[Cite as Von Gunten v. Wal-Mart Stores, E., Inc., 2011-Ohio-4976.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
ROBERTA VON GUNTEN, ET AL. : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiffs-Appellants : Hon. William B. Hoffman, J. : Hon. Sheila G. Farmer, J. -vs- : : WAL-MART STORES EAST, INC. : Case No. 2011CA00037 : Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2010CV02429
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 26, 2011
APPEARANCES:
For Plaintiffs-Appellants For Defendant-Appellee
RANDALL M. TRAUB RICARDO J. CARDENAS 8040 Cleveland Avenue, NW 222 South Main Street Suite 400 Akron, OH 44308 North Canton, OH 44720 Stark County, Case No. 2011CA00037 2
Farmer, J.
{¶1} On January 25, 2009, appellant, Roberta Von Gunten, fell at a Sam's Club
store and sustained injuries.
{¶2} On June 29, 2010, appellant, together with her husband, Richard Von
Gunten, filed a negligence complaint against appellee, Wal-Mart Stores East, Inc.
Appellee filed a motion for summary judgment on November 19, 2010, claiming the
open and obvious doctrine. By judgment entry filed January 26, 2011, the trial court
granted the motion.
{¶3} Appellants filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶4} "THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT."
{¶5} Appellants claim the trial court erred in granting appellee's motion for
summary judgment. We disagree.
{¶6} Summary Judgment motions are to be resolved in light of the dictates of
Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.
Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:
{¶7} "Civ.R. 56(C) provides that before summary judgment may be granted, it
must be determined that (1) no genuine issue as to any material fact remains 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 Stark County, Case No. 2011CA00037 3
viewing such evidence most strongly in favor of the nonmoving party, that conclusion is
adverse to the party against whom the motion for summary judgment is made. State
ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,
citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472,
364 N.E.2d 267, 274."
{¶8} As an appellate court reviewing summary judgment motions, we must
stand in the shoes of the trial court and review summary judgments on the same
standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30
Ohio St.3d 35.
{¶9} It is undisputed that appellant was a business invitee. Accordingly,
appellee owed appellant a duty of ordinary care to maintain the premises in a
reasonably safe condition and to warn of hidden defects. Paschal v. Rite Aid
Pharmacy, Inc. (1985), 18 Ohio St.3d 203. The open and obvious doctrine, if
applicable, is a complete bar to recovery unless the business invitee can establish
attendant circumstances. Armstrong v. Best Buy Company, Inc., 99 Ohio St.3d 79,
2003–Ohio–2573. The rationale underlying the open and obvious doctrine is that
the "open and obvious nature of the hazard 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." Hunter
v. Jamin Bingo Hall, Lucas App. No. L–08–1086, 2008–Ohio–4485, ¶8. "Although there
is no precise definition of 'attendant circumstances,' they generally include any
distraction that would come to the attention of an invitee in the same circumstances and
reduce the degree of care an ordinary person would exercise at the time." Carter v. Stark County, Case No. 2011CA00037 4
Miles Supermarket, Cuyahoga App. No. 95024, 2010–Ohio–6365, ¶18, citing McGuire
v. Sears, Roebuck & Co.(1996), 118 Ohio App.3d 494.
{¶10} Appellant claims as she was entering the Sam's Club store, her attention
was diverted when a door greeter asked her for her membership card, causing her to
trip over a wet, crumpled carpet and fall. Appellant's Brief at 4-5. In her deposition at
12, appellant explained the incident as follows:
{¶11} "A. We got out of the car and locked the car up. We came across the
parking lot. We entered into the store. My husband went to the right to get a cart and I
came into the store. The greeter was there expecting me to have this card ready,
because you have to show your card when you get in there.
{¶12} "The carpet buckled. I caught my toe on the carpet and I stumbled. I tried
to get my balance. I fell into the metal door frame with my head, hitting it right above
the right eye."
{¶13} Appellant claims the process in which one must present their membership
card to the door greeter distracted her. Von Gunten depo. at 14-18. However, she
could not remember if she had her membership card out or if she was retrieving it from
her purse. Id. at 21. She admitted that nothing obstructed her view of the mats as she
entered the store, but she had no recollection of actually looking at the mats prior to her
fall. Id. at 15-16.
{¶14} In her affidavit filed with her January 14, 2011 memorandum in opposition
to the motion for summary judgment, appellant claimed she was reaching into her purse
to retrieve the membership card and the presence of the greeter distracted her. Stark County, Case No. 2011CA00037 5
{¶15} Despite the inconsistencies, what appellant was doing cannot qualify as
attendant circumstances. What is central to the attendant circumstances rule as an
exception to the open and obvious doctrine is that the circumstance must be a condition
or distraction caused by the premises owner and not of the plaintiff's own making.
{¶16} As is obvious from the videotape of appellant's fall, she entered the Sam's
Club store and tripped on the edge of the mat located in the vestibule between the two
doors, the outside doors and the second set of interior doors. The greeter was
positioned on the other side of the second set of doors, inside the store. By her own
admission, she was walking in the middle of the doorways with nothing obstructing her
view of the mats. Von Gunten depo. at 14-15. What is also apparent from the
videotape is that the mat had a buckle along its edge which was clearly visible.
{¶17} Upon review, we find no evidence that the presence of the greeter to
check one's membership card was an attendant circumstance which caused appellant's
fall. Therefore, the trial court did not err in granting summary judgment to appellee.
{¶18} Appellee's additional issues pertaining to the inconsistencies between
appellant's deposition and her affidavit have no bearing on the decision given the
videotape of the incident.
{¶19} The sole assignment of error is denied. Stark County, Case No. 2011CA00037 6
{¶20} The judgment of the Court of Common Pleas of Stark County, Ohio is
hereby affirmed.
By Farmer, J.
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[Cite as Von Gunten v. Wal-Mart Stores, E., Inc., 2011-Ohio-4976.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
ROBERTA VON GUNTEN, ET AL. : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiffs-Appellants : Hon. William B. Hoffman, J. : Hon. Sheila G. Farmer, J. -vs- : : WAL-MART STORES EAST, INC. : Case No. 2011CA00037 : Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2010CV02429
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 26, 2011
APPEARANCES:
For Plaintiffs-Appellants For Defendant-Appellee
RANDALL M. TRAUB RICARDO J. CARDENAS 8040 Cleveland Avenue, NW 222 South Main Street Suite 400 Akron, OH 44308 North Canton, OH 44720 Stark County, Case No. 2011CA00037 2
Farmer, J.
{¶1} On January 25, 2009, appellant, Roberta Von Gunten, fell at a Sam's Club
store and sustained injuries.
{¶2} On June 29, 2010, appellant, together with her husband, Richard Von
Gunten, filed a negligence complaint against appellee, Wal-Mart Stores East, Inc.
Appellee filed a motion for summary judgment on November 19, 2010, claiming the
open and obvious doctrine. By judgment entry filed January 26, 2011, the trial court
granted the motion.
{¶3} Appellants filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶4} "THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT."
{¶5} Appellants claim the trial court erred in granting appellee's motion for
summary judgment. We disagree.
{¶6} Summary Judgment motions are to be resolved in light of the dictates of
Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.
Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:
{¶7} "Civ.R. 56(C) provides that before summary judgment may be granted, it
must be determined that (1) no genuine issue as to any material fact remains 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 Stark County, Case No. 2011CA00037 3
viewing such evidence most strongly in favor of the nonmoving party, that conclusion is
adverse to the party against whom the motion for summary judgment is made. State
ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,
citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472,
364 N.E.2d 267, 274."
{¶8} As an appellate court reviewing summary judgment motions, we must
stand in the shoes of the trial court and review summary judgments on the same
standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30
Ohio St.3d 35.
{¶9} It is undisputed that appellant was a business invitee. Accordingly,
appellee owed appellant a duty of ordinary care to maintain the premises in a
reasonably safe condition and to warn of hidden defects. Paschal v. Rite Aid
Pharmacy, Inc. (1985), 18 Ohio St.3d 203. The open and obvious doctrine, if
applicable, is a complete bar to recovery unless the business invitee can establish
attendant circumstances. Armstrong v. Best Buy Company, Inc., 99 Ohio St.3d 79,
2003–Ohio–2573. The rationale underlying the open and obvious doctrine is that
the "open and obvious nature of the hazard 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." Hunter
v. Jamin Bingo Hall, Lucas App. No. L–08–1086, 2008–Ohio–4485, ¶8. "Although there
is no precise definition of 'attendant circumstances,' they generally include any
distraction that would come to the attention of an invitee in the same circumstances and
reduce the degree of care an ordinary person would exercise at the time." Carter v. Stark County, Case No. 2011CA00037 4
Miles Supermarket, Cuyahoga App. No. 95024, 2010–Ohio–6365, ¶18, citing McGuire
v. Sears, Roebuck & Co.(1996), 118 Ohio App.3d 494.
{¶10} Appellant claims as she was entering the Sam's Club store, her attention
was diverted when a door greeter asked her for her membership card, causing her to
trip over a wet, crumpled carpet and fall. Appellant's Brief at 4-5. In her deposition at
12, appellant explained the incident as follows:
{¶11} "A. We got out of the car and locked the car up. We came across the
parking lot. We entered into the store. My husband went to the right to get a cart and I
came into the store. The greeter was there expecting me to have this card ready,
because you have to show your card when you get in there.
{¶12} "The carpet buckled. I caught my toe on the carpet and I stumbled. I tried
to get my balance. I fell into the metal door frame with my head, hitting it right above
the right eye."
{¶13} Appellant claims the process in which one must present their membership
card to the door greeter distracted her. Von Gunten depo. at 14-18. However, she
could not remember if she had her membership card out or if she was retrieving it from
her purse. Id. at 21. She admitted that nothing obstructed her view of the mats as she
entered the store, but she had no recollection of actually looking at the mats prior to her
fall. Id. at 15-16.
{¶14} In her affidavit filed with her January 14, 2011 memorandum in opposition
to the motion for summary judgment, appellant claimed she was reaching into her purse
to retrieve the membership card and the presence of the greeter distracted her. Stark County, Case No. 2011CA00037 5
{¶15} Despite the inconsistencies, what appellant was doing cannot qualify as
attendant circumstances. What is central to the attendant circumstances rule as an
exception to the open and obvious doctrine is that the circumstance must be a condition
or distraction caused by the premises owner and not of the plaintiff's own making.
{¶16} As is obvious from the videotape of appellant's fall, she entered the Sam's
Club store and tripped on the edge of the mat located in the vestibule between the two
doors, the outside doors and the second set of interior doors. The greeter was
positioned on the other side of the second set of doors, inside the store. By her own
admission, she was walking in the middle of the doorways with nothing obstructing her
view of the mats. Von Gunten depo. at 14-15. What is also apparent from the
videotape is that the mat had a buckle along its edge which was clearly visible.
{¶17} Upon review, we find no evidence that the presence of the greeter to
check one's membership card was an attendant circumstance which caused appellant's
fall. Therefore, the trial court did not err in granting summary judgment to appellee.
{¶18} Appellee's additional issues pertaining to the inconsistencies between
appellant's deposition and her affidavit have no bearing on the decision given the
videotape of the incident.
{¶19} The sole assignment of error is denied. Stark County, Case No. 2011CA00037 6
{¶20} The judgment of the Court of Common Pleas of Stark County, Ohio is
hereby affirmed.
By Farmer, J.
Gwin, P.J. concur and
Hoffman, J. dissents.
_s/ Sheila G. Farmer__________________
_s/ W. Scott Gwin __________________
__________________________________
JUDGES
SGF/sg 908 Stark County, Case No. 2011CA00037 7
Hoffman, J., dissenting
(¶21) I respectfully dissent from the majority opinion. When considering the
evidence in the light most favorable to Appellant as required by Civ.R. 56, I find
reasonable minds could differ as to whether attendant circumstances existed to obviate
the open and obvious doctrine.1 Specifically, whether the procedure of requiring
customers to present their identification to the greeter distracted Appellant from seeing
the otherwise open and obvious crumbled mat.
________________________________ HON. WILLIAM B. HOFFMAN
1 Upon my review of the videotape, I find it inconclusive on the key issue as to whether attendant circumstances existed at the time of Appellant’s fall. [Cite as Von Gunten v. Wal-Mart Stores, E., Inc., 2011-Ohio-4976.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ROBERTA VON GUNTEN, ET AL. : : Plaintiffs-Appellants : : -vs- : JUDGMENT ENTRY : WAL-MART STORES EAST, INC. : : Defendant-Appellee : CASE NO. 2011CA00037
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to
appellants.
s/ Sheila G. Farmer__________________
_______________________________