Schindler v. Gale's Superior Supermarket, Inc.

• Decision Date: 16 April 2001
• Docket Number: No. 78421.,78421.
• Citation: 754 NE 2d 298,142 Ohio App.3d 146
• Parties: SCHINDLER et al., Appellants, v. GALE'S SUPERIOR SUPERMARKET, INC., d.b.a. Gale's Village Market, Appellee.
• Court: Ohio Court of Appeals

142 Ohio App.3d 146

754 NE 2d 298

SCHINDLER et al., Appellants, v. GALE'S SUPERIOR SUPERMARKET, INC., d.b.a. Gale's Village Market, Appellee.

No. 78421.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided April 16, 2001.

COPYRIGHT MATERIAL OMITTED

Lester S. Potash, for appellants.

Mazanec, Raskin & Ryder Co., L.P.A., John T. McLandrich, Susan E. Rusnak and John T. Hanna, for appellee.

TIMOTHY E. McMONAGLE, Presiding Judge.

Plaintiffs-appellants, Marcia Schindler and her husband, Oswald Schindler, appeal the decision of the Cuyahoga County Common Pleas Court granting the motion for summary judgment filed by defendant-appellee, Gale's Superior Supermarket, Inc., d.b.a. Gale's Village Market. For the reasons that follow, we reverse and remand.

A review of the record reveals that Marcia Schindler ("appellant") went to Gale's Village Market ("Gale's Supermarket") on November 2, 1997, to shop for groceries as she had done on numerous occasions. Near the entrance of the store is a metal rail affixed to the sidewalk for the purpose of keeping shopping carts orderly. As appellant approached the entrance, she tripped over this metal bar and sustained injury.

She thereafter filed a complaint against Gale's Supermarket alleging that its negligence resulted in her injuries. Included in the complaint was a claim for loss of consortium on behalf of appellant's husband, Oswald Schindler. Gale's Supermarket eventually moved for summary judgment on the basis that the metal rail was open and obvious and therefore Gale's Supermarket owed no duty to appellant. Supporting the motion were excerpts of appellant's deposition wherein she testified that she did not see the rail but would have seen it had she looked down while she was walking. Appellant¹ opposed the motion, asserting that the continued viability of the open-and-obvious doctrine is suspect as a result of the Ohio Supreme Court's recent decision in Texler v. D.O. Summers Cleaners & Shirt Laundry Co. (1998), 81 Ohio St.3d 677, 693 N.E.2d 271. The trial court ultimately granted the motion without opinion.

Appellant now appeals and asserts in her sole assignment of error that the trial court improperly granted the motion for summary judgment filed by Gale's Supermarket. Succinctly, she claims that the open-and-obvious doctrine is no longer viable and that Texler requires that the relative fault of the parties be resolved using comparative negligence principles, which she further claims is a jury issue precluding summary judgment.

An appellate court reviews a trial court's decision on a motion for summary judgment de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241, 244-245. Summary judgment is appropriate when, construing the evidence most strongly in favor of the nonmoving party, (1) there is no genuine issue of 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, that conclusion being adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc. (1998), 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201, 203-204, citing Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, paragraph three of the syllabus; see, also, Civ.R. 56(C).

In order to defeat a motion for summary judgment on a negligence claim, a plaintiff must establish that genuine issues of material fact remain as to whether (1) a defendant owed a duty of care, (2) the defendant breached this duty, and (3) the breach was the proximate cause of plaintiff's injury causing damage. Texler, 81 Ohio St.3d at 680, 693 N.E.2d at 273-274; Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142, 539 N.E.2d 614; Menifee v. Ohio Welding Prod., Inc. (1984), 15 Ohio St.3d 75, 15 OBR 179, 472 N.E.2d 707.

An owner or occupier of property owes a duty of ordinary care to invitees to maintain the premises in a reasonably safe condition so that an invitee is not unreasonably or unnecessarily exposed to danger. Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203, 18 OBR 267, 480 N.E.2d 474. While a premises owner is not an insurer of its invitees' safety, the premises owner must warn its invitees of latent or concealed dangers if the owner knows or has reason to know of the hidden dangers. Jackson v. Kings Island (1979), 58 Ohio St.2d 357, 358, 12 O.O.3d 321, 321-322, 390 N.E.2d 810, 812. Invitees likewise have a duty in that they are expected to take reasonable precautions to avoid dangers that are patent or obvious. See Brinkman v. Ross (1993), 68 Ohio St.3d 82, 84, 623 N.E.2d 1175, 1177; Sidle v. Humphrey (1968), 13 Ohio St.2d 45, 42 O.O.2d 96, 233 N.E.2d 589, paragraph one of the syllabus. Whether a duty exists is a question of law for the court to determine. Mussivand v. David (1989), 45 Ohio St.3d 314, 318, 544 N.E.2d 265, 269-270.

Under the open-and-obvious doctrine, an owner or occupier of property owes no duty to warn invitees of hazardous conditions that are open and obvious. Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d 642, 644, 597 N.E.2d 504, 506. The rationale behind 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. Simmers, 64 Ohio St.3d at 644, 597 N.E.2d at 506.

The application of comparative negligence principles, on the other hand, requires the factfinder to apportion the percentage of each party's negligence that proximately caused the plaintiff's damages. See R.C. 2315.19(A)(2). Ordinarily, this is an issue best determined by the jury unless the evidence is so compelling that reasonable minds can reach but one conclusion. Simmers, 64 Ohio St.3d at 646, 597 N.E.2d at 507-508. In such a case, summary judgment is appropriate if the only conclusion a reasonable trier of fact could reach is that the plaintiff was over fifty percent negligent so as to bar recovery under comparative negligence principles. See, e.g., Hayes v. Wendy's Internatl., Inc. (Feb. 16, 1999), Warren App. No. CA98-07-074, unreported, 1999 WL 74602; see, also, Basar v. Steel Serv. Plus (Apr. 27, 2000), Cuyahoga App. No. 77091, unreported, 2000 WL 502875 (McMonagle, J., concurring); Wilson v. PNC Bank, N.A. (May 5, 2000), Hamilton App. No. C-990727, unreported, 2000 WL 543813 (Painter, J., concurring in judgment only).

Appellant urges this court to find that the open-and-obvious doctrine is no longer viable in light of Texler, 81 Ohio St.3d 677, 693 N.E.2d 271. In that case, plaintiff was injured when she tripped over a concrete-filled bucket that had propped a door open. Finding that reasonable minds could differ as to the allocation of negligence between the parties, the Texler court reasoned:

"The legal issue presented here is whether a reasonably prudent person would have anticipated that an injury would result from walking normally on that sidewalk. This court has held that `a pedestrian using a public sidewalk is under a duty to use care reasonably proportioned to the danger likely to be encountered but is not, as a matter of law, required to look constantly downward * * *.' (Citations omitted.) This care requires a pedestrian `to use his senses to avoid injury while walking on a sidewalk, but this does not mean that he is required as matter of law to keep his eyes upon the sidewalk at all times. It may be necessary to keep a lookout for traffic and other pedestrians to avoid collision.'" (Citations omitted.)

Continuing, the court stated "that the question of whether the contributory negligence of a plaintiff is the proximate cause of the injury is an issue for the jury to decide pursuant to the modern comparative negligence provisions of R.C. 2315.19(A)(1)." Id. at 681, 693 N.E.2d at 274.

Indeed, several courts have relied on this language as support in limiting the applicability of the open-and-obvious doctrine, and this court is no exception. See Burks v. Marc Glassman, Inc. (Nov. 16, 2000), Cuyahoga App. No. 76676, unreported, 2000 WL 1714956 (refused to apply open-and-obvious doctrine to completely absolve defendant of any duty and instead found that the issue was one of comparative negligence to be determined by a jury); Riley v. Wendy's Internatl., Inc. (Apr. 29, 1999), Cuyahoga App. No. 73996, unreported, 1999 WL 258187 (whether plaintiff's attention was diverted from perceiving pothole was a question of fact to be decided by jury under comparative negligence principles); Stark v. Glenmoor Prop. Ltd. (Oct. 15, 1998), Cuyahoga App. No. 73474, unreported, 1998 WL 723175 (whether plaintiff was negligent in not perceiving hole is a question of fact to be decided by jury under principles of comparative negligence); see, also, Kerr-Morris v. Equitable Real Estate Invest. Mgt. (1999), 136 Ohio App.3d 331, 334, 736 N.E.2d 552, 555 (dicta suggests that the open-andobvious doctrine "has lost its fundament after the advent of comparative negligence"); Allen v. Foxfire Golf Club, Inc. (Sept. 6, 2000), Pickaway App. No. 99CA18, unreported, at 12, 2000 WL 1281210 (plaintiff's negligence to be compared to the negligence of defendant in creating possible hazard); Leis v. Dayton Med. Imaging II, Ltd. (July 30, 1999), Montgomery App. No. 17684, unreported, at 9, 1999 WL 960765 (reasonable minds could differ over the proper distribution of negligence between the parties); Wehrle v. ABC Supply Co. (Feb. 26, 1999), Hamilton App. No. C-980476, unreported, at 5, 1999 WL 94642 (question of fact as to whether plaintiff's comparative negligence was the proximate cause of his injury and should be decided by a jury under comparative negligence provisions of R.C. Chapter 2315); Hayes v. Wendy's Internatl., Inc. (Feb. 16, 1999), Warren App. No. CA98-07-074, unreported, at 9, 1999 WL 74602 (trier of fact to make determination under comparative negligence statute whether plaintiff has...