[Cite as Hammond v. Lotz , 2022
- Ohio
- 3542.]



### IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

CAROL HAMMOND , Plaintiff

- Appell ant ,

VS
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JAY LOTZ , and CATHY LOTZ, Defendant s - Appell ee s ,

a nd
GROUP MANAGEMENT SERVICES, INC. Defendant

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: APPEAL NO. C

- 220002 TRIAL NO. A

- 2100139

O P I N I O N.

Civil Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is: Affirmed Date of Judgment Entry on Appeal: October 5, 2022

Gregory S. Young Co., LPA , and Jason M. Persinger, for Plaintiff

- Appell ant , Eagen & Wykoff Co., LPA, and John R. Wykoff , for Defendant s - Appell ee s .OHIO FIRST DISTRICT COURT OF APPEALS

2 C ROUSE , Judge. 

### {¶1} Plaintiff

- appellant Carol Hammond appeals from the judgment of the
Hami lton County Court of Common Pleas granting summary judgment on her negligence claim in favor of defendant s - appellees Jay and Cathy Lotz (the “Lotzes”). 1
Because we agree with the trial court that the condition causing Hammond’s injur ies was open and obviou s and that plaintiff failed to demonstrate attendant
circumstances , we affirm the judgment of the trial court. Facts and Procedure 

### {¶2} At all times relevant to this action, Hammond was employed as a driver for Fed E x. As a driver, H ammond drove a Fed E x truck and delivered Fed E x p ackages to homes and businesses . On the morning of October 19, 2019, Hammond parked her Fed E x box truck on the street in front of the Lotzes ’ home , just be y ond their driveway , to deliver a package to them

. Hammond set the long, skin ny package on the floor of the truck and stepped down onto the ground , facing the ir home. Hammond testified that she then turned around, grabbed the package, and took two steps toward s the Lotzes’ home

— planning to walk through their front yard

. Hammond t hen twisted her left foot in a low

- lying corner of the Lotzes’ lawn (the “edging di tch”) , fell, and broke her left wrist trying to catch herself. Testimony from Hammond, Jay Lotz, and the Lotzes’ neighbor indicate d that the edging ditch was less than two inches wide and less

1 Defendan t Group Management Services, Inc. , was included as a p arty to the complaint for subrogation purposes , but did not file a brief on appeal. In its answer, Group Management Services, Inc. , identified itself as a worker’s compensation self

- insured en tity for Fed E x .OHIO FIRST DISTRICT COURT OF APPEALS

3 than two inch es deep , and that it was created by Jay Lotz’s st ring trimmer as part of his routine lawn maintenance

. 2 

### {¶3} Hammond filed a complaint against the Lotzes in the Hamilton County Court of Common Pleas , alleging negligence and d emanding judgment in an amount exceeding $25,000

. On May 13, 2021, the Lotzes fil ed a motion for summary judgment

. In their motion, the Lotzes argued that they did not owe Hammond a duty of care because the edging ditch was open and obvious . The trial c ourt agreed and
g ranted summary judgment in their favor

. Specifically, the trial court held that “the edging ditch was an open and obvious hazard and that Plaintiff failed to provide evidence of any attendant circumstances to overcome Defendant’s Motion.” Hammond timely appealed. Law and Analysis 

### {¶4} In two assi gnments of error, Hammond contends th at there is a genuine issue of material fact as to whether the edging ditch was open and obvious and , similarly, whether there were attendant circumstances surroun ding her fall

. 

### {¶5} We review a trial court’s grant of summar y judgment de novo. Helton v. Fifth Third Bank , 1st Dist. Hamilton No. C

- 210451, 2022
- Ohio

- 1023, ¶ 12, citing Grafton v. Ohio Edison Co ., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). “Summary judg ment is appropriately granted when there exists no genui ne issue of material fact, the party moving for summary judgment is entitled to judgment as a matter of law,

2 Jay Lotz approximated the drop from the curb to the lawn in the area of the edging ditch to be about one inch. He testified that his trimmer creates a small divot in the ground that is approximately one

- half

- inch wide and one

- half

- inch deep. Hammond described the edging ditch as being slightly larg er and estimated that it was approximately one

- to

- two

- inches wide, and one - to

- two

- inches deep. The Lotzes’ neighbor estimated that the gap created by the edging was less than one inch.OHIO FIRST DISTRICT COURT OF APPEALS

4 and the evidence, when viewed in favor of the nonmoving party, permits only one reasonable conclusion that is adverse to that party.” Helton at ¶ 1 2. 

### {¶6} To establish negligence, a plaintiff must show that “(1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached that duty; and (3) the plaintiff suffered injury proximately caused by the defendant’s breach of duty.” Patterson v. Adl eta , Inc ., 2018

- Ohio

- 3896, 119 N.E.3d 982 , ¶ 7 (1st Dist.)

. 

### {¶7} In premises

- liability cases, the defendant’s duty is determined by the type of relationship between the parties. Lang v. Holly Hill Mo tel, Inc ., 122 Ohio St.3d
120, 2009
- Ohio

- 2495, 909 N.E.2d 120 , ¶ 10. In this case, the parties do not dispute that Hammo nd was a business invitee. See Light v. Ohio Univ ., 28 Ohio St.3d 66, 68, 502 N.E.2d 611 (1986)

. (“ Business invitees are persons who come upon the premises of another, by invitation, express or implied, for some purpose which is beneficial to the owner. ” )

. Accordingly , the Lotzes had a duty to maintain the premises in a reasonably safe condition and to warn invitees of hidden dangers. See id. ; Armstrong v. Meade , 6th Dist. Lucas No. L

- 06

- 1322, 2007
- Ohio

- 2820 , ¶ 6

. 

### {¶8} But, when a danger is “open and obvious ,” landowners do not owe a duty of care to invitees on the premises. Asher v. Glenway Real Estate, LLC , 2019
- Ohio

- 4851, 149 N.E.3d 103 5 , ¶ 15 ( 1st Dist.) ; see Armstrong v. Best Buy Co. , 99 Ohio St.3d 79, 2003
- Ohio

- 2573, 788 N.E.2d 1088 , ¶ 5 (“ the open - and

- obvious doctrine obviates the duty to warn and acts as a complete bar to any negligence claims. ”).

“ Thus, when a plaintiff is injured by an open and obvious danger, summary judgment is generally appropriate because the duty of care necessary to e stablish negligence does not exist as a matter of law. ” Holly Hill Motel, Inc

. at ¶ 11.OHIO FIRST DISTRICT COURT OF APPEALS

5 

### {¶9} A danger is open and obvious when it is “ not hidden, co ncealed from view, or undiscoverable upon ordinary inspection.” Thompson v. Ohio State Univ. Physicians, Inc. , 10 th Dist. Franklin No. 10AP

- 612, 2011

- Ohio

- 2270 , ¶ 12; see Esterman v. Speedway LLC, 1st Dist. Hamilton No. C

- 140287, 2015

- Ohio

- 659, ¶ 7 ; McLaug hlin v. Andy ’s Coin Laundries, LLC , 2018

- Ohio

- 1798, 112 N.E.3d 57 , ¶ 16 (1st Dist.) ( holding that a rotating drum in a washing machine was an open

- and

- obvious danger because, “[i]t was not hidden or concealed, and it was immediately apparent by looking at the machine.”). 

### {¶10} “[A] person does not have to actually see the dangerous condition prior

to the fal l in order for the condition to be open and obvious , and courts have found no duty to warn existed where the condition could have been seen had a person loo ked.” (Emphasis added

. ) Speedway at ¶ 7, citing Thompson at ¶ 12. Essentially , the question is whether the condition was observable. 

### {¶11} Because the open and obvious doctrine “ ‘relates to the threshold issue of duty,’ * * * courts must consider ‘the nature of the dangerous condition itself, as opposed to the nature of the plaintiff’s conduc t in encountering it.’ ” Meade , 6th Dist.
Lucas No. L

- 06

- 1322, 2007
- Ohio

- 2820 , at ¶ 8 , quoting Best Buy , 99 Ohio St.3d 79,
2003
- Ohio

- 2573, 788 N.E.2d 1088 , at ¶ 13 ; see Na geotte v. Cafaro Co., 160 Ohio App.3d 702, 2005

- Ohio

- 2098, 828 N.E.2d 683 , ¶ 28 (6th Dist.) (describing “typical open and obvious cases” as those “that could have been avoided by individuals if they had taken proper precautionary measures, such as paying a ttention to where they were walking.”). 

### {¶12} While open

- and

- obvious inquiries are question s of law, the presence of

“ attendant circumstances can create a genuine issue of material fact.” Speedway , 1stOHIO FIRST DISTRICT COURT OF APPEALS

6 Dist. Hamilton No. C

- 140287 , 2015
- Ohio

- 659 , at ¶ 11
. Not ju st any circumstance is an attendant circumstance, however. Rather, attendant circumstances are those that, when considered together , “ (1) divert the attention of the pedestrian, (2) significantly enhance the danger of the defect, and (3) contribute to the fall. ” Id., quoting Shepherd v. City of Cincinnati , 168 Ohio App.3d 444, 2006

- Ohio

- 4286, 860 N.E.2d 808 , ¶ 31 (1st Dist.)

. 

### {¶13} Attendant circumstances mus t pose a “ ‘significant distraction’ and cannot include ‘regularly encountered ordinary, or common circu mstances.’ ” Speedway at ¶ 11, quoting Haller v. Meijer, Inc. , 10th Dist. Franklin No.11AP

- 290,

2012
- Ohio

- 670, ¶ 10 , and Colville v. Meijer Stores Ltd. , 2d Dist. Miami No. 2011

- CA

011, 2012
- Ohio

- 2413, ¶ 30 ; see Cummin v. Image Mart, Inc., 10th Dist. Frankl in No. 03AP

- 1284, 2004

- Ohio

- 2840 , ¶ 10 (holding that an attendant ci rcumstance 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.”). Finally, attendant

c ircumstances do not include the individual’s activity at the time of the fall , unless their attention is diverted by “ ‘an unusual circumstance of the property owner’s own making’ ” Speedway at ¶ 11 , quoting McConnell v. Margello , 10th Dist. Franklin No.
06AP

- 1235, 2007
- Ohio

- 4860, ¶ 1 7
. For instan ce, the Fourth District held that a man’s fatigue and the fact t hat he was carrying an oxygen tank were not attendant circumstances when he fell on a set of hotel steps. Lang v. Holly Hill Motel, Inc. , 4th
Dist. Jackson No. 06CA18, 2007
- Ohio

- 3898, ¶ 27 , a ff’d, 122 Ohio St.3d 120,
2009
- Ohio

- 2495, 909 N.E.2d 120 ; see Isaacs v. Meijer, Inc. , 12th Dist. Clermont No. CA2005

- 10
- 098, 2006

- Ohio

- 1439, ¶ 19 (“ the fact that appellant was carrying six boxesOHIO FIRST DISTRICT COURT OF APPEALS

7 of frozen dinners was clearly her choice and within her control and did not prevent her from looking where she was walking. ”). 

### {¶14} In Meade , 6th Dist. Lucas No. L

- 06

- 1322, 2007
- Ohio

- 2820, the Sixth
District was confronted with a set of facts like those in this case, when a ma il carrier fell after tripping on a six

- inch depression between a homeowner’s driveway and the bricks lining the driveway. T he court reasoned that the condition was open and obvious because it was visible to the naked eye in photographs and visibility was clear. Id. at ¶ 16

. Moreover, the court held that the mail carrier’s unfamiliarity with the residence was not an attendan t circumstance because “ [u] nfamiliar it y would tend to increase, not decrease, the degree of care an ordinary person would exercise.” Id. 

### {¶15} In this case, we hold that the edging ditch was an open - and

- obvious condition . The area was not hidden or concealed from view . Hammond testified that , not only could she see the edging ditch after she fell, but there were no rocks, trees, or tall gr ass es concealing the edging ditch. The Lotzes’ neighbor also testified that, while he did not observe any indentations greater than two inches in the lawn, the e dging ditch created by the trimming could be seen easily, stating, “You can see it easy. * * * it’s not like some [grass] is overhanging

– 0ver that.” Moreover, Hammond presented no testimony or other evidence that she looked even once at where she was st epping. Rather, her testimony suggests that she was looking towards the home while exiting he r truck and preparing to traverse the lawn

. Photographs of the scene submitted with Hammond's deposition show that the area is not hidden or undiscoverable. The first assignment of error is overruled. 

### {¶16} Hammond has also failed to demonstrate the presence o f any attendant circumstances. Hammond contends that we should consider the fact that this was herOHIO FIRST DISTRICT COURT OF APPEALS

8 first time delivering to the Lotzes’ home. However, we agree with the Sixth District’s reasoning that this should increase, not decrease , Hammond’s degree of care. See Meade , 6th Dist. Lucas No. L

- 06

- 1322, 2007
- Ohio

- 2820, at ¶ 16. 

### {¶17} Hammond suggests that the other attendant circumstances that contributed to her fall include her decision to park adjacent to the front yard, her focus on delivering the package , and the fact that she was on ly able to take two steps out of her vehicle before she fell. However , we fail to see how any of these circumstances

were “significant distractions

. ” See Speedway, 1st Dist. Hamilton No. C

- 140287 , 2015
- Ohio

- 659 , at ¶ 11. Mo reover, attendant circumstances do not include a person’s activity at the time of the fall unless the condition is of the property owner’s own making

. Id. Finally, while Hammond argues that the size of the package was another attendant circumstance, she t estified that , “ [i] t was pretty light. It was something really light in it .” Hammond also testified that the package did not block her view. Thus, Hammond has not demonstrated the existence of any attendant circumstances in this case that create a genui ne issue of material fact. The second assignment of error is overruled. Conclusion 

### {¶18} In light of the foregoing analysis, we overrule Hammond’s first and second assignments of error and affirm the judgment of the trial court. Judgment affirmed

. 

### Z AYAS 

### , P.J., and W INKLER 

### , J., concur.

Please note : The court has recorded its entry on the date of the release of this opinion

.