[Cite as Lattimore v. K & A Market, Inc., 2016-Ohio-5295.] 

 

 

Civil Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Affirmed 

Date of Judgment Entry on Appeal: August 10, 2016 

Anthony J. Iaciofano and R. David Weber, for Plaintiff-Appellant Andrea Lattimore, 

James R. Hartke, for Defendant-Appellee K & A Market, Inc., 

Jeffrey A. Stepner, for Defendant-Appellee Carrie L. Moller Trust. 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

ANDREA LATTIMORE, 

 Plaintiff-Appellant, 

 vs. 

K & A MARKET, INC., 

and 

CARRIE L. MOLLER TRUST, 

 Defendants-Appellees, 

and 

MOLINA HEALTHCARE OF OHIO, 

Defendant. 

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APPEAL NO. C-150753 

 TRIAL NO. A-1500383 

O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS

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DEWINE, Judge. 

{¶1} This is an appeal in a slip and fall case. A customer tripped on the edge 

of a handicap ramp while shopping at a convenience store. The trial court granted 

summary judgments in favor of the convenience store and the property owner. We 

affirm. The defendants owed no duty to the customer because the rise in the floor on 

which she fell was open and obvious. Further, the doctrine of negligence per se does not 

apply to create a duty because the customer has failed to show the violation of a 

legislative enactment. 

I. Background 

{¶2} Andrea Lattimore fell while shopping at K & A Market. As she tells it, 

she entered the store and immediately spotted a display of snacks from which she 

sought to make a purchase. She took two steps into the store and turned to her left to 

reach the snack rack. When she did so, she tripped on a rise at the edge of a handicap 

ramp. 

{¶3} Apparently, there had once been a handrail on the ramp. The market 

had removed the handrail—with the property owner’s permission—soon after it had 

taken over occupancy of the building. Ms. Lattimore testified that she had been in the 

building on numerous occasions before the handrail was removed. Following Ms. 

Lattimore’s accident, a city of Cincinnati building inspector issued the property owner a 

notice of violation of a Cincinnati Municipal Code section requiring that railings be 

maintained in good repair. 

{¶4} Ms. Lattimore filed a complaint for negligence and negligence per se 

against K & A Market, Inc., and the owner and lessor of the property, the Carrie L. 

Moller Trust. Both moved for and were granted summary judgment. The trial court 
OHIO FIRST DISTRICT COURT OF APPEALS

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concluded that the hazard was open and obvious and that the Cincinnati Municipal Code 

provision alleged to have been violated was not sufficiently specific to allow for the 

application of negligence per se. Ms. Lattimore now appeals, challenging both 

conclusions in a single assignment of error. 

II. The Rise Was Open and Obvious 

{¶5} The owner or occupier of property owes no duty to warn a person 

entering the premises of an open and obvious danger. Armstrong v. Best Buy Co., 

99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, syllabus. “The rationale 

underlying 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.’ ” Id. at ¶ 5, quoting Simmers v. Bentley Constr. 

Co., 64 Ohio St.3d 642, 644, 597 N.E.2d 504 (1992). “A danger is open and obvious if 

it is not ‘hidden, concealed from view, or undiscoverable upon ordinary inspection.’ ” 

Esterman v. Speedway, LLC, 1st Dist. Hamilton No. C-140287, 2015-Ohio-659, ¶ 7, 

quoting Thompson v. Ohio State Univ. Physicians, Inc., 10th Dist. Franklin No. 

10AP-612, 2011-Ohio-2270, ¶ 12. 

{¶6} We agree with the 

trial court that the rise in the floor 

was open and obvious. This is a 

case where a picture is truly worth 

a thousand words. As 

demonstrated by the photograph 

to the right, the ramp was visible 

and distinct from the raised floor. The ramp had a different type of floor covering, 
OHIO FIRST DISTRICT COURT OF APPEALS

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and the drop was marked with orange tape. In addition, a warning sign on the door 

alerted customers to the uneven rise. 

{¶7} Ms. Lattimore argues that “attendant circumstances” militate against 

a finding that the hazard was open and obvious. See Martin v. Christ Hosp., 1st Dist. 

Hamilton No. C-060639, 2007-Ohio- 2795, ¶ 19. In determining whether a danger is 

open and obvious, a court may consider attendant circumstances that would reduce 

the attention of a patron in the same circumstances and increase the risk of a fall. 

McGuire v. Sears, Roebuck & Co., 118 Ohio App.3d 494, 499, 693 N.E.2d 807 (1st 

Dist.1996). Ms. Lattimore says she was “barely in the front door” when she became 

so distracted by a bright display of potato chips and other snacks that she was 

oblivious to the rise on the floor. But “attendant circumstances do not include a 

person’s activity at the time of a fall unless the person’s attention was diverted by ‘an 

unusual circumstance of the property owner’s own making.’ ” Esterman at ¶ 11, 

quoting McConnell v. Margello, 10th Dist. Franklin No. 06AP-1235, 2007-Ohio4860, ¶ 17. A potato chip display in a convenience store is hardly “an usual 

circumstance.” Even considering the chips, we have little difficulty concluding the 

danger confronting Ms. Lattimore was open and obvious. 

III. Negligence Per Se Analysis Is Not Warranted Here 

{¶8} Ms. Lattimore also maintains that the trial court erred in failing to 

apply the doctrine of negligence per se to find that the defendants owed her a duty of 

care. 

{¶9} Even if a hazard is open and obvious, a landowner or occupier may 

still owe a duty to one who comes on the property as the result of a specific legislative 

enactment. Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, 

909 N.E.2d 120, ¶ 13. Thus, while “the open-and-obvious doctrine can excuse a 
OHIO FIRST DISTRICT COURT OF APPEALS

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defendant's breach of a common-law duty of care, it does not override statutory 

duties.” Id. at ¶ 14. Violation of such a statutory duty is negligence per se. Id. This 

doctrine allows the plaintiff to establish “the first two prongs of the negligence test, 

duty and breach of duty, by merely showing that the defendant committed or omitted 

a specific act prohibited or required by statute.” Id. at ¶ 15. In order for negligence 

per se to apply, however, the legislative enactment must “set[] forth a positive and 

definite standard of care.” Mann v. Northgate Investors, L.L.C., 138 Ohio St.3d 175, 

2014-Ohio-455, 5 N.E.3d 594, ¶ 29. 

{¶10} Ms. Lattimore argues that negligence per se should be applied in this 

case based upon the purported violation of Cincinnati Municipal Code 1119-03.4. That 

section requires that all “stairs, stair landings and railings shall be maintained in 

sound condition and good repair.” 

{¶11} Defendants counter that negligence per se is not applicable here because 

the requirement alleged to have been violated was a building code requirement. They 

rely upon Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d 120, 

where the Ohio Supreme Court found that negligence per se could not be premised on a 

violation of the Ohio Building Code. There, the court relied upon the fact that the Ohio 

Building Code was not a legislative enactment, but rather was created by administrative 

agency employees who implement the legislature’s policy directives. Id. at ¶ 18. The 

provision in this case, although comparable in substance to the provision at issue in 

Holly Hill, was part of the Cincinnati Municipal Code, enacted by Cincinnati City 

Council. The Second Appellate District has concluded that because such municipal code 

provisions are legislative enactments rather than administrative regulations, building 

code requirements therein could be the basis for a finding of negligence per se. See 

Gibbs v. Speedway LLC, 2014-Ohio-3055, 15 N.E.3d 444, ¶ 39 (2d Dist.). 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶12} Assuming that a violation of the Cincinnati Municipal Code provision 

could constitute negligence per se, we still do not find that there is any basis for 

application of the principle on the facts before us. Here, the duty imposed by Cincinnati 

Municipal Code 1119-03.4 was that railings be maintained in sound condition and good 

repair. As we read the provision it does not mandate the existence of a railing, only that 

if one exists that it be properly maintained. Nor does Ms. Lattimore point to any other 

code section that requires the existence of a railing. Thus, there is no basis to apply 

negligence per se. 

IV. Conclusion 

{¶13} The defendants owed no duty of care to Ms. Lattimore because the 

danger was open and obvious and because they were not negligent per se. The 

assignment of error is overruled. The judgment of the trial court is affirmed. 

Judgment affirmed. 

CUNNINGHAM, P.J., and MOCK, J., concur. 

Please note: 

The court has recorded its own entry on the date of the release of this opinion.