[Cite as Flores v. Bowling Green State Univ., 2013-Ohio-4864.]

Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us

LISA K. FLORES, et al. 

 Plaintiffs 

 v. 

BOWLING GREEN STATE UNIVERSITY 

 Defendant 

Case No. 2012-07153 

Judge Patrick M. McGrath 

Magistrate Robert Van Schoyck 

ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

{¶ 1} On April 1, 2013, defendant filed a motion for summary judgment pursuant 

to Civ.R. 56(B). On April 23, 2013, plaintiffs filed a response. The motion is now before 

the court for a non-oral hearing pursuant to L.C.C.R. 4(D). 

{¶ 2} Civ.R. 56(C) states, in part, as follows: 

{¶ 3} “Summary judgment shall be rendered forthwith if the pleadings, 

depositions, answers to interrogatories, written admissions, affidavits, transcripts of 

evidence, and written stipulations of fact, if any, timely filed in the action, show that 

there is no genuine issue as to any material fact and that the moving party is entitled to 

judgment as a matter of law. No evidence or stipulation may be considered except as 

stated in this rule. A summary judgment shall not be rendered unless it appears from 

the evidence or stipulation, and only from the evidence or stipulation, that reasonable 

minds can come to but one conclusion and that conclusion is adverse to the party 

against whom the motion for summary judgment is made, that party being entitled to 

have the evidence or stipulation construed most strongly in the party’s favor.” See also 
Case No. 2012-07153 - 2 - ENTRY

Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean 

United, Inc., 50 Ohio St.2d 317 (1977). 

{¶ 4} Plaintiff, Lisa K. Flores (hereinafter “plaintiff”), alleges that on June 14, 

2011, she tripped and fell on an uneven section of a sidewalk on defendant’s premises 

and consequently sustained injuries. Plaintiff asserts a claim of negligence based upon 

defendant’s alleged failure to properly maintain the sidewalk. Defendant argues that the 

alleged defect was an open and obvious condition for which it owed no duty of care to 

plaintiff. 

{¶ 5} In order for plaintiff to prevail upon her claim of negligence, she must prove 

by a preponderance of the evidence that defendant owed her a duty, that defendant’s 

acts or omissions resulted in a breach of that duty, and that the breach proximately 

caused her to sustain injury. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-

Ohio-2573, ¶ 8, citing Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77 

(1984). 

{¶ 6} “Under Ohio law, ‘[t]he open-and-obvious doctrine provides that premises 

owners do not owe a duty to persons entering those premises regarding dangers that 

are open and obvious.” Pesci v. William Miller & Assoc., LLC, 10th Dist. No. 10AP-800, 

2011-Ohio-6290, ¶ 13, quoting Hill v. W. Res. Catering, Ltd., 8th Dist. No. 93930, 2010-

Ohio-2896, ¶ 9. “Open-and-obvious hazards are those hazards that are neither hidden 

nor concealed from view and are discoverable by ordinary inspection. * * * ‘[T]he 

dangerous condition at issue does not actually have to be observed by the plaintiff in 

order for it to be an “open and obvious” condition under the law. Rather, the 

determinative issue is whether the condition is observable.’” McConnell v. Margello, 

10th Dist. No. 06AP-1235, 2007-Ohio-4860, ¶ 10, quoting Lydic v. Lowe’s Cos., Inc., 

10th Dist. No. 01AP-1432, 2002-Ohio-5001, ¶ 10. “Certain clearly ascertainable 

hazards or defects may be deemed open and obvious as a matter of law for purposes of 

granting summary judgment.” McConnell at ¶ 11. 
Case No. 2012-07153 - 3 - ENTRY

{¶ 7} “An exception to the open and obvious doctrine applies when there are 

‘attendant circumstances’ surrounding the event that distract the invitee and reduce the 

degree of care an ordinary person would otherwise exercise. * * * An attendant 

circumstance is any significant distraction that would divert the attention of a reasonable 

person in the same situation and thereby reduce the amount of care an ordinary person 

would exercise to avoid an otherwise open and obvious hazard. * * * In short, attendant 

circumstances are facts that significantly enhance the danger of the hazard. * * * 

Furthermore, the attendant circumstance must be ‘an unusual circumstance of the 

property owner’s making.’” Haller v. Meijer, Inc., 10th Dist. No. 11AP-290, 2012-Ohio670, ¶ 10, quoting McConnell at ¶ 17. 

{¶ 8} According to the transcript of plaintiff’s deposition, which defendant filed in 

support of its motion, plaintiff testified that the accident occurred as she was walking 

from her home to a Taco Bell restaurant, headed southbound on a sidewalk that runs 

parallel along the east side of Enterprise Street in the city of Bowling Green, Ohio. 

Immediately east of the relevant section of sidewalk, there was a chain-link fence. 

Plaintiff testified that the accident occurred between 7:30 p.m. and 8:15 p.m. on June 

14, 2011, and that it was “[m]aybe a little bit later than dusk” but “it wasn’t completely 

dark[.]” (Deposition, p. 19.) 

{¶ 9} According to photographs that plaintiff authenticated in her deposition, she 

tripped at a point in the sidewalk where two sections of concrete meet, and a corner of 

one section was missing. In both her deposition and an affidavit that she submitted, she 

states that the difference in elevation at that corner was five and a half inches. When 

asked during her deposition if this defect would have been observable to a southbound 

pedestrian, plaintiff replied: “In the daylight, yes.” (Deposition, p. 8.) Indeed, plaintiff 

testified that when she traversed the sidewalk on prior occasions, she observed the 

defect and walked closer to the fence in that area specifically to avoid it. (Deposition, p. 

32.) “When a party notices a * * * defect in a walkway while previously traversing the 

area, the defect is open and obvious.” Cooper v. Meijer Stores Ltd. Partnership, 10th 
Case No. 2012-07153 - 4 - ENTRY

Dist. No. 07AP-201, 2007-Ohio-6086, ¶ 20, citing Haynes v. Mussawir, 10th Dist. Nos. 

04AP-110 & 04AP-117, 2005-Ohio-2428, ¶ 23-24. 

{¶ 10} Although plaintiff contends that darkness was an “attendant circumstance” 

that prevented her from observing the alleged defect on the date in question, 

“‘[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 (1968), paragraph three of the 

syllabus. Whereas attendant circumstances “reduce the degree of care an ordinary 

person would otherwise exercise” (Haller at ¶ 10), “darkness increases rather than 

reduces the degree of care an ordinary person would exercise.” McCoy v. Kroger Co., 

10th Dist. No. 05AP-7, 2005-Ohio-6965, ¶ 16. “Regarding the issue of darkness, at 

least one Ohio state appellate court has determined that ‘the fact that it was dark is not 

an attendant circumstance to extend liability.’” Haynes at ¶ 22, quoting Huey v. Neal, 

152 Ohio App.3d 146, 2003-Ohio-391, ¶ 12 (3rd Dist.). Further, plaintiff has identified 

nothing else that she claims to have distracted her or caused her fall. 

{¶ 11} Based upon the arguments and evidence presented by the parties, 

reasonable minds can come to but one conclusion, that the defect was an open and 

obvious condition, and that defendant therefore owed no duty to plaintiff. 

{¶ 12} Given that plaintiff cannot prevail on her claim of negligence, the derivative 

claim for loss of consortium asserted by plaintiff, Joseph Flores, Jr., must fail as well. 

Bowen v. Kil-Kare, Inc., 63 Ohio St.3d 84, 93 (1992). 

{¶ 13} For the foregoing reasons, the court concludes that there are no genuine 

issues of material fact and that defendant is entitled to judgment as a matter of law. 

Accordingly, defendant’s motion for summary judgment is GRANTED and judgment is 

rendered in favor of defendant. All previously scheduled events are VACATED. Court 

costs are assessed against plaintiffs. The clerk shall serve upon all parties notice of this 

judgment and its date of entry upon the journal. 
Case No. 2012-07153 - 5 - ENTRY

 _____________________________________ 

 PATRICK M. MCGRATH 

 Judge 

cc: 

 

Bruce B. Stevens 

121 East Court Street 

Bowling Green, Ohio 43402-2044 

Kristin S. Boggs 

Assistant Attorney General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Robert E. Searfoss III 

321 North Main Street 

Bowling Green, Ohio 43402 

001 

Filed May 28, 2013 

To S.C. Reporter October 31, 2013