[Cite as Watson v. Bradley, 2017-Ohio-431.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
DIANNA WATSON, et al., : OPINION
Plaintiffs-Appellants, : CASE NO. 2016-T-0031 - vs - :
ELESTER BRADLEY, et al., :
Defendants-Appellees. :
Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2015 CV 01210.
Judgment: Reversed and remanded.
Chanda L. Brown, and Sean L. Walton, Walton & Brown LLP, 20 South Third Street, Suite 210, Columbus, OH 43215 (For Plaintiffs-Appellants).
Kristen E. Campbell Traub, Pelini, Campbell, Williams & Traub, L.L.C., Bretton Commons, Suite #400, 8040 Cleveland Avenue, N.W., North Canton, OH 44720 (For Defendants-Appellees).
THOMAS R. WRIGHT, J.
{¶1} Appellants, Dianna and Herman Watson, appeal the trial court’s decision
awarding summary judgment in favor of appellees, Elester and Ozella Bradley. We
reverse and remand.
{¶2} On July 3, 2013, the Watsons, Mississippi residents, were in Ohio for a
family reunion. The Bradleys, the Watsons’ relatives, invited them to their home to freshen up after the long drive until their hotel room was available. Herman had been at
the Bradley home before, but Dianna had not.
{¶3} Upon arriving, the Watsons followed Elester through the man door into his
garage. The garage door was closed and no lights were on in the garage. Elester says
that there were windows in his garage and that it was a bright and sunny day. However,
there is no evidence depicting the number or size of the garage windows or whether the
windows were in the garage door only.
{¶4} Elester led the Watsons up a few steps and through another door into his
home. He was immediately followed by Herman, and Dianna was behind him. Dianna
was carrying her grandchild in her right arm. There is no evidence as to the age or size
of the child.
{¶5} Elester and Herman entered the home, passed through the entryway, and
proceeded straight and entered the kitchen. Dianna was still behind them. Upon
reaching the landing, she put out her left hand to steady herself on the wall. But instead
of a wall, she leaned into an open stairwell leading to the basement. She fell headfirst
down the stairs. Neither Elester nor Herman warned Dianna that there was an open
stairwell in this entryway.
{¶6} Elester describes the windows in the garage and kitchen as providing
“ample” light to “expose the stairwell.” The walls in the stairwell leading to the basement
were painted white and the stairs were covered in navy blue carpeting. There had
never been any prior accidents or falls on this stairwell.
{¶7} Herman, however, avers that there were no lights in the garage and states
“[t]here was a light above that when turned on would have made the steps leading to
2 the basement visible,” but it was not on at the time. He also states “[b]ecause of the
darkness in the area entering the home, the opening leading to the basement was not
visible.”
{¶8} Dianna describes the entryway to the home as darkened. The garage
door was down and there were no lights on in the entryway. She describes the stairwell
as “immediately to the left” as she entered the home and explains “because of the dark
garage and entryway into the home, as well as the sudden nature of the opening, I did
not have an opportunity to look for any safety hazards.”
{¶9} The Watsons filed suit against the Bradleys for negligence and loss of
consortium. The Bradleys filed a motion for summary judgment relying solely on
Elester’s two-page affidavit. The Watsons opposed the motion relying on their
affidavits. No photographs depicting the entryway or the garage were submitted. There
was likewise no measurement or testimony depicting the distance between the open
stairwell from the door Dianna used to enter Elester’s home.
{¶10} The trial court found that the stairwell was an open and obvious condition,
and as such, held that the Bradleys had no duty to warn Dianna of its existence and
granted summary judgment as a matter of law.
{¶11} The Watsons assert one assigned error: “The trial court erred in
approving defendants-appellees’, Elester Bradley and Ozella Bradley’s, motion for
summary judgment because the condition that caused her injuries was not an ‘open and
obvious’ risk of injury.”
3 {¶12} Appellate courts review summary judgment decisions anew and apply the
same standard used by the trial court. Civ.R. 56(C) dictates the summary judgment
standard stating in part:
{¶13} “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, * * * 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. No evidence or stipulation may be considered except as stated in this rule. A
summary judgment shall not be rendered unless it appears from the 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.”
{¶14} A “material fact” for summary judgment depends on the type of the claim
being litigated. Hoyt, Inc. v. Gordon & Assocs., Inc., 104 Ohio App.3d 598, 603, 662
N.E.2d 1088 (8th Dist.1995), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-
248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Here, the Watsons assert that the
Bradleys negligently failed to warn Dianna of the darkened stairwell and that Dianna
suffered disabling injuries as a result of her fall.
{¶15} Thus, the Watsons must prove that the Bradleys had a duty to warn
Dianna, that they breached that duty, and that she sustained damages resulting from
their breach of duty. Anderson v. St. Francis-St. George Hosp., Inc., 77 Ohio St.3d 82,
84, 671 N.E.2d 225 (1996).
4 {¶16} The Supreme Court describes the duty owed to a social guest by a
homeowner as:
{¶17} “That duty of the host * * * is to exercise ordinary care not to cause injury
to his guest by any act of the host or by any activity carried on by the host while the
guest is on the premises. Coupled with this is the duty of the host to warn the guest of
any condition of the premises known to the host and which one of ordinary prudence
and foresight in the position of the host should reasonably consider dangerous, if the
host has reason to believe that the guest does not know and will not discover such
dangerous condition.” Scheibel v. Lipton, 156 Ohio St. 308, 329, 102 N.E.2d 453
(1951).
{¶18} An open and obvious danger does not impose a duty on a homeowner
because the landowner may reasonably expect individuals encountering the condition to
discover the danger and take appropriate measures to protect themselves from it.
Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 644, 597 N.E.2d 504 (1992). The
rationale for the doctrine is that the open and obvious nature of the hazard itself is
sufficient warning to the individual encountering it. Hissong v. Miller, 186 Ohio App.3d
345, 2010-Ohio-961, 927 N.E.2d 1161, ¶10 (2d Dist.), quoting Armstrong v. Best Buy
Co., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶13. The open-and-obvious
test “‘properly considers the nature of the dangerous condition itself, as opposed to the
nature of the plaintiff's conduct in encountering it.’” Id.
{¶19} The critical inquiry is whether the danger “is discoverable or discernible by
one acting with ordinary care under the circumstances.” Holcomb v. Holcomb, 12th
Dist. Clermont No. CA 2013-10-080, 2014-Ohio-3081, ¶16, citing Vanderbilt v. Pier 27,
5 LLC, 12th Dist. Butler No. CA 2013-02-029, 2013-Ohio-5205, ¶12. The injured party
must not have actually seen the condition before encountering it. Instead, we must
decide whether a reasonable person exercising ordinary care in the same
circumstances would have perceived the risk, avoided it, and prevented injury. Id.
{¶20} Whether a person owes a duty of care to protect individuals against an
open and obvious danger is generally for a court to decide. However, whether the
hazard in a case is open and obvious is a heavily fact-driven issue that “may involve a
genuine issue of material fact, which a trier of fact must resolve.” Henry v. Dollar Gen.
Store, 2d Dist. Greene No. 2002-CA-47, 2003-Ohio-206, ¶10, citing Mussivand v.
David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989).
{¶21} In Miller v. Wayman, 11th Dist. Geauga No. 2012-G-3057, 2012-Ohio-
5598, the plaintiffs successfully challenged the trial court’s summary judgment
determination finding a flight of stairs behind a closed door an open and obvious
condition. David Miller was a first-time customer at a coffee shop. Upon inquiring as to
the location of the bathroom, his daughter, an off-duty coffee shop employee, advised
him that it was in the back of the store. David proceeded to the back of the shop and
opened two unmarked doors. The first room was dark, but he saw a filing cabinet. He
then opened the second, and upon attempting to turn on what he thought was the
bathroom light, fell down a flight of stairs. Id. at ¶2-21. On appeal we disagreed with
the trial court’s open and obvious determination, stating:
{¶22} “[R]easonable minds could differ as to whether the dangers in this case
were open and obvious. It cannot be concluded that a reasonable person would find
the danger of darkness in this case to be open and obvious, especially when the
6 darkness is not revealed until the doorway is opened, and at that point, absent an
awkward halt, one foot may already be in the room. Moreover, one could conclude the
darkness is not necessarily dangerous, but common or expected because many public
establishments do not keep a light on in a restroom at all times. * * *
{¶23} “Further, the unmarked door opened inward, and those invitees unfamiliar
with the passage would find themselves instantaneously atop a stairwell. One could
similarly conclude that the doorway concealed the stairwell. Even a well-lit passage
could lead to injury on stairs that are not noticeable until the door swings open * * *.” Id.
at ¶39-40.
{¶24} Viewing the evidence in a light most favorable to the Watsons, the
summary judgment evidence here presents a genuine issue of material fact for the jury
to decide as to whether the stairwell was discernible by a person exercising ordinary
care in Dianna’s position. According to her, Dianna entered a dark garage and was led
by her host up approximately two steps into Elester’s home. Upon entering the
darkened entryway, Dianna leaned to her left to steady herself on the wall. She did not
see the stairwell because it was dark and she fell to her peril down the stairs. Although
there is no evidence describing the manner in which the door opened in this case,
Dianna describes the stairwell as “sudden” and immediately to her left upon entering the
home. To the contrary, Elester said there was ample light to expose the stairwell, but
he owned the home and was fully aware of the presence of the stairs. Furthermore, the
light from the kitchen windows that allowed Elester to see could have been reduced by
the shadows cast by Elester and Herman proceeding in front of Dianna. Thus, Elester’s
ability to see the stairwell does not preclude the conclusion that a reasonable person
7 exercising ordinary care in Dianna’s position would not have been able to perceive the
stairwell and protect herself from it. This was her first time at Elester’s home; she was
unfamiliar with the layout; and she was relying on him to lead her into his residence.
{¶25} The conflicting evidence as to the visibility of the stairwell at the time of the
fall allows reasonable minds to reach different conclusions as to whether the open
staircase was an open and obvious condition. Accordingly, the first assigned error has
merit, and summary judgment was not warranted on this basis. Civ.R. 56(C).
{¶26} Alternatively, the Bradleys urge us to affirm the award of summary
judgment arguing that Dianna and Herman’s claims are barred by Dianna’s contributory
negligence via the step-in-the-dark rule, which is an affirmative defense.
{¶27} “Where darkness is a factor in a trip-and-fall situation, the darkness itself
may be the hazardous condition that serves as the warning of danger, and the person
who disregards the dark condition does so at his or her own risk. * * * The ‘step-in-the
dark’ rule relates to the proximate cause element of negligence and holds that ‘one who,
from a lighted area, intentionally steps into total darkness, without knowledge,
information, or investigation as to what the darkness might conceal, is guilty of
contributory negligence as a matter of law.’ Posin v. A.B.C. Motor Court Hotel, Inc., 45
Ohio St.2d 271, 276, 344 N.E.2d 334 (1976); Johnson[v. Regal Cinemas, Inc., 8th Dist.
Cuyahoga No. 93775, 2010-Ohio-1761,] at ¶30 (stating the rule mandates liability upon
an individual who intentionally steps from a lighted area to total darkness, without
investigating the possible dangers concealed by the darkness); * * *
8 {¶28} “This rule applies only in cases of ‘total darkness’ and not where testimony
indicates some degree of illumination. Rothfuss v. Hamilton Masonic Temple Co., 34
Ohio St.2d 176, 183-186, 297 N.E.2d 105 (1973). * * *
{¶29} “The step-in-the-dark rule generally infers that the injured party lacked
ordinary care in proceeding in the dark. However, the rule recognizes that sometimes
‘“a person's step into the darkness is perfectly reasonable.”’ Tomasko v. Sohnly, 5th
Dist. Delaware No.15-CAE-10-0078, 2016-Ohio-2698, ¶29, quoting Hissong at ¶39. ‘It
cannot be said that a person is guilty of negligence as a matter of law under all
circumstances when such person enters a dark place where his sense of sight alone
does not enable him to see what is before him.’ Chardon Lakes Inn Co. v. MacBride, 56
Ohio App. 40, 46, 24 Ohio Law Abs. 504, 10 N.E.2d 9 (11th Dist.1937). For example, a
person can be lulled into a false sense of safety under certain circumstances, such as
the existence of some lighting or adherence to the instructions of another. See
Rothfuss (light conditions in the parking lot); MacBride (following someone's
instructions).
{¶30} “Where there is conflicting evidence or a question regarding the credibility
of witnesses, there can be no inference of lack of ordinary care:
{¶31} “‘If conflicting evidence exists as to the intentional nature of the step into
the dark, the lighting conditions and degree of darkness, the nature and appearance of
the premises, or other circumstances exist tending to disprove a voluntary, deliberate
step into unknown darkness, then clearly an inference of contributory negligence does
not arise. Evidence of this nature presents a factual question for determination by the
jury.’ Posin, 45 Ohio St.2d at 276, 344 N.E.2d 334, citing Rothfuss; Chardon Lakes Inn
9 Co. Therefore, the question becomes whether the injured person unreasonably
stepped into the darkness, or whether the injured person acted negligently in her
encounter with the darkness, and whether, for summary judgment purposes, reasonable
minds can answer this question differently.” Carter v. Forestview Terrace L.L.C., 8th
Dist. Cuyahoga No. 103165, 2016-Ohio-5229, ¶19-22.
{¶32} Moreover, comparative negligence now governs and the doctrine of
contributory negligence no longer acts as an absolute bar to recovery. Posin v. A.B.C.
Motor Court Hotel, Inc., 45 Ohio St.2d 271, 276, 344 N.E.2d 334 (1976). See Mitchell v.
Ross, 14 Ohio App.3d 75, 470 N.E.2d 245 (1984). Notwithstanding, “summary
judgment may [still] be granted to the defendant in a negligence suit where, ‘after
construing the undisputed evidence most strongly in favor of plaintiff, a reasonable
person could only conclude that the contributory negligence of the plaintiff was greater
than the combined negligence’ of the defendants. Miljikovic v. Greater Cleveland
Regional Transit Auth. (Oct. 12, 2000), 8th Dist. No. 77214, 2000 Ohio App. LEXIS
4780, citing to Mitchell, supra.” Leonard v. Modene & Assocs., 6th Dist. Wood No. WD-
05-085, 2006-Ohio-5471, ¶55.
{¶33} Here, we cannot conclude that the step-in-the-dark rule applies for two
reasons. First, there is conflicting evidence as to the level of darkness in Elester’s
entryway and adjacent stairwell on the day Dianna fell. This is not a case in which
Dianna left a lighted hallway and intentionally encountered a completely dark home.
Instead, she was entering what she describes as a darkened entryway from a dark
garage and was following the homeowner. Furthermore, Elester avers that the garage
and home were adequately lit from the natural light entering through the windows.
10 Thus, we cannot conclude that Dianna stepped into total darkness, and as such, we
cannot invoke the step-in-the-dark rule.
{¶34} Second, upon construing the evidence most strongly in favor of Dianna,
we cannot find that that a reasonable person could only conclude that her contributory
negligence was greater than the Bradleys’. Dianna followed Elester into his home
arguably without adequate lighting to illuminate the adjacent stairwell in his entryway.
Although she was not following his oral instructions upon navigating the home like the
customer in Miller v. Wyman, supra, she was relying on his physical direction and
presence, and she followed him without anticipating the sudden, open stairwell.
Whether Dianna unreasonably relied on Elester’s lead into the darkened entryway and
acted unreasonably upon leaning on a wall that was not present are questions for the
trier of fact. Hissong v. Miller, 186 Ohio App.3d 345, 2010-Ohio-961, 927 N.E.2d 1161,
¶39 (stating that a “person does not act negligently by failing to look for danger where
she has no reason to expect it, or where she has reason not to expect it. For example,
a person can be induced by another to enter darkness, having been instilled with a
sense of safety in doing so.” (Emphasis sic.)).
{¶35} Accordingly, the step-in-the dark doctrine does not preclude the Watson’s
recovery, and summary judgment was not warranted on this basis.
{¶36} Based on the foregoing, we reverse and remand the trial court’s decision
awarding summary judgment in the Bradley’s favor.
COLLEEN MARY O’TOOLE, J., concurs,
DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.
11 ____________________
{¶37} I respectfully dissent from the majority’s analysis and reversal of the lower
court’s decision granting summary judgment in favor of appellees, the Bradleys. Since
the appellants, the Watsons, cannot prevail on their negligence claim as a matter of law,
regardless of any factual disputes, the grant of summary judgment was proper.
{¶38} In the present case, Dianna Watson walked from the Bradleys’ garage into
the interior of their home, which she described in her affidavit as “dark” and “darkened.”
She then leaned against what she assumed to be a wall to steady herself, which was
instead an opening to basement stairs, causing her to fall. Her husband described the
opening leading to the basement stairs as “not visible.” These facts fairly demonstrate
the “open and obvious” hazard doctrine and/or that Dianna, as a matter of law, failed to
exercise reasonable care and is responsible for her own injuries. Either conclusion
precludes the plaintiffs’ recovery in the present case and provided grounds to grant
summary judgment.
{¶39} “Where a danger is open and obvious, a landowner owes no duty of care
to individuals lawfully on the premises.” Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d
79, 2003-Ohio-2573, 788 N.E.2d 1088, syllabus. “The rationale underlying this 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.’” Id. at ¶
5, quoting Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 644, 597 N.E.2d 504
12 (1992). “When applicable * * *, the open-and-obvious doctrine * * * acts as a complete
bar to any negligence claims.” Id.
{¶40} Darkness has been repeatedly recognized as an open and obvious
hazard. “‘Darkness’ is always a warning of danger, and for one’s own protection it may
not be disregarded.” Jeswald v. Hutt, 15 Ohio St.2d 224, 239 N.E.2d 37 (1968),
paragraph three of the syllabus. “Since darkness itself constitutes a sign of danger, the
person who disregards a dark condition does so at his or her own peril.” Swonger v.
Middlefield Village Apts., 11th Dist. Geauga No. 2003-G-2547, 2005-Ohio-941, ¶ 13.
{¶41} It can hardly be said that the existence of a staircase within a home
presents the sort of danger of which a home owner would be required to warn a social
guest. Nothing in the record indicates that the staircase/opening itself was unsafe. The
fact that Dianna did not expect it to be there does not equate to a finding that it was
dangerous. This leaves only a possible claim that the darkness made the staircase
dangerous, which is precluded by the foregoing case law. Id. (“the darkness outside
appellee’s building and the dangers presented by navigating in such darkness were
open and obvious to appellants, and appellee had no duty to protect them from such
hazards”).
{¶42} In the present case, Dianna continued to proceed up the stairs and into an
entryway which, according to her, she was aware was in a darkened area. Presuming
that her factual contentions are true, she was fully aware that there was a lack of
lighting. Her choice to lean on what she assumed to be a wall and could not verify due
to the darkness demonstrated a failure to exercise appropriate care on her part rather
than negligence by the Bradleys. See Cash v. Thomas & King Ltd. Liab. Co. #104, 11th
13 Dist. Trumbull No. 2015-T-0030, 2016-Ohio-175, ¶ 27 (“darkness increases rather than
reduces the degree of care an ordinary person would exercise”) (citation omitted).
{¶43} Further, even where there is a genuine issue of material fact as to the
degree of darkness, courts have held summary judgment is appropriate: “if it was light
enough to see, then [the] steps presented an open and obvious hazard, and if it was
dark, then the darkness was observable.” Gentry v. Collins, 12th Dist. Warren No.
CA2012-06-048, 2013-Ohio-63, ¶ 23. Although the majority claims that there are
factual issues to be resolved by the trier of fact, recovery is precluded as a matter of
law.
{¶44} The majority extensively cites Miller v. Wayman, 11th Dist. Geauga No.
2012-G-3057, 2012-Ohio-5598, a case which is entirely distinguishable from the present
matter, in support of the above proposition. In Miller, the plaintiff, following directions he
had been given, opened a door and stepped into a dark room which he believed to be a
bathroom, and fell down a flight of stairs. The court emphasized that the darkness may
not have been open and obvious because it was not revealed until the door was
opened. Id. at ¶ 39. Such a factual scenario did not exist here.
{¶45} The present case is much more similar to the cases that the Miller majority
found factually distinguishable, which involved plaintiffs who continued to proceed
through an area already known to them as dark, subsequently leading to an accident.
See id. at ¶ 37. Here, Dianna was aware of the darkness when she entered the home,
continued to walk up the steps and onto the landing without pausing or requesting a
light be turned on, and then encountered the basement stairs down which she fell after
leaning into the stairwell. No duty was found to exist in a similar case, where the room
14 outside of a door leading to a darkened basement stairway was “either dark or dimly lit,”
since the social guest should not enter the doorway of the basement stairs in an
unfamiliar house, “without properly investigating,” and it was “necessary that he heed
the obvious danger of the darkness.” Estate of Helle v. Hensley, 6th Dist. Williams No.
WM-10-017, 2011-Ohio-4279, ¶ 28-29.
{¶46} Finally, pursuant to undisputed statements in Elester’s affidavit, Dianna’s
husband had been to the Bradley home previously and he did not warn Dianna of any
danger. It stands to reason that if the opening to the basement stairwell really was a
danger of which Elester had a duty to advise, Dianna’s husband would have informed
her of such danger. This, furthered by the lack of any evidence as to how having an
opening leading to a staircase in a home is anything other than typical, leaves no factual
matters left to dispute on the issue of whether there was a foreseeable danger that
required warning by Elester. Jeffers v. Olexo, 43 Ohio St.3d 140, 143, 539 N.E.2d 614
(1989) (duty depends upon the foreseeability of the injury).
{¶47} For these reasons, the trial court’s grant of summary judgment in favor of
the Bradleys should be affirmed.