Pantona v. Ervieview Land Co., L.L.C.

2020 Ohio 5333

• Court: Ohio Court of Appeals
• Decided: November 19, 2020
• Docket: 109228
• Status: Published

Opinion

[Cite as Pantona v. Ervieview Land Co., L.L.C., 2020-Ohio-5333.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

PHYLLIS PANTONA, :

Plaintiff-Appellant, : No. 109228 v. :

ERIEVIEW LAND COMPANY L.L.C., :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: November 19, 2020

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-19-910559

Appearances:

Morganstern, MacAdams & DeVito Co., L.P.A., and Christopher M. DeVito, for appellant.

Law Offices of Diana Lee Khachaturian and John D. Rodman, for appellee.

MICHELLE J. SHEEHAN, J.:

Plaintiff-appellant Phyllis Pantona (“Pantona”) appeals from a

judgment of the Cuyahoga County Court of Common Pleas that granted summary

judgment in favor of defendant-appellee Erieview Land Company L.L.C. (“Erieview”). After a careful review of the record and applicable law, we conclude a

genuine issue of material fact exists as to whether the open-and-obvious doctrine

applies to bar plaintiff’s recovery in this slip-and-fall case and, therefore, reverse the

judgment of the trial court.

Substantive and Procedural Background

Erieview is the owner and operator of an office tower known as the

Galleria. On March 24, 2017, Pantona came down the escalator to go to the attached

parking garage. She fell while stepping off the escalator lobby’s platform curb and

sustained injuries to her left knee. On February 4, 2019, she filed a complaint

against Erieview, alleging negligence based on premises liability and gross

negligence and seeking compensatory and punitive damages.

Erieview moved for summary judgment, claiming the six-inch

elevation change in the escalator lobby’s platform curb encountered by Pantona was

open and obvious and, as such, Erieview did not owe her a duty of care. Erieview

also argued summary judgment was warranted because Pantona could not identify

why she fell. Erieview attached Pantona’s deposition testimony to support it motion.

Pantona opposed Erieview’s motion for summary judgment. The

exhibits submitted in support of her opposition included (1) an incident report she

filled out immediately after the incident with a security company associated with the

parking garage, (2) the security company’s own report describing the incident,

(3) an internal report prepared by Erieview’s property management representative, David Clark, (4) Pantona’s own affidavit, and (5) the report and affidavit of her

expert, an architect.

In the incident report Pantona filled out immediately after the

incident, she stated she was walking out from the escalator lobby and fell from the

platform on her left knee. The security company’s report stated that Pantona went

down the escalator to go the garage and, when she exited the escalator lobby door,

she fell off the platform on her left knee. The report included a picture of the

platform curb where Pantona fell.

In the internal report prepared by Clark several days after the incident,

he described the incident as follows: Pantona rode the escalator to the garage level

and exited the escalator lobby through the door; she proceeded across the raised

platform and allegedly fell stepping off the curb; the curb height is 6” and the edge

and front of the curb is painted with safety yellow paint. Clark’s report also indicated

Pantona complained that “there should be signs posted warning people of the step

down.”

Pantona’s affidavit stated that when she left the Erieview tower, she

used the escalator to access the parking garage. When exiting the escalator lobby,

she went through the lobby’s glass door onto a platform; while walking out from the

escalator glass door, she fell from the platform on her left knee onto the parking

garage floor. She averred that “[t]he change in elevation from the escalator lobby

platform to the parking garage floor was not observable to me and I did not see it

before I fell.” Attached to her affidavit were photographs showing that the escalator lobby’s platform curb was painted yellow on the top horizontal edge and on its

vertical side, as well as on the immediately adjacent garage floor below the curb.

Pantona alleged the improper painting concealed where the curb ended and where

the garage floor began.

Pantona’s expert, Paul Burlij, an architect, submitted an affidavit and

a report. He stated that the escalator lobby’s platform curb was improperly painted

because the yellow painting extended onto the adjacent parking garage floor.

According to him, the continuous painting was in violation of the Ohio Building

Code (“OBC”) Section 1003, Paragraph 1003.5, which requires the top horizontal

and side vertical wall of the curb be painted, but not the adjacent floor. Burlij noted

the Americans with Disabilities Act (“ADA”) regulations also recommend the

provision of visual contrast. Burlij explained that the purpose of only painting the

curb and not the surrounding area is based on safety — to provide contrast and to

give warning and notice of a change in elevation. Burlij opined that “the improperly

painted curb is a serious defect when [a pedestrian] leav[es] the escalator lobby that

contributed to the fall and injuries sustained by Pantona.”

Without any analysis, the trial court issued a decision granting

summary judgment in favor of Erieview. This appeal follows. On appeal, Pantona

raises the following assignment of error for our review:

The trial court erred as a matter of law by granting summary judgment when genuine issues of material fact exist in the record. Summary Judgment

Summary judgment is appropriate where it appears that: (1) there is

no genuine issue as to any material fact; (2) the moving party is entitled to judgment

as a matter of law; and (3) 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, who is entitled to have the evidence construed most strongly in

his favor. Harless v. Willis Day Warehousing Co., Inc., 54 Ohio St.2d 64, 66, 375

N.E.2d 46 (1978). Pursuant to Civ.R. 56(C), summary judgment shall be rendered

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.” We review a trial court’s

grant of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d

102, 105, 671 N.E.2d 241 (1996).

An Owner’s Duty and the Doctrine of Open and Obvious

“In order to recover on a negligence claim, a plaintiff must prove

(1) that the defendant owed the plaintiff a duty, (2) that the defendant breached that

duty, and (3) that the breach of the duty proximately caused the plaintiffs injury.”

Chambers v. St. Mary’s School, 82 Ohio St.3d 563, 565, 697 N.E.2d 198 (1998).

In this case, it is undisputed that Pantona was an invitee. “A property

owner owes an invitee a duty of ordinary care to maintain the premises in a

reasonably safe condition and to warn of hidden defects.” Bounds v. Marc Glassman, Inc., 8th Dist. Cuyahoga No. 90610, 2008-Ohio-5989, ¶ 19, citing

Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 480 N.E.2d 474 (1985).

“This includes providing safe ingress to and egress from the premises.” Id., citing

Tyrrell v. Invest. Assocs., Inc., 16 Ohio App.3d 47, 474 N.E.2d 621 (8th Dist.1984).

However, it is well settled that an owner does not owe invitees a duty

to warn of dangers that are open and obvious. Armstrong v. Best Buy Co. Inc., 99

Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 5. The idea behind the open-

and-obvious doctrine is that, because of the open-and-obvious nature of the hazard,

property owners may reasonably expect the invitees to discover the hazard and take

appropriate measures to protect themselves. Simmers v. Bentley Constr. Co., 64

Ohio St.3d 642, 644, 597 N.E.2d 504 (1992). The open-and-obvious doctrine goes

to the element of duty, the threshold issue of a negligence claim. Armstrong at ¶ 13.

The doctrine obviates any duty to warn of an obvious hazard and bars negligence

claims for injuries related to the hazard. Hammond v. Cleveland, 8th Dist.

Cuyahoga No. 97174, 2012-Ohio-494, ¶ 11, citing Armstrong.

While the existence of a duty is a question of law for the court to decide,

the issue of whether a hazardous condition is open and obvious may present a

genuine issue of material fact for the jury to determine. Klauss v. Marc Glassman,

Inc., 8th Dist. Cuyahoga No. 84799, 2005-Ohio-1306. See also Carpenter v. Marc

Glassman, Inc., 124 Ohio App.3d 236, 240, 705 N.E.2d 1281 (8th Dist.1997) (where

reasonable minds could differ regarding whether a danger is open and obvious, the

obviousness of the risk is an issue for the jury). In addition, “[a]ttendant circumstances may create a genuine issue of

material fact as to whether a danger was open and obvious.” Klauss at ¶ 20.

While “there is no precise definition of ‘attendant circumstances’ * * * they generally include ‘any distraction that would come to the attention of a pedestrian in the same circumstances and reduced the degree of care an ordinary person would exercise at the time.’ McGuire v. Sears, Roebuck and Co., 118 Ohio App.3d 494, 499, 693 N.E.2d 807 (1996) (citation omitted). Moreover, the phrase “attendant circumstances” refers 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 of the event. Menke v. Beerman (Mar. 9, 1998), Butler App. No. CA97-09-182, 1998 Ohio App. LEXIS 868, citing Cash v. Cincinnati (1981), 66 Ohio St.2d 319, 421 N.E.2d 1275.

Id.

In addition, we note that whether a hazard is open and obvious

involves a fact-intensive inquiry and, therefore, comparing the facts of a given case

with other cases is often of limited value. Kidder v. Kroger Co., 2d Dist.

Montgomery No. 20405, 2004-Ohio-4261, ¶ 11.

Pantona argues an issue of fact exists regarding whether the elevation

change was an open-and-obvious danger, specifically, whether the platform as

painted concealed the elevation change. Pantona’s architect expert opines that it is

almost impossible for a person leaving the building to observe the curb edge because

of the improper painting. Construing the evidence in a light most favorable to

Pantona, the nonmoving party, we agree with Pantona and conclude the trial court

improperly granted Erieview’s motion predicated upon on the open-and-obvious

doctrine. It is undisputed that the escalator lobby’s platform’s curb was painted

yellow and the yellow painting extended to the immediately adjacent garage floor.

Her expert stated that the continuous painting violated the OBC and ADA standards

and it resulted in a lack of visual contrast for the change in elevation from the curb

to the garage floor, creating a hidden defect. While “[t]he violation of an

administrative rule does not constitute negligence per se[,] such a violation may be

admissible as evidence of negligence.” Chambers, 82 Ohio St.3d 563, 697 N.E.2d

198, at syllabus. See also Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-

Ohio-2495, 909 N.E.2d 120, ¶ 21 (in slip-and-fall cases, a violation of the building

code may serve as strong evidence that the condition at issue was dangerous and

that the landowner breached the duty of care although the violation is mere evidence

of negligence and does not raise an irrebuttable presumption of negligence).

The record in this case contains evidence that created an issue of

material fact for a jury to determine whether the platform’s six-inch curb was an

open-and-obvious hazard: the elevation change may have been concealed by the

yellow painting on the curb edge being extended to the garage floor immediately

below, thus creating a concealed and latent hazard. Because an issue of fact exists

regarding whether the curb as painted was an open-and-obvious hazard, we do not

reach the question of whether any attendant circumstances should have been

considered. Whether Plaintiff Knew Why She Fell

Erieview also argues it is entitled to summary judgment because

Pantona “cannot identify the cause of her fall.” Erieview alleges that Pantona “states

unequivocally that she does not know why she fell,” citing page 41 of the transcript

of her deposition testimony. Page 41 of the transcript reflects the following

testimony:

A. As I was exiting the * * * escalator, I was coming off the platform and I just went down. I didn’t notice any markings or anything. It seemed like everything was just flat.

Q. Do you know why you just went down?

A. No, because it appeared everything was flat when I fell. It didn’t appear to have a platform or anything on it because it looked like it was all just straight.

Contrary to Erieview’s assertion, Pantona did testify as to why she fell:

there did not seem to be a curb drop — “everything was just flat.” In addition, she

submitted photographic evidence and an expert affidavit to support her allegation

that her fall was caused by the curb drop being concealed by the improperly painted

curb edge and the immediately adjacent garage floor below.

Having reviewed the record and the pertinent case law authority, we

conclude that there is an issue of material fact for a jury to determine regarding

whether the escalator platform’s six-inch curb was open and obvious obviating

Erieview’s duty to protect Pantona from the potential hazard. Consequently, the

trial court improperly granted summary judgment in favor of Erieview. The first

assignment of error is sustained. Judgment reversed, and the matter is remanded to the trial court for

further proceedings consistent with this opinion.

It is ordered that appellant recover of said appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.

____________________________ MICHELLE J. SHEEHAN, JUDGE

MARY J. BOYLE, P.J., and MARY EILEEN KILBANE, J., CONCUR