In addition, Kingsbery averred that a wood rail loading chute, which did
not allow cattle to turn around once they were loaded into it and made it much safer to
load cattle, was built inside the pen after the appellant was injured, and opined that had
the new chute been in place at the time of the incident the appellant would not have been
injured.
{¶10} The appellee filed a memorandum opposing the appellant’s motion for
partial summary judgment on September 27, 2023; it did not file a cross-motion for
summary judgment. The appellee argued that Keel was an independent contractor, not
an employee of the appellee, and that the appellant worked for Keel. The appellee argued
further that Keel devised the plan for loading the cattle, which the appellant did not
question. In addition, the appellee argued that the appellant was aware of the slippery
nature of the ground on which he was working, as he testified that Keel remained at the
door of the trailer in order to shut the door after the cattle were loaded because he was
almost 90 years old, and the appellant and Vineyard “didn’t want Keel walking around in
all of the mud because of how slick it was.” Muskingum County, Case No. CT2024-0031 5
{¶11} The trial court granted summary judgment in favor of the appellee, despite
the fact that it had not filed a cross-motion for summary judgment. The trial court held that
the appellant’s expert witness erroneously stated in his report that the wooden loading
chute was constructed after the appellant’s accident, when in fact the loading system
utilizing the wooden fence and pipe gates was constructed prior to the accident and
utilized on the day of the incident. This, according to the trial court, represented a material
mistake in the expert’s report. The trial court held that because the appellant’s expert
opined that if the new chute been in place at the time of the incident the appellant would
not have been injured, the fact that the chute was in place at the time of the incident
vitiated his opinion on liability. The trial court found that the hazards that led to the
appellant’s injuries were open and obvious, and entered summary judgment in favor of
the appellee.
{¶12} The appellant filed a timely notice of appeal, and sets forth the following
assignments of error:
{¶13} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
TO THE DONOHO TRUST WHEN THE DONOHO TRUST HAD NOT MOVED FOR
SUMMARY JUDGMENT.”
{¶14} “II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
WHERE THERE WERE MATERIAL ISSUES OF FACT TO BE DETERMINED.”
{¶15} The appellant argues that the trial court erred in granting summary judgment
to the appellee despite the fact that it did not file a motion, and that it erred in granting
summary judgment because material issues of fact existed precluding judgment. We
disagree. Muskingum County, Case No. CT2024-0031 6
STANDARD OF REVIEW
{¶16} Summary judgment proceedings present the appellate court with the unique
opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v.
The Wedding Party, Inc., 30 Ohio St.3d 35, 36 (1987). Accordingly, this Court reviews a
trial court’s award of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio
St.3d 102, 105 (1996).
{¶17} Civ. R. 56(C) states in pertinent part: “Summary Judgment shall be
rendered forthwith if the pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any,
timely filed in the action, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law ... A summary judgment
shall not be rendered unless it appears from such evidence or stipulation, and only from
the evidence or stipulation, 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, that party being entitled to have the evidence or stipulation construed most
strongly in the party's favor." Thus, summary judgment may be granted only after the trial
court determines that: 1) no genuine issues as to any material fact remain to be litigated;
2) the moving party is entitled to judgment as a matter of law; and 3) it appears from the
evidence that reasonable minds can come to but one conclusion and viewing such
evidence most strongly in favor of the party against whom the motion for summary
judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc.,
50 Ohio St.2d 317 (1977). Muskingum County, Case No. CT2024-0031 7
{¶18} As this Court stated in Infield v. Westfield Ins. Co., 2023-Ohio-1199 (5th
Dist.):
It is well established that the party seeking summary judgment bears
the burden of demonstrating no issues of material fact exist for trial. Celotex
Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The standard for granting summary judgment is delineated in Dresher v.
Burt, 75 Ohio St.3d 280 at 293, 662 N.E.2d 264 (1996): “* * * a party seeking
summary judgment, on the ground that the nonmoving party cannot prove
its case, 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. The moving party cannot discharge its initial
burden under Civ.R. 56 simply by making a conclusory assertion the
nonmoving party has no evidence to prove its case. Rather, the moving
party must be able to specifically point to some evidence of the type listed
in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has
no evidence to support the nonmoving party's claims. If the moving party
fails to satisfy its initial burden, the motion for summary judgment must be
denied. However, if the moving party has satisfied its initial burden, the
nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to
set forth specific facts showing 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.” The record on summary judgment Muskingum County, Case No. CT2024-0031 8
must be viewed in the light most favorable to the opposing party. Williams
v. First United Church of Christ, 37 Ohio St.2d 150, 309 N.E.2d 924 (1974).
Id. at ¶ 21.
ANALYSIS
Assignment of Error Number Two
{¶19} We will first address the appellant’s second assignment of error, whether
the appellee was entitled to summary judgment, reversing the order of the assignments
of error in order to avoid unnecessary duplication.
{¶20} The appellant has asserted that the appellee was negligent. Thus, the
appellant must show a duty on the part of appellee to protect the appellant from injury; a
breach of that duty; and, an injury proximately resulting from the breach. Jeffers v. Olexo,
43 Ohio St.3d 140, 142, (1989). A premises liability case sounds in negligence. This Court
addressed negligence in the context of premises liability in the case of Carpenter v. Mt.
Vernon Gateway, Ltd., 2014-Ohio-465 (5th Dist.):
In a premises liability case, the relationship between the owner or
occupier of the premises and the injured party determines the duty owed.
Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312,
315, 1996–Ohio–137, 662 N.E.2d 287; Shump v. First Continental–
Robinwood Assocs., 71 Ohio St.3d 414, 417, 644 N.E.2d 291 (1994). Ohio
adheres to the common-law classifications of invitee, licensee, and
trespasser in cases of premises liability. Shump, supra; Boydston v. Norfolk
S. Corp., 73 Ohio App.3d 727, 733, 598 N.E.2d 171, 175 (4th Dist.1991). Muskingum County, Case No. CT2024-0031 9
There is no dispute between the parties that on October 2, 2010,
Mrs. Carpenter was a business invitee. An invitee is defined as a person
who rightfully enters and remains on the premises of another at the express
or implied invitation of the owner and for a purpose beneficial to the owner.
Broka v. Cornell's IGA Foodliner Inc., 5th Dist. No. 12CA100, 2013–Ohio–
2506, ¶ 20 citing Gladon, supra at 315. The owner or occupier of the
premises owes the invitee a duty to exercise ordinary care to maintain its
premises in a reasonably safe condition, such that its invitees will not
unreasonably or unnecessarily be exposed to danger. Paschal v. Rite Aid
Pharmacy, Inc., 18 Ohio St.3d 203, 480 N.E.2d 474 (1985). A premises
owner must warn its invitees of latent or concealed dangers if the owner
knows or has reason to know of the hidden dangers. See Jackson v. Kings
Island 58 Ohio St.2d 357, 358, 390 N.E.2d 810 (1979). However, a
premises owner is not an insurer of its invitees' safety against all forms of
accidents that may happen. Paschal, supra at 204. 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, 623 N.E.2d 1175 (1993); Sidle
v. Humphrey 13 Ohio St.2d 45, 233 N.E.2d 589 (1968), paragraph one of
the syllabus.
Id. at ¶¶ 19-20. The activity in which the appellant was engaged benefitted the property
owner, and he is therefore an invitee for purposes of our analysis.
{¶21} Under Ohio law, a landowner owes no duty to protect an invitee from
dangers which are known to the invitee, or are so obvious and apparent to the invitee that Muskingum County, Case No. CT2024-0031 10
he may be reasonably expected to discover them and protect himself against them. The
Ohio Supreme Court has held that a premises owner owes no duty to persons entering
the premises regarding dangers that are open and obvious. Armstrong v. Best Buy
Company, Inc., 2003-Ohio-2573, paragraph 5 of the syllabus, quoting Sidle v. Humphrey,
13 Ohio St.2d 45 (1968), paragraph 1 of the syllabus. The rationale of the open and
obvious doctrine is that the open and obvious nature of the hazard itself serves as a
warning, so owners may reasonably expect their invitees to discover the hazard and take
appropriate measures to protect themselves against it. Simmers v. Bentley Constr. Co.,
64 Ohio St.3d 642, 644, (1992).
{¶22} When considering whether a condition is open and obvious, the court must
consider the nature of the condition itself, not the plaintiff's conduct in encountering the
condition. Knight v. Hartville Hardware, Inc., 2016-Ohio-1074, ¶ 18 (5th Dist.), citing
Jacobsen v. Coon Restoration & Sealants, Inc., 2011-Ohio-3563, ¶ 18 (5th Dist.). The
dangerous condition at issue does not actually have to be observed by the plaintiff to be
an open and obvious condition under the law. Kraft v. Johnny Biggs Mansfield, LLC, 2012-
Ohio-5502, ¶ 16 (5th Dist.). The determinative issue is whether the condition is
observable. Id.
{¶23} The landowner's duty is not to be determined by questioning “whether the
[condition] could have been made perfect or foolproof. The issue is whether the conditions
which did exist were open and obvious to any person exercising reasonable care and
watching where she was going.” Jackson v. Pike Cty. Bd. Of Commrs., 2010-Ohio-4875,
¶ 18 (4th Dist.). Muskingum County, Case No. CT2024-0031 11
{¶24} In the case sub judice, the hazards of being around cattle is observable, as
was the muddy condition of the paddock. These conditions existed and were open and
obvious to any person exercising reasonable care and watching where he was going. The
appellant turned his back on the cattle while in a muddy paddock. This conduct is not
indicative of a person exercising reasonable care for his own personal safety. The trial
court properly granted summary judgment to the appellee, and the appellant’s second
assignment of error is overruled.
Assignment of Error Number One
{¶25} In his first assignment of error the appellant argues that the trial court erred
in granting summary judgment to the appellee when it did not file a motion for summary
judgment. We disagree.
{¶26} The Ohio Supreme Court addressed this issue in Ohio State Bar
Association v. Watkins Global Network, 2020-Ohio-169, stating “…although respondents
failed to timely file a cross-motion for summary judgment, we further conclude that
summary judgment should be granted in favor of respondents on the remaining claims.”
Id. at ¶22. In support of its finding, the Court cited to its earlier case of State ex rel.
Cuyahoga Cty. Hosp. v. Ohio Bur. of Workers’ Comp., 27 Ohio St.3d 25 (1986), in which
the Court stated: “ ‘While Civ.R. 56 does not ordinarily authorize courts to enter summary
judgment in favor of a non-moving party,’ summary judgment in favor of the nonmovant
may be proper, and does not prejudice due-process rights, when ‘all relevant evidence is
before the court, no genuine issue as to any material fact exists, and the non-moving
party is entitled to judgment as a matter of law.’” Id. at 28. Muskingum County, Case No. CT2024-0031 12
{¶27} This case is, despite the red herrings, a premises liability case at its core.
The evidence properly before the trial court establishes that Keel constructed a loading
chute on the appellee’s property utilizing the wooden fence and pipe gates; and, that the
appellant’s expert based his opinion on liability on the mistaken belief that the loading
chute was not built until after the appellant’s injury – opining that “had the new chute been
in place, [the appellant] would not have been injured.” Furthermore, the evidence
establishes that the hazards at issue, the cattle and the muddy conditions in the paddock,
were open and obvious. As such, the trial court properly found it appropriate to award
summary judgment to the appellee, even as a non-moving party. The appellant’s
assignment of error number one is, therefore, overruled.
CONCLUSION
{¶28} Based upon the foregoing, the appellant’s assignments of error numbers
one and two are without merit, and the decision of the Muskingum County Court of
Common Pleas is hereby affirmed.
By: Baldwin, J.
Delaney, P.J. concur.
Hoffman, J. dissents. Muskingum County, Case No. CT2024-0031 13
Hoffman, J., dissenting
{¶29} I respectfully dissent from the majority opinion. The trial court and the
majority find Appellant’s expert’s opinion on liability contained a material mistake as to
when the wood rail loading chute was installed. Appellant contends the fact Mrs. Donoho
authenticated a check written to Mr. Keel, which she testified was for a new cattle chute,
and said check was dated more than a year after the stampede, creates a genuine issue
of disputed fact. (Donoho Dep. 64: 5-14, Ex. 31). When viewed most favorably for
Appellant, as is required by Civ.R. 56, I find this evidence sufficient to create a genuine
dispute as to when the wood rail loading chutes came into existence, and therefore, the
expert opinion of Kingsberry was improperly rejected as evidence. Such disputed fact
disqualifies use of the exception to the general rule prohibiting entering summary
judgment in favor of a non-moving party.
{¶30} Accordingly, I would sustain Appellant’s first assignment of error.
{¶31} Although arguably premature given my proposed disposition of Appellant’s
first assignment of error, I do wish to comment on the trial court’s and majority’s
conclusion the open and obvious doctrine bars Appellant’s claims in this case.
{¶32} The trial court found the hazards that resulted in Appellant’s injuries were
open and obvious. The majority finds likewise, stating being around cattle is an
observable hazard, as was the muddy condition of the padlock, and noting Appellant
turned his back on the cattle which was indicative of a lack of care on Appellant’s part. I
contend any issue regarding assumption of the risk or contributory negligence on
Appellant’s part were not the basis for the trial court’s decision or issues briefed to this Muskingum County, Case No. CT2024-0031 14
Court, and consideration of those affirmative defenses ought best be left for the trier-of-
fact.
{¶33} The fact herding cattle can be a dangerous activity does not directly bear
on the issue of whether a hazard is open and obvious. The fact the padlock was muddy
was, in fact, the precipitating cause of Appellant’s injury. Appellant slipped while
descending an embankment because he was running to avoid the stampeding cattle.
Appellant claims the defective design of the padlock for the loading of the cattle was the
alleged reason for the stampede. I submit the fact the padlock and embankment were
muddy, and obviously slippery, is a red herring to the primary cause of Appellant’s injury.
{¶34} I would reverse the trial court’s grant of summary judgment in favor of
Appellee.