Parsons v. Lawson Co.

• Decision Date: 30 January 1989
• Docket Number: No. CA-7614,CA-7614
• Citation: 566 N.E.2d 698,57 Ohio App.3d 49
• Parties: PARSONS, Appellant, v. LAWSON COMPANY, Appellee.
• Court: Ohio Court of Appeals

Page 49

57 Ohio App.3d 49

566 N.E.2d 698

PARSONS, Appellant, v. LAWSON COMPANY, Appellee.

No. CA-7614.

Court of Appeals of Ohio, Fifth District, Stark County.

Jan. 30, 1989.

Syllabus by the Court

An occupier of premises has no duty to warn a business invitee of dangers on the premises, or to protect the invitee from harm therefrom, where the danger is so obvious and apparent that the invitee may reasonably be expected to discover it and protect himself against it.

John R. Giua and Stephen A. Ginella, Jr., Canton, for appellant.

Baker, Meekison & Dublikar and Paul R. Reiners, Canton, for appellee.

MILLIGAN, Judge.

The Stark County Court of Common Pleas, upon motion for summary judgment by the defendant, sustained the motion and dismissed the personal injury action of plaintiff. He appeals, assigning a single error:

"The court of common pleas erred when it granted summary judgment to defendant the Lawson Company, in that plaintiff's pleadings and deposition testimony demonstrate that there are questions of fact present which are only within the province of the jury to determine."

(Appellant failed to comply with Loc.App.R. 4[D].)

Appellant was a customer of Lawson's (appellee). In anticipation of selecting items from the coolers and looking therein, he tripped over small empty boxes that had contained beer and pop, which were in the aisleway adjacent to the cooler. Appellant did not see the boxes until he tripped, and as he was falling he caught himself before hitting the floor.

" * * * Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, 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. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, 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, such party being entitled to have the evidence or stipulation construed most strongly in his favor. * * *" Civ.R. 56(C).

Although the assignment of error suggests that there is a "genuine issue as to any material fact," it is obvious that the claim of appellant is that the summary judgment is erroneous as a matter of law. For the purpose of summary judgment, the appellee concedes the evidence "construed most strongly in his [appellant's] favor."

Stated succinctly, the issue is: Could reasonable minds come to the single conclusion that appellee breached no duty owed appellant upon the above-stated facts?

The appellee's motion for summary judgment imposes upon the appellant the burden of demonstrating the duty owed, breach of that duty, proximate cause of injury, and injury. Keister v. Park Centre Lanes (1981), 3 Ohio App.3d 19, 3 OBR 20, 443 N.E.2d 532.

Duty of retail merchant to

business invitee.

The affirmative duty owed by the merchant to his customers is clear:

"Patrons and prospective customers upon the premises of a shopping center are invitees and the shopping center owner owes such invitees the common-law duty to exercise ordinary care for their safety.

"The common-law duty of the owner of a shopping center to exercise ordinary care for the safety of its invitees is that degree of care which an ordinarily reasonable and prudent person exercises, or is accustomed to exercise, under the same or similar circumstances." Smith v. United Properties, Inc. (1965), 2 Ohio St.2d 310, 31 O.O.2d 573, 209 N.E.2d 142, paragraphs one and two of the syllabus.

Ironically, the duty to an invitee is more frequently identified in terms of what the duty is not. Thus:

"An occupier of premises is under no duty to protect a business invitee against dangers which are known to such invitee or are so obvious and apparent to such invitee that he may reasonably be expected to discover them and protect himself against them." Sidle v. Humphrey (1968), 13 Ohio St.2d 45, 42 O.O.2d 96, 233 N.E.2d 589, paragraph one of the syllabus.

Further, the merchant is not an insurer of his customer's safety:

"The owners or occupiers of private premises are not insurers of the safety of pedestrians traversing those premises * * *." Helms v. American Legion, Inc. (1966), 5 Ohio St.2d 60, 34 O.O.2d 124, 213 N.E.2d 734, syllabus.

Thus, "[a]n occupier of premises is under no duty to protect a business invitee against dangers which are known to such invitee or are so obvious and apparent to such invitee that he may reasonably be expected to discover them and protect himself from them." Sidle v. Humphrey, supra, at syllabus.

The duty of the merchant to warn a customer is as to latent or concealed perils. Arnold v. K-Mart Corp. (Oct. 17, 1983), Stark App. No. CA-6137, unreported.

The appropriate function of the factfinder (jury) is to resolve issues of disputed fact within the "window" framed on all sides by the parameters of legal right and duty. The propositions of law form the "window frame." When the facts, construed most favorably to the defending party on summary judgment, fall outside the window frame, the case is properly resolved by summary judgment. For example, if reasonable minds could conclude only that the hazard was not discernible in the "exercise of due care," the claimant is entitled to summary judgment. Long v. Lohmyer (Mar. 30, 1987), Stark App. No. CA-6983, unreported, 1987 WL 9090.

By like token where the hazard is not hidden from view or concealed and is discoverable by ordinary inspection, the court may properly sustain a summary judgment against the claimant. Mayle v. Fisher Foods (Oct. 21, 1981), Stark App. No. CA-5624, unreported, 1981 WL 6454; Potts v. Smith Constr. Co. (1970), 23...