The opinion
[Cite as Smith-Huff v. Wal-Mart Stores, Inc., 2015-Ohio-5238.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Stephanie Smith-Huff, :
Plaintiff-Appellant, :
No. 15AP-454
v. : (C.P.C. No. 13CV-13609)
Wal-Mart Stores, Inc., : (ACCELERATED CALENDAR)
Defendant-Appellee. :
D ECISION
Rendered on December 15, 2015
Barr, Jones & Associates LLC, and Adam G. Burke, for
appellant.
Reminger Co., LPA, Patrick Kasson, and Keona R. Padgett,
for appellee.
APPEAL from the Franklin County Court of Common Pleas
HORTON, J.
{¶ 1} Plaintiff-appellant, Stephanie Smith-Huff ("Smith-Huff"), appeals from the
decision of the Franklin County Court of Common Pleas granting defendant-appellee's,
Wal-Mart Stores, Inc. ("Wal-Mart"), motion for summary judgment. For the following
reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On December 18, 2013, Smith-Huff filed a complaint in the Franklin
County Court of Common Pleas alleging that Wal-Mart was negligent, and therefore liable
to her for injuries stemming from a trip and fall on December 18, 2011, at the Wal-Mart
store located at 6674 Winchester Boulevard, Canal Winchester, Ohio ("the store"). (R. 5.)
No. 15AP-454 2
{¶ 3} Smith-Huff had been to the store before but was not a regular customer. (R.
53.) After shopping for about 45 minutes, Smith-Huff was walking forward, looking
straight ahead and not at any items, and talking to a former co-worker when she fell
forward. (R. 53.) Smith-Huff testified: "I went to walk forward and my left foot seemed to
have been not moving. It was like I went to go lift my foot and then I just began to fall."
(R. 53.) Wal-Mart does not dispute that Smith-Huff tripped over the bottom shelf of a
display fixture, which the parties call an "endcap." (R. 5, 53, 55.)
{¶ 4} Smith-Huff admits that the store was well lit, that nothing blocked her view
of the endcap, and that she thinks she would have seen it if she had been looking down.
(R. 53.) Smith-Huff was not carrying anything at the time, and, although she had a
shopping cart, it was not directly in front of her. (R. 53.) Additionally, the endcap was
gray in color while the flooring was brown. (R. 53.)
{¶ 5} Smith-Huff testified that, after her fall, she heard a store employee, who she
assumed was a manager, ask other employees, "why wasn't there anything on the
endcap." (R. 53.) Smith-Huff testified that the manager then took either sweaters or gift
boxes and set them on the endcap. (R. 53.)
{¶ 6} On February 11, 2015, Wal-Mart moved for summary judgment on the
grounds that it did not owe Smith-Huff a duty to protect her from the endcap because it
was an open and obvious hazard. Wal-Mart argues that the undisputed facts reveal the
endcap was large, was discernible from the floor, nothing blocked it from Smith-Huff's
view, and Smith-Huff would have seen it had she looked down prior to her fall.
{¶ 7} The trial court found that:
[A]fter careful consideration, even in construing the facts in a
light most favorable to Plaintiff, the Court finds the evidence
is insufficient to create an issue of fact as to application of the
open and obviousness doctrine. The photograph of the display
plainly shows that the bottom shelf, even empty, is an open
and obvious hazard. * * * Plaintiff testified that nothing
blocked her view of the endcap, the store was well lit, and she
likely would have seen the endcap had she been looking down.
As noted by the Ohio Supreme Court, a premises owner is
under no duty to protect a patron from dangers which are so
obvious that one would "reasonably be expected to discover
them and protect [oneself] against them." Sidle v. Humphrey,
13 Ohio St.2d 45 (1968). The Court finds that this is the
circumstance presented here.
No. 15AP-454 3
Based on the foregoing, Defendant's Motion for Summary
Judgment is well-taken and GRANTED. The Court finds that
the hazard which caused Plaintiff's fall was open and obvious,
and therefore, Defendant did not owe Plaintiff any duty of
care with regard to said condition. Accordingly, judgment is
hereby entered in favor of Defendant on the Complaint as a
matter of law.
(Emphasis sic.) (Decision and Entry, 8-9.)
II. ASSIGNMENT OF ERROR
{¶ 8} Smith-Huff appeals, assigning a single error:
THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT FOR WAL-MART STORES, INC.
III. MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED
{¶ 9} Appellate review of summary judgment motions is de novo. Helton v. Scioto
Cty. Bd. of Commrs., 123 Ohio App.3d 158, 162 (4th Dist.1997). "When reviewing a trial
court's ruling on summary judgment, the court of appeals conducts an independent
review of the record and stands in the shoes of the trial court." Mergenthal v. Star Bank
Corp., 122 Ohio App.3d 100, 103 (12th Dist.1997). We must affirm the trial court's
judgment if any of the grounds raised by the movant at the trial court are found to support
it, even if the trial court failed to consider those grounds. Coventry Twp. v. Ecker, 101
Ohio App.3d 38, 41-42 (9th Dist.1995). However, the party against whom the motion for
summary judgment is made is entitled to have the evidence most strongly construed in
that party's favor. Civ.R. 56(C); State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio
St.3d 181, 183 (1997).
{¶ 10} Ordinarily, the owners of premises are liable to an invitee who, although
using due care for his own safety, is injured by reason of an unsafe condition of the
premises which is known to the owner but not to the invitee and which the owner has
negligently allowed to exist. Englehardt v. Phillips, 136 Ohio St. 73 (1939); Black v.
Kroger Co., 10th Dist. No. 87AP-499 (Mar. 22, 1988). However, a premises owner is
under no duty to protect a patron from dangers of which the patron is aware or which are
so obvious that one would "reasonably be expected to discover them and protect [oneself]
against them." Sidle v. Humphrey, 13 Ohio St.2d 45 (1968); Ratcliff v. Wyandotte
No. 15AP-454 4
Athletic Club, L.L.C., 10th Dist. No. 11AP-692, 2012-Ohio-1813, ¶ 16. "The doctrine's
rationale is that because the open-and-obvious nature of the hazard itself serves as a
warning, business owners may reasonably expect their invitees to discover the hazard and
take appropriate measures to protect themselves against it." Thompson v. Ohio State
Univ. Physicians, Inc., 1oth Dist. No. 1oAP-612, 2o11-Ohio-2270, ¶ 11.
{¶ 11} "Open-and-obvious dangers are those not hidden, concealed from view, or
undiscoverable upon ordinary inspection." Lydic v. Lowe's Cos., Inc., 1oth Dist. No. o1AP-
1432, 2oo2-Ohio-5oo1, ¶ 1o. "A person does not need to observe the dangerous condition
for it to be an 'open-and-obvious' condition under the law; rather, the determinative issue
is whether the condition is observable" or if "plaintiff could have seen the condition if he
or she had looked." Thompson at ¶ 12. "In cases where the danger giving rise to plaintiff's
cause of action is found to be open and obvious, the open and obvious doctrine obviates
the shopkeeper's duty to warn its invitees, and the doctrine acts as a complete bar to a
claim for negligence." Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 80, 2003-Ohio-
2573, ¶ 5.
{¶ 12} "However, attendant circumstances can serve as an exception to the open
and obvious doctrine." Mayle v. Ohio Dept. of Rehab. & Corr., 1oth Dist. No. o9AP-451,
2o1o-Ohio-2774, ¶ 20. "This doctrine applies where the attendant circumstances are such
as to divert the attention of the individual and significantly enhance the danger of the
hazard and thus contribute to the fall." Id. "To serve as an exception to the open and
obvious doctrine, an attendant circumstance must be 'so abnormal that it unreasonably
increased the normal risk of a harmful result or reduced the degree of care an ordinary
person would exercise.' " Id., quoting Cummin v. Image Mart, Inc., 1oth Dist. No. o9AP-
541, 2004-Ohio-284o, ¶ 1o. "The attendant circumstances must, taken together, divert
the attention of the pedestrian, significantly enhance the danger of the defect, and
contribute to the fall." Id. "Although not an exhaustive list, attendant circumstances can
include the following: poor lighting, a large volume of pedestrian traffic, the visibility of
the defect, the overall condition of the walkway, and whether the nature of the site is such
that one's attention would be easily distracted." Id. at ¶ 22.
{¶ 13} Smith-Huff urges this court to adopt the reasoning of the court in
Mulcahy v. Best Buy Stores, LP, 5th Dist. No.13CAE060051, 2014-Ohio-1163. We note
No. 15AP-454 5
that Mulcahy is not binding on this court and the facts regarding whether or not the
"bottom shelf" in that action was open and obvious are distinguishable from the present
facts. As such, this court is persuaded to follow our past precedent.
{¶ 14} We find that our decision in Boroff v. Meijer Stores Ltd. Partnership, 1oth
Dist. No. o6AP-1150 (Mar. 30, 2007), supports Wal-Mart's argument. In Boroff, the
plaintiff was walking around a display through what she apparently thought was an open
space when she tripped over the decorative black skirt. Id. at ¶ 3. In affirming the trial
court's award of summary judgment in favor of the defendant, we ruled that the display
was an open and obvious hazard and that there were no attendant circumstances creating
an exception to the open and obvious doctrine. Id. at ¶ 18-19.
{¶ 15} Here, Smith-Huff also apparently assumed the space was empty, without
looking, and walked into the endcap. Smith-Huff admitted nothing blocked her view and
that she was simply looking straight ahead and did not notice the endcap jutting out from
the display. She did not testify, nor has she argued, that she was distracted in any manner.
Smith-Huff admitted that nothing was blocking her view, the store was well-lit, and that
she would have seen the endcap had she been looking down. Smith-Huff's own
photograph is also compelling evidence that the display was open and obvious, and was
not hidden or non-discoverable upon ordinary inspection.
{¶ 16} Based on our review of the undisputed facts and the relevant law, we agree
with the trial court that the endcap was open and obvious. Also, there were no attendant
circumstances creating an exception to the open and obvious doctrine. Therefore, there is
no genuine issue of material fact for trial. For the foregoing reasons, Smith-Huff's
assignment of error is overruled.
IV. DISPOSITION
{¶ 17} Having overruled Smith-Huff's single assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN, P.J. and SADLER, J., concur.
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