Vanderbilt v. Pier 27, LLC

• Decision Date: 25 November 2013
• Docket Number: No. CA2013–02–029.,CA2013–02–029.
• Parties: Amy VANDERBILT, et al., Plaintiffs–Appellants, v. PIER 27, LLC, et al., Defendants–Appellee.
• Court: Ohio Court of Appeals

2 N.E.3d 966

Amy VANDERBILT, et al., Plaintiffs–Appellants,

v.PIER 27, LLC, et al., Defendants–Appellee.

No. CA2013–02–029.

Court of Appeals of Ohio,

Twelfth District, Butler County.

Nov. 25, 2013.

Dennis C. Mahoney, Cincinnati, OH, for plaintiffs-appellants.

Droder & Miller Co., L.P.A., Richard J. Rinear and W. John Sellins, Cincinnati, OH, for defendant-appellee, Pier 27, LLC.

Frost Brown Todd, LLC, Michael E. Nitardy, Florence, KY, for defendant, Anthem Blue Cross & Blue Shield.

OPINION

S. POWELL, J.

{¶ 1} Plaintiff-appellant, Amy Vanderbilt, appeals from the Butler County Court of Common Pleas decision granting summary judgment in favor of defendant-appellee, Pier 27, LLC. For the reasons outlined below, we affirm.

{¶ 2} Pier 27, formerly known as “The Farm,” was a restaurant and bar located in Ross Township, Butler County, Ohio. Pier 27 consisted of an indoor and outdoor bar and seating area, as well as an outdoor stage, pavilion, volleyball court and fire pit. The fire pit was installed shortly after the restaurant was sold in 2000. The fire pit, which was subject to annual fire inspections, was made of brick and mortar arranged in a circle that measured approximately five feet in diameter with a height that came just below the knee that was encompassed by three benches. It is undisputed that Pier 27 held an open fire permit allowing it to operate the fire pit on the premises.

{¶ 3} On the evening of October 2, 2010, Vanderbilt went to Pier 27 to meet friends at a Ross High School alumni reunion. Vanderbilt had been to Pier 27 approximately seven to ten times before and knew the general layout of the area. While at Pier 27, Vanderbilt mingled with friends both inside and outside of the restaurant, during which time she consumed approximately three to four beers. As the evening progressed and the temperature began to drop, Vanderbilt decided to stand next to the fire pit for warmth. However, while standing next to the fire pit, Vanderbilt was inadvertently bumped or nudged by another patron, thereby causing her to lose her balance and fall into the fire pit. As a result of the fall, Vanderbilt suffered a broken right wrist, as well as third-degree burns on her hand.

{¶ 4} Vanderbilt, along with her husband William, subsequently filed a complaint against Pier 27 alleging claims of negligence and loss of consortium. The trial court, however, dismissed the complaint after granting Pier 27's motion for summary judgment. In so holding, the trial court found the fire pit was an open and obvious danger and that Pier 27 owed no duty of care to Vanderbilt. Vanderbilt now appeals from the trial court's decision, raising a single assignment of error for review.

{¶ 5} THE TRIAL COURT COMMITTED ERROR IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEE PIER 27, LLC.

{¶ 6} In her single assignment of error, Vanderbilt argues the trial court erred by granting summary judgment to Pier 27. We disagree.

{¶ 7} Summary judgment is a procedural device used to terminate litigation when there are no issues in a case requiring a formal trial. Roberts v. RMB Ents., Inc., 197 Ohio App.3d 435, 2011-Ohio-6223, 967 N.E.2d 1263, ¶ 6 (12th Dist.). On appeal, a trial court's decision granting summary judgment is reviewed de novo. Moody v. Pilot Travel Ctrs., L.L.C., 12th Dist. Butler No. CA2011–07–141, 2012-Ohio-1478, 2012 WL 1107733, ¶ 7, citing Burgess v. Tackas, 125 Ohio App.3d 294, 296, 708 N.E.2d 285 (8th Dist.1998). In applying the de novo standard, the appellate court is required to “us[e] the same standard that the trial court should have used, and * * * examine the evidence to determine whether as a matter of law no genuine issues exist for trial.” Bravard v. Curran, 155 Ohio App.3d 713, 2004-Ohio-181, 803 N.E.2d 846, ¶ 9 (12th Dist.), quoting Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d 378, 383, 701 N.E.2d 1023 (8th Dist.1997).

{¶ 8} Pursuant to Civ.R. 56, a trial court may grant summary judgment only when (1) there is no genuine issue of any material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) the evidence submitted can only lead reasonable minds to a conclusion that is adverse to the nonmoving party. BAC Home Loans Servicing, L.P. v. Kolenich, 194 Ohio App.3d 777, 2011-Ohio-3345, 958 N.E.2d 194, ¶ 17 (12th Dist.). The party moving for summary judgment bears the initial burden of demonstrating that no genuine issue of material fact exists. Touhey v. Ed's Tree & Turf, L.L.C., 194 Ohio App.3d 800, 2011-Ohio-3432, 958 N.E.2d 212, ¶ 7 (12th Dist.), citing Dresher v. Burt, 75 Ohio St.3d 280, 292–293, 662 N.E.2d 264 (1996). Once this burden is met, the nonmoving party must then present evidence to show that there is some issue of material fact yet remaining for the trial court to resolve. Smedley v. Discount Drug Mart, Inc., 190 Ohio App.3d 684, 2010-Ohio-5665, 943 N.E.2d 1078, ¶ 11 (12th Dist.). In determining whether a genuine issue of material fact exists, the evidence must be construed in the nonmovingparty's favor. Walters v. Middletown Properties Co., 12th Dist. Butler No. CA2001–10–249, 2002-Ohio-3730, 2002 WL 1625682, ¶ 10.

{¶ 9} To recover on a claim for negligence, such as the case here, the plaintiff must prove (1) that the defendant owed the plaintiff a duty, (2) that the defendant breached that duty, and (3) the breach of the duty proximately caused the plaintiff's injury. Gentry v. Collins, 12th Dist. Warren No. CA2012–06–048, 2013-Ohio-63, 2013 WL 142047, ¶ 13, citing Wellman v. E. Ohio Gas Co., 160 Ohio St. 103, 108–109, 113 N.E.2d 629 (1953). The existence of a duty is fundamental to establishing actionable negligence, without which there is no legal liability. Uhl v. Thomas, 12th Dist. Butler No. CA2008–06–131, 2009-Ohio-196, 2009 WL 119844, ¶ 10. A determination of whether a duty exists is a question of law for the court to decide. Williamson v. Geeting, 12th Dist. Preble No. CA2011–09–011, 2012-Ohio-2849, 2012 WL 2371561, ¶ 13, citing Mussivand v. David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989).

{¶ 10} It is undisputed that Vanderbilt was a business invitee of Pier 27 at the time of her injury. Generally, an owner or occupier of a business owes its invitees a duty of ordinary care in maintaining the premises in a “reasonably safe condition” so that its customers are not exposed to danger. McQueen v. Kings Island, 12th Dist. Warren No. CA2011–11–117, 2012-Ohio-3539, 2012 WL 3158745, ¶ 10, citing Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 204, 480 N.E.2d 474 (1985). “A business owner, however, is not an insurer of its customer's safety and owes no duty to protect customers from all conceivable dangers they may face while on the owner's premises.” Hartman v. Meijer Stores Ltd. Partnership, 12th Dist. Butler No. CA2010–03–065, 2010-Ohio-5311, 2010 WL 4340644, ¶ 14. In turn although a landowner generally owes a duty to its customers, the open and obvious doctrine obviates this duty “and acts as a complete bar to any negligence claims.” Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 5. Thus, “[w]here the danger is open and obvious, a landowner owes no duty of care to individuals lawfully on the premises.” Id. at ¶ 14.

{¶ 11} “In cases involving obvious and common conditions, such as fire, height, and bodies of water, the law generally assumes that persons who encounter these conditions will take care to avoid any danger inherent in such condition.” Bucheleres v. Chicago Park Dist., 171 Ill.2d 435, 448, 216 Ill.Dec. 568, 665 N.E.2d 826 (1996); see alsoRestatement of the Law 2d, Torts (1965), Section 339, comment j (“[t]here are many dangers, such as those of fire and water, or of falling from a height, which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child of an age to be allowed at large”). The rationale behind this rule is that the nature of the hazard serves as its own warning, and guests then have a corresponding duty to take reasonable precautions to avoid dangers that are patent or obvious. Galinari v. Koop, 12th Dist. Clermont No. CA2006–10–086, 2007-Ohio-4540, 2007 WL 2482673, ¶ 12;Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 644, 597 N.E.2d 504 (1992).

{¶ 12} Yet, even then, the dangerous condition need not be actually observed by the claimant to be considered open and obvious. Barnett v. Beazer Homes, L.L.C., 180 Ohio App.3d 272, 2008-Ohio-6756, 905 N.E.2d 226, ¶ 31–32 (12th Dist.). Instead, the determinative question is whether the condition was discoverable or discernible by one acting with ordinary care under the circumstances. Packman v. Barton, 12th Dist. Madison No. CA2009–03–009, 2009-Ohio-5282, 2009 WL 3165605, ¶ 33;French v. New Paris, 12th Dist. Preble No. CA2010–05–008, 2011-Ohio-1309, 2011 WL 947037, ¶ 22. This “depends upon the particular circumstances surrounding the hazard.” Barnett at ¶ 32, quoting Olivier v. Leaf & Vine, 2d Dist. Miami No.2004 CA 35, 2005-Ohio-1910, 2005 WL 937928, ¶ 31;Sack v. Skyline Chili, Inc., 12th Dist. Warren No. CA2002–09–101, 2003-Ohio-2226, 2003 WL 2012645, ¶ 10. “Hazards that have been deemed open and obvious are those that are not concealed and are discoverable by ordinary inspection.” French at ¶ 22, citing Parsons v. Lawson Co., 57 Ohio App.3d 49, 50–51, 566 N.E.2d 698 (5th Dist.1989).

{¶ 13} Although acknowledging that fire is generally considered an open and obvious hazard, Vanderbilt argues the open and obvious doctrine does not apply to bar her negligence claim since the “fire pit was, without doubt, an ‘unreasonably dangerous' condition.” To that end, Vanderbilt argues the open and obvious doctrine merely serves to eliminate her claim alleging a breach of the duty to warn, and not her claim that Pier 27 failed to maintain its premises in a reasonably safe condition. In support of this claim, Vanderbilt implores this court to adopt a New York appellate court's decision in Westbrook v....