[Cite as Lowe v. Local Union No. 14 U.A.W., 2020-Ohio-703.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

 LUCAS COUNTY 

Patricia Lowe, et al. Court of Appeals No. L-19-1042 

 

 Appellants Trial Court No. CI201703709 

v. 

Local Union No. 14 U.A.W., et al. DECISION AND JUDGMENT

Appellees Decided: February 28, 2020 

* * * * * 

 Pamela A. Borgess, for appellants. 

 Robert J. Bahret and Andrew J. Ayers, for appellee Local Union 

 No. 14 UAW. 

 Julia R. Bates, Lucas County Prosecuting Attorney, Kevin A. Pituch 

 and Elaine B. Szuch, Assistant Prosecuting Attorneys, for appellee. 

* * * * * 

 ZMUDA, P.J. 

I. Introduction 

{¶ 1} In this appeal, appellants, Patricia and Gene Lowe, appeal the judgment of 

the Lucas County Court of Common Pleas, granting summary judgment in this premises 

liability action in favor of appellees, Local Union No. 14 U.A.W. (the “union”) and 
2.

Lucas County Board of Elections (the “BOE”). Because we find that the trial court 

properly concluded that appellants’ claim was precluded under the open-and-obvious 

doctrine, we affirm. 

A. Facts and Procedural Background 

{¶ 2} On August 11, 2017, appellants filed a complaint with the trial court, in 

which they alleged that Patricia sustained two fractured wrists that required surgical 

repair and rehabilitative therapy as a result of a fall that occurred as she was entering her 

polling place on November 3, 2015. According to the complaint, the fall occurred at the 

union’s hall, located at 5413 Jackman Road, Toledo, Lucas County, Ohio, which was 

utilized as a polling place by the BOE under a contract with the union. 

{¶ 3} Regarding the cause of Patricia’s fall, appellants alleged: 

As [Patricia] was entering and before she could even realize, the top 

of her shoe got caught underneath the entry floor mat that had been placed 

over the top/edge of the inclining ramp located immediately upon entry 

behind the entry doors, causing her to fall. 

{¶ 4} In their complaint, appellants asserted a claim for negligence based upon the 

allegation that appellees failed to maintain the premises in a reasonably safe condition 

and breached their duty to Patricia as a business invitee. Appellants alleged that the 

hazardous placement of the floor mat behind a closed entry door was not discernible by 

Patricia in her exercise of ordinary care. Moreover, appellants claimed that appellees’ 

placement of the mat was either negligent or willful, wanton, and reckless. 
3.

{¶ 5} On August 24, 2017, the union filed its answer to appellants’ complaint, in 

which it denied any liability with respect to Patricia’s fall. Likewise, the BOE denied any 

wrongdoing in its answer, which was filed on September 7, 2017. In its answer, the BOE 

asserted several affirmative defenses, including sovereign and statutory immunity. 

{¶ 6} The matter proceeded through pretrial discovery, during which deposition 

testimony was elicited from several witnesses, including appellants. The depositions 

were filed with the trial court and are part of the record on appeal. 

{¶ 7} On July 13, 2018, the BOE filed a motion for summary judgment, in which 

it argued that it was statutorily immune from suit as to appellants’ negligence claims. 

Alternatively, the BOE asserted that it was not negligent, and any dangerous condition 

that existed in this case was open and obvious. 

{¶ 8} One week later, on July 20, 2018, the union filed its motion for summary 

judgment, in which it contended that it owed Patricia a duty merely to refrain from 

willfully or wantonly causing her injury because she was a licensee, not a business 

invitee. Claiming that the record contained no evidence of such willful or wanton 

conduct, the union insisted that it was entitled to summary judgment. The union went on 

to argue that it was entitled to summary judgment even if Patricia was considered a 

business invitee. The union insisted that it had no duty to warn Patricia of any danger 

associated with the floor mat that appellants alleged was the cause of Patricia’s fall, as the 

mat was an open and obvious condition. 
4.

{¶ 9} On July 25, 2018, appellants filed their motion for partial summary 

judgment, in which they argued that Patricia was a business invitee to whom appellees 

owed a duty of care, the incline of the entryway and the placement of the floor mat did 

not conform to certain building codes and laws regulating polling places, and the 

nonconforming floor mat and incline were the cause of Patricia’s fall. As such, 

appellants asserted that they were entitled to summary judgment on the issues of liability 

and causation, leaving only the issue of damages remaining. 

{¶ 10} On February 21, 2019, the trial court issued its decision on the parties’ 

competing motions for summary judgment. In its decision, the trial court found, among 

other things, that the floor mat on which Patricia allegedly tripped was an open and 

obvious condition. Based upon that finding, the trial court concluded that appellees had 

no duty to alert Patricia to the floor mat, and thus appellants’ premises liability claims 

were not sustainable. Consequently, the trial court granted appellees’ motions for 

summary judgment, and denied appellants’ motion for partial summary judgment. 

Thereafter, appellants filed their timely notice of appeal. 

B. Assignments of Error 

{¶ 11} On appeal, appellants present the following assignments of error for our 

review: 

I. The trial court erred in granting summary judgment to 

defendants/appellees where, at a minimum, questions of material fact exist 
5.

as to causation & whether the hazardous & non-compliant polling place 

entry was open & obvious to voter Lowe. 

II. The trial court erred in denying appellants’ motion for partial 

summary judgment on liability and causation. 

{¶ 12} Because appellants’ assignments of error are interrelated, we will address 

them simultaneously. 

II. Analysis 

{¶ 13} In their assignments of error, appellants argue that the trial court erred in 

granting summary judgment in favor of appellees on their premises liability claim. 

{¶ 14} A motion for summary judgment is reviewed de novo by an appellate court. 

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Under the 

de novo standard, we undertake our own independent examination of the record and 

make our own decision as to whether the moving party is entitled to summary judgment. 

Dupler v. Mansfield Journal, 64 Ohio St.2d 116, 119-120, 413 N.E.2d 1187 (1980). 

{¶ 15} Summary judgment is appropriate when (1) no genuine issue as to any 

material fact exists, (2) the party moving for summary judgment is entitled to judgment 

as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving 

party, reasonable minds can reach only one conclusion, and that is adverse to the 

nonmoving party. Civ.R. 56; Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 

66, 375 N.E.2d 46 (1978). 
6.

{¶ 16} Premises liability is a form of negligence, which generally requires the 

plaintiff to demonstrate that the defendant owes a duty to him or her the breach of which 

proximately resulted in the plaintiff’s injury. Mussivand v. David, 45 Ohio St.3d 314, 

318, 544 N.E.2d 265 (1989). The duty that an owner or occupier of premises owes to one 

who is injured on those premises is governed by the relationship between the parties. 

Light v. Ohio University, 28 Ohio St.3d 66, 67, 502 N.E.2d 611 (1986). “That 

relationship will fall into one of three categories: invitee, licensee, or trespasser.” Turner 

v. Cathedral Ministries, 2015-Ohio-633, 27 N.E.3d 586, ¶ 10 (6th Dist.), citing Mostyn v. 

CKE Restaurants, Inc., 6th Dist. Williams No. WM-08-018, 2009-Ohio-2934, ¶ 13. 

{¶ 17} A business invitee is a person who comes onto premises by invitation, 

express or implied, for purposes beneficial to the owner or occupier. Light at 68. 

“Conversely, a person who enters the premises of another by permission or acquiescence, 

for his own pleasure or benefit, and not by invitation, is a licensee.” Id. 

{¶ 18} In the proceedings below, the trial court did not resolve whether Patricia 

was a business invitee or a licensee. Rather, the trial court rendered its decision based on 

its analysis of the open-and-obvious doctrine. Here, the parties disagree as to whether 

Patricia was a business invitee or a licensee at the time of her fall. Appellants argue that 

Patricia was a business invitee because the union received monetary compensation from 

the BOE for its use of the union hall as a polling place. In response, appellees insist that 

the compensation paid to the union was insufficient to cover the union’s costs of 

operation. As such, appellees contend that Patricia’s use of the union’s hall was not 
7.

beneficial to the union and therefore Patricia was a licensee. In light of our determination 

below that appellants’ premises liability claims were properly dismissed under the openand-obvious doctrine, which applies regardless of the status of the entrant, we need not 

resolve the issue of whether Patricia was a business invitee or a licensee. 

{¶ 19} Here, the trial court found that appellees owed no duty to Patricia with 

respect to the entryway incline or the floor mat, because such conditions were open and 

obvious. The open-and-obvious doctrine provides that owners do not owe a duty to 

persons entering their premises regarding dangers that are open and obvious. Armstrong 

v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 14, citing 

Sidle at paragraph one of the 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.” Simmers v. Bentley 

Constr. Co., 64 Ohio St.3d 642, 644, 597 N.E.2d 504 (1992). 

{¶ 20} In their brief to this court, appellants argue that the open-and-obvious 

doctrine does not apply in this case because “the impermissible incline was not ramped, 

marked, painted, highlighted or signaled in any fashion.” Further, appellants contend that 

no warnings were provided as to the incline, and the design of the parking lot resulted in 

entrants proceeding to the entryway at an “oblique angle” without a direct line of sight to 

the doors. In addition, appellants argue that the slope of the floor was not open and 
8.

obvious because it was concealed by the floor mat on which Patricia tripped as she 

entered. 

{¶ 21} In response, appellees rely upon Patricia’s deposition testimony in support 

of their argument that appellants’ premises liability claims were not sustainable because 

the floor mat and the slope of the floor were open and obvious. We agree. 

{¶ 22} In her deposition, which was made a part of the trial record and relied upon 

by appellees to support their motion for summary judgment, Patricia testified that she had 

voted without incident at the union’s hall on four separate occasions, all of which 

involved her entering the hall using the same doorway at which she fell in November 

2015. Patricia indicated that she encountered no issues on these occasions, and 

acknowledged that she had not previously tripped or fallen at the entryway. 

{¶ 23} Later in her deposition, Patricia was asked about what caused her to trip, to 

which she responded, “[w]ell, my husband opened up the door and as I was walking in on 

my third step in I stepped on the threshold and as I picked up my right foot something 

heavy was on my foot and before I knew it I put my arms out and I fell.” Patricia was 

subsequently asked if it was the floor mat that caused her to fall. She responded in the 

affirmative, and went on to deny three separate times that the floor itself or the contour of 

the floor caused her fall. Notably, the following exchange took place thereafter: 

Q. And theoretically if you, if you were standing at the threshold or 

even just outside the door, had you looked there’s no reason you would 

have been unable to see that carpet or the fact that it was curled up? 
9.

A. Could you repeat it, please? 

Q. Sure. If you had stopped or slowed down before you go over the 

threshold, had you looked down you would have been able to see the carpet 

and the fact that it was curled up? 

A. Yes, I probably would have, yes. 

{¶ 24} In an errata sheet attached to her deposition,1

 Patricia sought to clarify the 

foregoing testimony on the issue of what caused her to fall by indicating that “it wasn’t 

the floor that got caught on the top of my shoe tripping me, but the mat was over an 

incline in the floor. If the mat wasn’t over the incline or if there wasn’t an incline, I don’t 

believe my foot would have got caught under the rug and I don’t believe I would have 

fallen.” 

{¶ 25} In addition to Patricia’s deposition testimony, the record contains a number 

of other deposition transcripts, as well as pictures of the entryway that is at issue in this 

case. In a deposition given by another eyewitness to the fall, Loretta Deal, Deal 

responded in the negative when she was asked whether the slope in the floor contributed 

to Patricia’s fall. Moreover, Gene testified in his deposition that he held the door open 

for Patricia as she attempted to make her way through the entryway. Thus, there is 

 

1

 Appellees filed motions to strike appellants’ errata sheet on the theory that it did not 

comply with Civ.R. 30(E). The trial court did not rule on appellees’ motion. Rather, the 

trial court noted its consideration of the material contained in the errata in its decision on 

the parties’ competing motions for summary judgment, but stated that the errata sheet did 

not alter the outcome of its analysis. Likewise, we find that the errata does not alter the 

outcome of this case, and we therefore need not pass upon its admissibility. 
10. 

nothing in the record to suggest that Patricia’s view of the entryway was obstructed in 

any way at the time of the fall. 

{¶ 26} The foregoing evidence, when taken together with the photographs of the 

entryway at issue here that are contained in the record, indisputably establishes the open 

and obvious nature of the incline in the floor, as well as the placement and condition of 

the floor mat. Patricia entered into the hall with nothing obstructing her view, and she 

acknowledges that she would have seen the allegedly hazardous entryway had she looked 

down. In such circumstances, we have held that no genuine issues of material fact exist 

that would preclude summary judgment in favor of the landowner under the open-andobvious doctrine. See Mostyn v. CKE Restaurants, Inc., 6th Dist. Williams No. 

WM-08-018, 2009-Ohio-2934, ¶ 21 (“Appellants, without any visual or lighting 

obstruction of any kind, traveled through a transparent glass entry area containing a floor 

mat of a color divergent from the tile beneath it. Even assuming arguendo that appellants 

were invitees, the record clearly demonstrates that the condition was open and obvious so 

as to negate any duty on the part of appellee.”); see also Armstrong, supra, 99 Ohio St.3d 

79, 2003-Ohio-2573, 788 N.E.2d 1088, at ¶ 16 (“Armstrong admitted in his deposition 

that when he entered the store, nothing was obstructing his view prior to his fall and that, 

had he been looking down, he would have seen the guardrail. Armstrong further stated 

that he had visited the store two or three times before his mishap. * * * [I]n viewing the 

photographs supplied by both parties, we find that as a matter of law, the rail in question 

was visible to all persons entering and exiting the store. Thus, the rail presented an 
11. 

open-and-obvious danger. As a result, since the hazard was open and obvious, Best Buy 

owed no duty to Armstrong. No genuine issue of material fact remains.”). 

{¶ 27} Nonetheless, appellants argue in the alternative that the open-and-obvious 

doctrine does not apply in this case because (1) the floor’s incline did not conform to 

safety requirements under the building code and the Ohio Revised Code, (2) the 

hazardous conditions that led to Patricia’s fall were caused by the active negligence of the 

union in placing the unsecured floor mat over the inclined portion of the floor, and 

(3) there are attendant circumstances that diverted Patricia’s attention away from the 

hazardous floor mat and sloped floor. We will address these arguments in turn. 

A. Negligence Per Se 

{¶ 28} “While the open-and-obvious doctrine excuses a breach of a defendant’s 

duty of care, it does not override statutory duties.” Asher v. Glenway Real Estate, LLC, 

2019-Ohio-4851, --- N.E.3d ----, ¶ 25 (1st Dist.), citing Lattimore v. K & A Mkt., Inc., 1st 

Dist. Hamilton No. C-150753, 2016-Ohio-5295, ¶ 9. In Lang v. Holly Hill Motel, Inc., 

122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d 120, the Supreme Court of Ohio stated 

the open-and-obvious doctrine does not shield a defendant from liability where the 

plaintiff has proven negligence per se based upon the violation of a statute. Id. at ¶ 15, 

citing Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, 857 N.E.2d 1195, ¶ 25, 

and Chambers v. St. Mary’s School, 82 Ohio St.3d 563, 567-568, 697 N.E.2d 198 (1998). 

{¶ 29} “The concept of negligence per se allows the plaintiff to prove the first two 

prongs of the negligence test, duty and breach of duty, by merely showing that the 
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defendant committed or omitted a specific act prohibited or required by statute; no other 

facts are relevant.” Id., citing Chambers at 565-566. For a violation of a statute to 

constitute negligence per se, the statute 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. Where a statute only sets forth a “general, abstract description of a 

duty,” a violation of that statute constitutes evidence of negligence, but does not rise to 

the level of negligence per se. Id. Moreover, “[t]he violation of an administrative rule 

does not constitute negligence per se.” Chambers at the syllabus. 

{¶ 30} In support of their contention that the sloped floor constituted negligence 

per se for which appellees should be held liable, appellants refer to R.C. 3501.29(B)(1)(a) 

and (c), the Voting Accessibility for the Elderly and Handicapped Act, 52 U.S.C. 20102 

and 20107, the Americans with Disabilities Act (“ADA”), the Ohio Basic Building Code, 

and regulations involving polling places promulgated by the Ohio Secretary of State. 

{¶ 31} R.C. 3501.29(B)(1) provides, in relevant part: 

(B)(1) Except as otherwise provided in this section, the board shall 

ensure all of the following: 

(a) That polling places are free of barriers that would impede ingress 

and egress of handicapped persons; 

* * * 
13. 

(c) That the entrances of polling places are level or are provided with 

a nonskid ramp that meets the requirements of the “Americans with 

Disabilities Act of 1990,” 104 Stat. 327, 42 U.S.C. 12101. 

{¶ 32} It is clear from a review of this statute that it is directed at ensuring polling 

place access for persons who are handicapped. “It is well-settled law in Ohio that for a 

violation of a statute to constitute negligence per se, the injured person must be a part of 

the class the statute was designed to protect.” Community Ins. Co. v. Hambden Twp., 

11th Dist. Lake No. 97-G-2092, 1998 WL 682385, *6 (Sept. 30, 1998), citing Marsh v. 

Koons, 78 Ohio St. 68, 84 N.E. 599 (1908), paragraph one of the syllabus; see also Lajoie 

v. Maumee River Yacht Club, 6th Dist. Lucas No. L-89-014, 1990 WL 7976, *2 (Feb. 2, 

1990). There is no evidence in the record to demonstrate that Patricia was handicapped at 

the time of her fall. Therefore, appellants are not entitled to rely upon the alleged 

violation of R.C. 3501.29(B)(1) to establish negligence per se in this case. 

{¶ 33} Under 52 U.S.C. 20102, polling places are required to be “accessible to 

handicapped and elderly voters.” An “elderly” person is defined as one who is 65 years 

of age or older,2

 and “accessible” means “accessible to handicapped and elderly 

individuals for the purpose of voting or registration, as determined under guidelines 

established by the chief election officer of the State involved.” 52 U.S.C. 20107. This 

 

2

 Patricia was 73 years old at the time of her fall. 
14. 

abstract, general accessibility requirement does not constitute a legislative enactment the 

violation of which constitutes negligence per se. Mann at ¶ 29. 

{¶ 34} Additionally, we have held that a “violation of the ADA is not negligence 

per se because it requires a determination of whether certain acts are reasonable under the 

specific circumstances of each case. Likewise, violations of the ADA guidelines, as 

incorporated by the [Ohio Administrative Code] and [Ohio Basic Building Code], are not 

evidence of negligence per se since they are administrative rules.” (Citations omitted.) 

Klostermeier v. In & Out Mart, 6th Dist. Lucas No. L-00-1204, 2001 WL 305827, *3 

(Mar. 30, 2001). By extension, the alleged violations of regulations promulgated by the 

Ohio Secretary of State do not constitute negligence per se, as such regulations are 

merely administrative rules, not legislative enactments. In short, appellants have failed to 

demonstrate that appellees have violated a legislative enactment that would give rise to 

negligence per se and exclude the application of the open-and-obvious doctrine. 

B. Active Negligence 

{¶ 35} Next, appellants contend that the hazardous conditions that led to Patricia’s 

fall were caused by the union’s active negligence, namely the placement of the unsecured 

floor mat over the inclined portion of the floor. Notably, appellants failed to introduce 

evidence to affirmatively demonstrate that the floor mat was actually placed over the 

incline. Indeed, the photographs of the floor mat, taken after the fall, depict the mat 

resting on the flat surface of the floor and away from the incline, and the witnesses of the 

fall, including Patricia, could not state with certainty that the floor mat was over the 
15. 

inclined portion of the floor prior to the fall. Moreover, the placement of the mat 

occurred long before Patricia entered onto the premises, and therefore does not constitute 

“active negligence.” Dunn v. Heineman’s Winery, 6th Dist. Ottawa No. OT-14-044, 

2015-Ohio-4054, ¶ 12 (finding that the defendant’s placement of plywood boards did not 

constitute active negligence, because it occurred before the plaintiff arrived at the 

defendant’s winery and had therefore become a static condition through the lapse of 

time). Thus, the “active negligence” exception to the open-and-obvious doctrine does not 

apply. 

C. Attendant Circumstances 

{¶ 36} Finally, appellants contend that the open-and-obvious doctrine does not 

apply here because there were attendant circumstances that diverted Patricia’s attention 

away from the hazardous floor mat and sloped floor. 

{¶ 37} An “attendant circumstance” has been described as “a factor that 

contributes to the fall and is beyond the injured person’s control. The phrase refers to all 

circumstances surrounding the event, such as time and place, the environment or 

background of the event, and the conditions normally existing that would unreasonably 

increase the normal risk of a harmful result of the event.” Jackson v. Pike Cty. Bd. of 

Commrs., 4th Dist. Pike No. 0CA805, 2010-Ohio-4875, ¶ 21. Ordinarily, “the attendant 

circumstance must be ‘an unusual circumstance of the property owner’s making.’” 

Haller v. Meijer, Inc., 10th Dist. Franklin No. 11AP-290, 2012-Ohio-670, ¶ 10, quoting 

McConnell v. Margello, 10th Dist. Franklin No. 06AP-1235, 2007-Ohio-4860, ¶ 17; see 
16. 

also Lang, 122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d 120, at ¶ 27 (“none of the 

facts appellant raises as ‘attendant circumstances’ are conditions within the landowner’s 

control. For example, the fact that her husband was tired and required an oxygen tank 

were not within the landowner’s control.”). 

{¶ 38} In their brief, appellants specify the attendant circumstances faced by 

Patricia as “her desire to vote, the presence of her husband, her movement through the 

exterior public entrance doors of the Union Hall, and her intended progress towards the 

voting machines within the facility.” These are not attendant circumstances that 

eliminate the application of the open-and-obvious doctrine. None of these factors were in 

any way unusual, nor were they circumstances that were within appellees’ control. 

{¶ 39} In light of the foregoing, we conclude that the hazardous conditions alleged 

by appellants (the floor mat and the incline of the floor) were open and obvious to 

Patricia at the time of her fall. Because no exceptions to the open-and-obvious doctrine 

apply in this case, summary judgment in appellees’ favor was appropriate. Accordingly, 

we find appellants’ assignments of error not well-taken. 

III. Conclusion 

{¶ 40} In light of the foregoing, the judgment of the Lucas County Court of 

Common Pleas is hereby affirmed. Appellants are ordered to pay the costs of this appeal 

pursuant to App.R. 24. 

Judgment affirmed. 

 
17. 

 Lowe v. Local Union 

 No. 14 U.A.W. 

 C.A. No. L-19-1042 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Arlene Singer, J. _______________________________ 

JUDGE 

Christine E. Mayle, J. 

 _______________________________ 

Gene A. Zmuda, P.J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE 

This decision is subject to further editing by the Supreme Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.supremecourt.ohio.gov/ROD/docs/.