[Cite as Stewart v. ST Performing Arts, L.L.C. , 2019-Ohio-4508.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

Tania Stewart Court of Appeals No. L-19-1023 Appellant Trial Court No. CI0201702135

v. ST Performing Arts, LLC, et al. DECISION AND JUDGMENT Appellees Decided: November 1, 2019

* * * * * Taylor R. Ward, for appellant. Paul R. Bonfiglio, for appellees.

* * * * * MAYLE, P.J. {¶ 1} Appellant, Tania Stewart, appeals the trial court’s January 23, 2019 decision granting summary judgment in favor of appellees ST Performing A rts, LLC and Stranahan Theater Property Holdings, LLC. For the reasons that follow, we affirm the trial court’s judgment.2. I. Background {¶ 2} Appellees, ST Performing Arts, LLC and Stranahan Theater Proper ty Holdings, LLC, own and operate the Stranahan Theater in Toledo, Ohio. On May 4, 2014, appellant Tania Stewart and a friend attended an evening performance of West Side Story at appellees’ theater. Upon their arrival at the theater , Stewart’s friend dropped her off at the front entrance because she was wearing high-heeled s hoes. Stewart’s friend then parked her vehicle in the theater’s parking lot and walked to the theater separately. {¶ 3} Stewart testified that, by the time the show concluded around 9 :30 p.m., it was “completely dark” outside. Stewart and her friend left the theater through a different

door than the one Stewart had entered before the show. After e xiting, they began walking toward the parking lot. To reach the parking lot, Stew art and her friend needed to cross a driveway that extended across the entire frontage of the theater. Stewart described the exterior of the theater, including the parking lo t, as being so poorly lit that she needed to use lights from moving vehicles to illuminate her intended path. {¶ 4} After crossing the driveway, Stewart encountered a sidewalk tha t separated the driveway from the parking lot. Stewart testified that, bec ause she had previously entered the front door of the theater before the show, she was unaware of the presence of the sidewalk as she approached it. She also testified that she was looking down as she was walking, but she did not see the sidewalk “because it was d ark” and “[a] car had already gone by,” so she did not have any car lights to help he r navigate.3. {¶ 5} As Stewart stepped toward the sidewalk, her foot landed on the edge of the curb and it “crumbled” underneath the weight of her step. Stew art fell to the ground and immediately felt pain in her right wrist, right elbow, right sh oulder, and left knee. She also noticed bleeding from an abrasion incurred on her left kne e. Stewart’s friend assisted her to the vehicle and transported Stewart home. 1 {¶ 6} Three days after the incident, Stewart returned to the theater parking lot to take pictures of the sidewalk where she fell. These photograph s were utilized in depositions and are part of the record on review. {¶ 7} Stewart ultimately filed her lawsuit alleging that appellees we re negligent by failing to “keep and maintain the premises in a reasonably safe manner, condition and state of repair.” Appellees’ joint answer generally denied the allegations. Appellees asserted two affirmative defenses relevant to this appeal: (1) “Plaintiff’s Complaint is barred or precluded because the condition upon which she fell w as an open and obvious and/or commonly encountered condition on the premises,” and (2) “if there was a dangerous condition, defendant had no notice of any dangerous c ondition.” {¶ 8} On November 30, 2018, appellees filed their motion for summary judgment. Appellees initially argued that the “crumbling” condition of th e sidewalk was an open and obvious hazard and, therefore, they owed no duty to warn ap pellant of its presence. Stewart opposed appellees’ motion on December 10, 2018. Stewar t argued that the

1 Stewart’s subsequent medical treatment, including emergency tr eatment later the same evening, are not relevant to the issues presented in this appea l.4. condition of the sidewalk was not an open and obvious condition but instead was a latent defect that should have been discovered by appellees upon reaso nable inspection. In their reply brief filed on December 20, 2018, appellees argued that i f the dangerous condition of the sidewalk was in fact unobservable, as Stewart argued, th ey could not have been on notice of the latent defect without performing unreasonable ins pections and therefore

could not be held liable. {¶ 9} Stewart’s sur-reply, filed January 14, 2019, argued the decayin g condition of the premises, including the general area where she fell, was su fficient to have put appellees on notice of the latent defect and, therefore, appell ees breached their duty to maintain and repair the latent condition which caused Stewart’s fall. Appellees’ surreply, filed January 22, 2019, countered that Stewart’s inconsi stent arguments precluded her from proving the causation element of her claim. That is, appellees argued that if the condition of the premises was sufficient to put appellees on no tice of a latent defect, then the condition was also an open and obvious hazard. {¶ 10} On January 23, 2019, the trial court entered an order granting appellees’ motion for summary judgment. The trial court concluded that ap pellees could not be held liable because the dangerous condition of the sidewalk was an “ open and obvious defect[]” and, in addition, appellees are “not liable for condi tions [they] did not know about and could not know about without taking unreasonably exce ssive investigative maintenance measures.” Under either scenario, the trial court concluded, appellees could5. not be held liable for Stewart’s claimed injuries. Based on th is conclusion, the trial court entered summary judgment in appellees’ favor. {¶ 11} Stewart timely appealed the trial court’s judgment and identifi es four assignments of error for our review: 1. The trial court erred in granting summary judgment by conf lating the open and obvious standard with the duty and breach of an ow ner to reasonably maintain the premises. 2. The trial court erred in granting summary judgment and fin ding the fact that the sidewalk would not support [appellant’s] weig ht to be open

and obvious. 3. The trial court erred in granting summary judgment and fin ding no issue of fact that appellee did not breach its duty to reaso nably maintain and inspect the premises. 4. The trial court erred in granting summary judgment by find ing Appellee could not have breached its duty of care and had been on notice of latent defects unless excessive inspection tests were used, bec ause there were no facts to support the Court’s conclusion. II. Law and Analysis {¶ 12} We review the grant or denial of a motion for summary judgment de novo, applying the same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts. , 61 Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989); Grafton v. Ohio Edison Co. , 776. Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Under Civ.R. 56(C) , summary judgment is appropriate where (1) no genuine issue as to any material fact exists; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, and viewing the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the nonmoving party. Harless v. Willis Day Warehousing Co. , 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978). {¶ 13} On a motion for summary judgment, the moving party has the burd en of demonstrating that no genuine issue of material fact exists. Dresher v. Burt , 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). In doing so, the moving party must point to some evidence in the record in the form of “pleadings, depositi ons, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action[.]” C iv.R. 56(C); Dresher at 292- 293. The burden then shifts to the nonmoving party to provide evidence showing that a genuine issue of material fact does exist. Dresher at 293. The failure to satisfy this reciprocal burden warrants judgment against the nonmoving party

. Id. at 293. 1. The Trial Court did not “conflate” the open and obvious sta ndard with its analysis of appellees’ breach of duty. {¶ 14} In her first assignment of error, Stewart argues the trial cour t employed an incorrect legal standard when analyzing whether summary judgmen t was appropriate— which, she argues, caused the trial court to reach the wrong co nclusion. That is, Stewart7. claims that the trial court erred by “conflating the open and o bvious standard with the duty and breach of an owner to reasonably maintain the premises .” We disagree. {¶ 15} To establish a cause of action for negligence, a plaintiff must show “the existence of a duty, a breach of the duty, and an injury proxim ately resulting therefrom.” Texler v. D.O. Summers Cleaners & Shirt Laundry Co. , 81 Ohio St.3d 677, 680, 693 N.E.2d 271 (1998). In premises liability cases, such as this o ne, the landowner’s duty depends upon the status of the injured party at the time of the incident. Madison v. Raceway Park, Inc. , 6th Dist. Lucas No. L-08-1279, 2009-Ohio-4068, ¶ 14, citing Lang v. Holly Hill Motel, Inc ., 122 Ohio St.3d 120, 2009-Ohio-2945, 909 N.E.2d 120, ¶ 10. Here, it is undisputed that Stewart was a business invitee of a ppellees at the time of the incident. In general, a landowner owes business invitees a dut y of ordinary care, which includes (1) a duty not to create a hazard on the premises, (2) a duty to warn of latent or concealed dangers, if the landowner had actual or constructive knowledge of those dangers, and (3) a duty to maintain the premises in a reasonabl y safe condition. Ray v. Wal-Mart Stores, Inc. , 2013-Ohio-2684, 993 N.E.2d 808, ¶ 18 (4th Dist.); Paschal v. Rite Aid Pharmacy, Inc. , 18 Ohio St.3d 203, 480 N.E.2d 474 (1985) (business owners hav e “a duty of ordinary care in maintaining the premises in a reasonab ly safe condition so that its customers are not unnecessarily and unreasonably exposed to danger.”) “While a business owner is not an insurer of a customer’s safety * * * a n owner, is ‘liable to an invitee for injuries caused by a latent defect when the owner k nows, or in the exercise of ordinary care should have known, about the hazard for a time su fficient to correct the8. defect.’” Beck v. Camden Place at Tuttle Crossing , 10th Dist. Franklin No. 02AP-1370, 2004-Ohio-2989, ¶ 20. “A premises owner or occupier will be ch arged with constructive notice of hazards * * * that would have been revealed by a reas onable inspection.” Ray at ¶ 18, citing Hansen v. Wal-Mart Stores, Inc. , 4th Dist. Ross No. 07CA2990, 2008- Ohio-2477, ¶ 11. {¶ 16} But, “[w]here a danger is open and obvious, a landowner owes no duty of care to individuals lawfully on the premises.” Armstrong v. Best Buy Co., Inc. , 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, paragraph one of the syllabus, citing Sidle v. Humphrey , 13 Ohio St.2d 45, 233 N.E.2d 589 (1968). “The rationale unde rlying this doctrine is ‘that the open and obvious nature of the hazard its elf 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 pr otect themselves.’” Id. at ¶ 5, citing Simmers v. Bentley Constr. Co. , 64 Ohio St.3d 642, 644, 597 N.E.2d 504 (1992). When courts apply the open and obvious doctrine, “they must focus on the fact that the doctrine relates to the threshold issue of duty. By f ocusing on the duty prong of negligence, the rule properly considers the nature of the dange rous condition itself, as opposed to the nature of the plaintiff's conduct in encounterin g it.” Armstrong at ¶ 13. {¶ 17} Turning to the trial court’s analysis in this case, the trial c ourt noted in its judgment entry that if Stewart was correct that appellees had a ctual or constructive notice of a latent defect on its property given the “visible” nature o f the “disrepair of the sidewalk at issue”—i.e., “the sidewalk was crumbling, overgrown with plant life, and9. eroding”—then “[Stewart] should have also seen these obvious co nditions and avoided them. The theater is not liable to its patrons for such open and obvious defects, and it is

also not liable for conditions it did not know about and could not know about without taking unreasonably excessive investigative maintenance measure s.” (Emphasis added.) Stewart argues that the trial court’s analysis was flawed becau se it failed to recognize that “[w]hile a business owner should be expected to be on notice of the danger and appreciate it and be aware of the general conditions [of the pr operty], a business invitee is only to discover the ‘obvious’ dangers.” {¶ 18} In essence, Stewart is arguing that the trial court’s analysis improperly assumes that where the condition of a property provides constru ctive notice to the landowner of the existence of a latent defect, then that defect was necessarily open and obvious to business invitees. While we agree with the general proposition that a defective condition is not “open and obvious” just because it c ould have been discovered by the landowner through reasonable inspection and maintenance of the property— indeed, if that were true, a landowner could never be held liab le under a theory of constructive notice—we disagree that the trial court’s analysis assumed otherwise. That is, the trial court did not improperly assume, as Stewart argue s, that a business invitee and a landowner have an equal duty to inspect the premises for late nt defects. Rather, the trial court concluded that the dangerous condition of the sidew alk was, in fact, an “open and obvious defect” because “the sidewalk was crumbling, overgr own with plant life, and eroding.” The trial court’s ruling with respect to “open and o bvious” was based upon10. “the nature of the dangerous condition itself.” Armstrong at ¶ 13. An “open and obvious” defect—by its very nature—is not, and cannot be, a “la tent” defect. {¶ 19} Moreover, we interpret the trial court’s statement that appelle es are “not liable for conditions [they] did not know about and could not k now about without taking unreasonably excessive investigative maintenance measures” as a n alternative basis for granting summary judgment. That is, the trial court essentiall y ruled that, even if it had not already determined that the open-and-obvious doctrine negat ed appellees’ duty of ordinary care, there was no evidence that appellees breached th eir duty to maintain the premises in a reasonably safe condition. Although it would hav e been clearer if the trial court had framed its conclusion in this manner, we believe that the judgment entry—read as a whole—reflects that the trial court employed the proper an alysis. {¶ 20} Stewart’s first assignment of error is, therefore, not well-tak en. 2. Appellees had no duty to warn Stewart of an open and obviou s danger.

{¶ 21} Stewart’s second assignment of error argues that the trial cour t erred in finding the defective condition of the sidewalk was open and ob vious. Stewart maintains that the sidewalk’s inability to support her weight was a laten t defect, rather than an open and obvious danger. {¶ 22} We have previously held that “[t]he issue of whether a risk was open and obvious may be decided by the court as a matter of law when onl y one conclusion can be

drawn from the established facts.” Semprich v. Cty. of Erie , 6th Dist. Erie No. E-12-070,11. 2013-Ohio-3561, ¶ 12. On the other hand, “where reasonable min ds could reach different conclusions as to the obviousness of the risk, the issue should be resolved by a jury.” Id. {¶ 23} When deciding this issue, courts must consider whether the risk itself was observable. Id. That is, “[t]he question of whether a danger is open and obvio us is an objective one.” Hallier v. Hopkins , 6th Dist. Sandusky No. S-15-024, 2016-Ohio-2661, ¶ 5, citing Goode v. Mt. Gillion Baptist Church , 8th Dist. Cuyahoga No. 87876, 2006- Ohio-6936, ¶ 25. “The fact a plaintiff was unaware of the dang er is not dispositive of the

issue.” Id. Instead, courts must consider “whether in light of the specif ic facts and circumstances of the case, an objective, reasonable person woul d deem the danger open

and obvious.” Id. , citing Stanfield v. Amvets Post No. 88 , 2d Dist. Miami No. 06CA35, 2007-Ohio-1896, ¶ 12. “Even when an invitee does not actually s ee the object or danger until after he or she falls, no duty exists when the invitee co uld have seen the object or danger if he or she had looked.” Semprich at ¶12. {¶ 24} Moreover, “darkness due to lack of illumination at nighttime is not an attendant circumstance that creates an exception to the open an d obvious doctrine[.]”

Butler v. Cleveland Clinic , 8th Dist. Cuyahoga No. 105457, 2018-Ohio-93, ¶ 17; accord Hunter v. Jamin Bingo Hall , 6th Dist. Lucas No. L-08-1084, 2008-Ohio-4485, ¶ 13 (“darkness is a naturally occurring event and not an attendant circumstance”). An “attendant circumstance” is “any distraction that would come to the attention of an invitee in the same circumstances and reduce the degree of care an ordinary person would

exercise at the time.” Hunter at ¶ 12. In contrast, “darkness increases rather than12. reduces the degree of care an ordinary person would exercise.” McCoy v. Kroger

Co. , 10th Dist. Franklin No. 05AP-7, 2005-Ohio-6965, ¶ 16 (emphasi s added). For this reason, Ohio courts consistently recognize that “[d]arkness is always a warning of danger, and for one’s own protection it may not be disregarded. ” Jeswald v. Hutt , 15 Ohio St.2d 224, 239 N.E.2d 37 (1968), paragraph three of the sy llabus. {¶ 25} Accordingly, although Stewart testified that she could not obse rve the sidewalk when she stepped on it—“because it was dark,” the park ing lot was poorly lit, and she did not have any car lights to help her navigate—the ni ghttime darkness of the parking lot is largely irrelevant for our analysis. The releva nt issue is whether the dangerous condition of the sidewalk was otherwise “open and obv ious” at the time of

Stewart’s fall. {¶ 26} At her July 17, 2017 deposition, Stewart testified regarding th e condition of the sidewalk that she encountered on appellees’ premises and th e circumstances under

which she fell. She stated: Well, I stepped on the edge of [the curb] and it crumbled. I d idn’t know I was going to step on the edge of it, you know, because I couldn ’t see where it was so it made me – like it broke away under my foot. I ste pped – I was walking and I kept it the same level and it pulled me forward w hen I stepped on it, it crumbled under my foot and pulled me forward. During that same deposition, Stewart identified exhibits A and B as photographs taken three days after the incident. She testified that exhibit B sh ows the curb that “crumbled”13. under her weight, and she circled where her fall occurred. Ste wart testified that exhibit A, on the other hand, depicted “the continuation of the crumbled walkway” but

did not show the area where she fell. Exhibits A and B are the refore photographs of the same, crumbling curb, but only exhibit B shows the area where s he fell. {¶ 27} Stewart elaborated on the condition of the curb in her affidavi t attached to her opposition to appellees’ motion for summary judgment. Ther e she describes the curb seen in exhibit B as “eroding and crumbling.” {¶ 28} Stewart argues, however, that these photos were after her fall, and there is no evidence that conclusively establishes the condition of the curb before her fall. But, even if we assume that the precise area where Stewart stepped d id not appear to be crumbling before the accident, the evidence establishes that sh e encountered a visibly “eroding and crumbling” curb. 2 Despite the open and obvious nature of the crumbling sidewalk, Stewart nonetheless stepped on the edge of it—and it crumbled under her foot, which is not surprising given the overall condition of the curb as depicted in the photographs. Stewart could have easily avoided this hazard by stepping over the visibly crumbling edge of the curb. She did not. Although she testifi ed that she “didn’t know [she] was going to step on the edge of it”—because it was dark and she could not see

2 We note Stewart’s argument in her reply brief that “she has be en quite clear that the exact part of the sidewalk she stepped on crumbled under her fo ot, not that it was crumbled already.” Our review of her testimony and affidavit, however, does not comport with this statement.14. where she was stepping—as discussed, darkness “is not an attend ant circumstance that creates an exception to the open and obvious doctrine[.]” Butler at ¶ 17. {¶ 29} We therefore conclude that, as a matter of law, only one conclu sion can be drawn from the established facts: the dangerous condition of t he crumbling sidewalk was an open and obvious hazard, which negates the appellees’ duty o f care. {¶ 30} We reached a similar conclusion in Madison v. Raceway Park, Inc. , 6th Dist. Lucas No. L-08-1279, 2009-Ohio-4068. There, the plaintif f, a business invitee of the defendant, was returning to her vehicle in defendant’s park ing lot. Her exit required her to traverse a gravel path. While it had not rained the day of the incident, rain from earlier in the week had left a puddle on the gravel pathway. T he plaintiff could not continue on the path without getting her shoes wet so she chose to exit the gravel path and walk alongside it past the puddle. When she went to return to the path which appeared dry after passing the puddle, both of her feet began t o sink, causing her to fall with resulting injuries. The defendant, requesting summary jud gment, argued the recent rain and water on the ground would put a reasonable person on n otice of an open and obvious danger that the ground could be soft. In opposition, t he plaintiff argued that because the mud was concealed by the gravel over the path, it w as not open and obvious but represented a latent defect. The trial court granted summa ry judgment in the defendant’s favor finding the condition causing plaintiff’s fal l was open and obvious. {¶ 31} On appeal, we affirmed the trial court’s decision. We held tha t while the danger was indeed the mud concealed by the gravel path, the sur rounding facts and15. circumstances—including the recent rain and general puddling of water along the gravel path— “gave sufficient warning to a reasonable person that the area might be muddy and

it could cause someone to fall.” Raceway Park at ¶ 23. We therefore concluded that the danger was open and obvious. {¶ 32} Here, similar to our conclusion in Raceway Park, we find the hazardous condition of the sidewalk was open and obvious. The crumbling and decayed condition of the curb, as shown in photographs Stewart provided, would ha ve put a reasonable person on notice that the edge of the curb may crumble if stepp ed on. Even if we assume that Stewart stepped on a portion of the curb that had not yet crumbled, the crumbling condition of the surrounding curb was sufficient to put a reaso nable person on notice that any portion of that curb might crumble if stepped upon and caus e a fall. {¶ 33} We therefore find that the hazardous condition of the sidewalk was open and obvious, and appellees owed no duty to Stewart as a matter of law. Stewart’s second assignment of error is found not well-taken. {¶ 34} Finally, given that we have concluded that appellees owed no du ty to Stewart as a matter of law, her third and fourth assignments of error—which argue that appellees breached their duty to maintain the property in a rea sonable condition—are moot, and we decline to address them.16. III. Conclusion {¶ 35} We find that, as a matter of law, the hazard Stewart encountere d was open and obvious, and appellees therefore owed no duty to Stewart. Stewart’s first and second assignments of error are not well-taken, and her third and four th assignments of error are

moot. {¶ 36} The judgment of the Lucas County Court of Common Pleas is affir med. Appellant is ordered to pay the costs of this appeal under App. R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Arlene Singer, J. _________________

______________ JUDGE Thomas J. Osowik, J.

_______________________________ Christine E. Mayle, P.J. JUDGE CONCUR.

_______________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.