[Cite as Meloy v. Circle K Store, 2013-Ohio-2837.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT 

PORTAGE COUNTY, OHIO 

GENEVA MELOY, et al., : O P I N I O N 

 Plaintiffs-Appellants, :

CASE NO. 2012-P-0158

 - vs - :

CIRCLE K STORE, et al., :

 Defendant-Appellee. :

Civil Appeal from the Portage County Court of Common Pleas, Case No. 2011 CV 

00305. 

Judgment: Reversed and remanded. 

George W. Cochran, 2016 Sherwood Avenue, Louisville, KY 40205 (For PlaintiffsAppellants). 

Vincent J. Lodico and Robert C. Buchbinder, Crabbe, Brown & James, LLP, 500 South 

Front Street, Suite 1200, Columbus, OH 43215 (For Defendant-Appellee). 

CYNTHIA WESTCOTT RICE, J. 

{¶1} Appellants, Geneva Meloy, et al., appeal from the judgment of the Portage 

County Court of Common Pleas granting appellee, Circle K Store, summary judgment. 

At issue is whether there is a genuine issue of material fact on whether the condition 

which allegedly caused appellant-Geneva Meloy (“Meloy”) to trip and fall was open and 

obvious. For the reasons discussed in this opinion, we reverse the judgment of the trial 

court and remand the matter for further proceedings. 
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{¶2} Just before 7 a.m., on August 6, 2010, Meloy stopped into appellee’s store 

in Brimfield, Ohio to purchase lottery tickets. After making the purchase, she exited the 

store, turned left, and proceeded to walk toward her vehicle. Displays situated outside 

the Circle K narrowed the walkway that served as both the ingress and egress to the 

store. As Meloy approached a pallet of Morton water-softening salt, she moved toward 

the display to accommodate other patrons attempting to enter the store. Meloy felt the 

fabric of her pants snag on something and, unable to regain her balance, fell to the 

ground, injuring her knees and shoulder. According to Meloy, as she passed the pallet, 

her leg became caught on a sign advertising the price of the salt. She further claimed 

she did not notice the sign until after she fell due to its location and size. 

{¶3} With the assistance of two unknown individuals, Meloy returned to her feet 

and filed an incident report with Robert Wolfe, the store’s manager. After returning 

home, Meloy sought medical treatment, which revealed she suffered a fracture to her 

right shoulder and bruises to her knees. 

{¶4} Appellants filed a complaint against appellee alleging negligence. After 

completing discovery, appellee moved for summary judgment. Appellants filed a 

memorandum in opposition to the motion. On December 7, 2012, the trial court granted 

appellee’s motion, ruling appellee owed Meloy no duty of care because the condition at 

issue was open and obvious. This appeal follows. 

{¶5} Appellants assign six errors for this court’s review. Each assigned error 

contests the trial court’s entry of summary judgment on their negligence claim. 

Summary judgment is a procedural tool that terminates litigation and thus should be 

entered with circumspection. Davis v. Loopco Industries, Inc., 66 Ohio St.3d 64, 66 
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(1993). Summary judgment is proper where (1) there is no genuine issue of material 

fact remaining to be litigated; (2) the movant is entitled to judgment as a matter of law; 

and (3) it appears from the evidence that reasonable minds can come to but one 

conclusion, and, viewing the evidence in the non-moving party’s favor, that conclusion 

favors the movant. See e.g. Civ.R. 56(C). 

{¶6} When considering a motion for summary judgment, the trial court may not 

weigh the evidence or select among reasonable inferences. Dupler v. Mansfield 

Journal Co., 64 Ohio St.2d 116, 121 (1980). Rather, all doubts and questions must be 

resolved in the non-moving party’s favor. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 

359 (1992). Hence, a trial court is required to overrule a motion for summary judgment 

where conflicting evidence exists and alternative reasonable inferences can be drawn. 

Pierson v. Norfork Southern Corp., 11th Dist. No. 2002-A-0061, 2003-Ohio-6682, ¶36. 

In short, the central issue on summary judgment is, “whether the evidence presents 

sufficient disagreement to require submission to a jury or whether it is so one-sided that 

one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 251-252 (1986). On appeal, we review a trial court’s entry of summary judgment

de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). 

{¶7} For their first assignment of error, appellants allege: 

{¶8} “The trial court committed prejudicial error in granting defendant’sappellee’s, Circle K Store’s[,] motion for summary judgment based upon its 

determination that defendant’s-appellee’s evidence on the ‘open and obvious’ defense 

was stronger than plaintiffs’-appellants’ evidence.” 
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{¶9} Initially, we note that appellants’ first assignment of error suggests the trial 

court engaged in a weighing exercise in granting appellee summary judgment. A review 

of the entry, however, demonstrates the trial court’s conclusion was premised upon its 

finding that appellants did not advance sufficient evidence to create an issue for trial on 

the issue of duty. The court did not find appellee’s defense “stronger” than appellants’ 

evidence. Rather, the court determined appellants failed to meet their reciprocal burden 

under Civ.R. 56. Given this clarification, we shall proceed to consider the propriety of 

the trial court’s conclusion. 

{¶10} In order to set forth a claim for negligence, a plaintiff must prove the 

following elements: (1) a duty of care owed by the defendant to the plaintiff, (2) a breach 

of that duty, (3) causation, and (4) damages. See e.g. Hudspath v. The Cafaro 

Company, 11th Dist. No. 2004-A-0073, 2005-Ohio-6911, ¶9. In this case, Meloy was an 

invitee on appellee’s business premises. A business owner owes his or her invitees a 

duty of reasonable care in maintaining the business premises in a safe condition. 

Estate of Mealy v. Sudheendra, 11th Dist. No. 2003-T-0065, 2004-Ohio-3505, ¶29. 

This duty does not extend to dangers or obstructions that are so obvious that the invitee 

may reasonably be expected to discover them and protect herself against their potential 

danger. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 80, 2003-Ohio-2573. 

{¶11} The open-and-obvious doctrine is premised upon the legal recognition that 

one is put on notice of a hazard by virtue of its open and obvious character. Id. Where 

the danger is obvious, an owner may reasonably expect that invitees will discover those 

hazards and take proper measures to protect themselves. Thus, “[w]hen applicable, the 

open and obvious doctrine abrogates the duty to warn and completely precludes 
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negligence claims.” Hudspath, supra, citing Hobart v. Newton Falls, 11th Dist. No. 

2002-T-0122, 2003-Ohio-5004, ¶10. 

{¶12} The question of whether a danger is open and obvious is an objective one. 

Goode v. Mt. Gillion Baptist Church, 8th Dist. No. 87876, 2006-Ohio-6936, ¶25. The 

fact that a plaintiff was unaware of the danger is not dispositive of the issue. Id. Hence, 

a court must consider whether, in light of the specific facts and circumstances of the 

case, an objective, reasonable person would deem the danger open and obvious. See 

Stanfield v. Amvets Post No. 88, 2d Dist. No. 06CA35, 2007-Ohio-1896, ¶12. 

{¶13} Notwithstanding the objective nature of the inquiry, the question of 

whether a danger is open and obvious is not always a question that can be decided as 

a matter of law simply because it may be visible. Furano v. Sunrise Inn of Warren, Inc., 

11th Dist. No. 2008-T-0132, 2009-Ohio-3150, ¶23, citing Hudspath, supra. To the 

contrary, the “attendant circumstances” of a slip and fall may create a material issue of 

fact regarding whether the danger was open and obvious. Id. Attendant circumstances 

involve all facts relating to the slip and fall, such as “the condition of the sidewalk as a 

whole, the volume of pedestrian traffic, the visibility of the defect, and whether the 

accident site was such that one’s attention could easily be diverted.” Armstrong v. 

Meade, 6th Dist. No. L-06-1322, 2007-Ohio-2820, ¶14. In effect, therefore, attendant 

circumstances include any distraction that might divert an ordinary person’s attention in 

the same circumstances and consequently reduce the amount of care a reasonable 

person would exercise. Hudspath, supra, at ¶19. 

{¶14} In this case, appellee’s store had multiple window signs and two displays 

on the walkway traversed by Meloy when she fell. The first, a five feet tall, four feet long 
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display advertising window washing fluid; the second, a water-softening-salt display that 

incorporated two adjacent pallets of salt, each of which had a sign advertising the price 

of the salt. The signs were one-eighth of an inch thick and flexible such that they could 

be bent at their base and slid under the pallets. After the signs were slid under the 

pallets, the signs protruded from the displays approximately six inches. Testimony from 

appellee’s manager, as well as pictures depicting the displays, demonstrated that the 

signs had a tendency to droop both forward toward the walkway and backward onto the 

display. Given the size of the pallets, appellee’s manager estimated customers had 

approximately three and one-half to four feet of walking space when entering or exiting 

the store. It is not clear whether this spatial estimation accounted for the signs’ six-inch 

protrusion from the pallets. 

{¶15} Appellant, as she left the store, testified she had to share the walkway with 

other customers who were attempting to enter the store, moving in the opposite 

direction. Appellant stated she had little room to walk given the placement of the pallets 

and the oncoming pedestrians. As a result, she testified she moved closer to the 

display to accommodate the passers-by. Upon doing so, appellant testified she felt a 

hard snag on her pant leg; she was unable to regain her balance and fell to the ground. 

{¶16} Appellant testified she believed her pant leg caught one of the protruding 

signs because, after the fall, she noticed the sign was pulled from the pallet. Prior to the 

fall, however, appellant testified she had not noticed the signs at all. Furthermore, in an 

affidavit, appellant made the following averment: “The danger I am complaining about 

is not the frontal view of Morton’s signs. Rather, it is the combination of three fatal 
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factors: (a) the difficulty of perceiving the signs from the side (b) their tendency to droop

over time and (c) the narrow passageway on the sidewalk.” (Emphasis sic.) 

{¶17} The trial court concluded the protruding signage was an open and obvious 

hazard to appellee’s business invitees. Given the testimony, exhibits, and Meloy’s 

affidavit, however, we maintain the attendant circumstances surrounding the trip and fall 

are sufficient to create a genuine issue of material fact on the issue of whether the 

danger at issue was obvious. The sidewalk was narrowed due to the largeness of the 

pallets and Meloy averred she did not notice the signs from the side because they were 

only one-eighth of an inch thick and their positioning rendered them not easily 

perceivable. Appellant underscored she moved closer to the display as she walked to 

make room for customers attempting to enter the store, yet she still was unable to avoid 

the danger given the surrounding circumstances. 

{¶18} To conclude that the hazard in this case was open and obvious as a 

matter of law, in light of the foregoing facts, would require this court to weigh the 

evidence and select among competing, reasonable inferences relating to the character 

and magnitude of the distractions as well as the other circumstances surrounding the 

incident; such an exercise, which is completely verboten in the context of summary 

judgment review, would be tantamount accepting appellee’s interpretation of the nature 

of the danger it created and ignoring the mandate to “resolve all doubts in the nonmoving party’s favor.” See e.g. Kalan v. Fox, 187 Ohio App.3d 687, 2010-Ohio-2951, 

¶44 (11th Dist.). Although appellee urges us to affirm the trial court’s decision, its 

arguments do not diminish the contrary evidence to the point that “it is so one-sided that 

[appellee] must prevail as a matter of law.” Anderson, supra, at 251-252; see also 
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Pierson, supra. We therefore hold the conflicting evidence and the inferences that can 

be drawn therefrom create a genuine issue of material fact that cannot be resolved 

through summary judgment. 

{¶19} We acknowledge that appellant may have been able to protect herself 

from the danger had she been looking at the ground prior to approaching the pallet. 

This court has emphasized, however, that the law does not impose an obligation on an 

individual to constantly look down while walking. Hudspath, supra, at ¶22, citing 

Grossnickle v. Germantown, 3 Ohio St.2d 96 (1965) paragraph two of the syllabus. 

This is especially so where an individual is justifiably focused on avoiding a potential 

collision with other individuals who may not be paying attention to her. 

{¶20} Viewing the facts most strongly in appellant’s favor, we hold the trial court 

erred in finding the dangerous condition was open and obvious as a matter of law. The 

attendant circumstances demonstrate that an invitee attempting to negotiate a narrow 

walkway while attempting to avoid other invitees entering the store would not 

necessarily discover the protruding signs given the way in which they were situated. 

We therefore conclude there is a genuine issue of material fact as to whether, in light of 

the specific circumstances of this case, the danger at issue was open and obvious. 

{¶21} Appellants’ first assignment of error is sustained. 

{¶22} Appellants’ remaining assignments of error provide: 

{¶23} “[2.] The trial court committed prejudicial error in granting defendant’sappellee’s, Circle K Store’s, motion for summary judgment based upon its opinion that 

plaintiffs-appellants had not generated sufficient evidence to ‘rebut’ defendant’sappellee’s assertions. 
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{¶24} “[3.] The trial court committed prejudicial error in granting defendant’s –

appellee’s Circle K Store’s, motion for summary judgment based upon its opinion that 

defendant-appellee owed no duty to plaintiffs-appellants because the danger was ‘open 

and obvious’ as a matter of law. 

{¶25} “[4.] The trial court committed prejudicial error in granting defendant’sappellee’s Circle K Store’s, motion for summary judgment based upon its determination 

that defendant-appellee owed no duty of care to plaintiffs- because the factual evidence 

regarding the nature of the danger favored defendant-appellee. 

{¶26} “[5.] The trial court committed prejudicial error in granting defendant’sappellee’s Circle K Store’s, motion for summary judgment based upon its determination 

that defendant-appellee satisfied the ‘open and obvious’ defense without consideration 

of the attendant circumstances surrounding plaintiff’s-appellant’s injury. 

{¶27} “[6.] The trial court committed prejudicial error in granting defendant’sappellee’s, Circle K Store’s, motion for summary judgment based on the ‘open and 

obvious’ doctrine without considering whether the sidewalk was the only means of 

egress to the store.” 

{¶28} Each of appellants’ remaining five assignments of error raise issues that 

are either duplicative of the arguments asserted under their first assigned error or assert 

abstract challenges that need not be addressed due to our disposition of that assigned 

error. We therefore overrule each of appellants’ remaining assignments of error as 

moot. 
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{¶29} For the reasons discussed in this opinion, the judgment of the Portage 

County Court of Common Pleas is reversed and the matter remanded for further 

proceedings. 

COLLEEN MARY O’TOOLE, concurs, 

TIMOTHY P. CANNON, P.J., dissents with Dissenting Opinion. 

_______________ 

TIMOTHY P. CANNON, P.J., dissenting. 

{¶30} Because I would affirm the trial court’s ruling that the danger at issue was 

open and obvious as a matter of law, I respectfully dissent. 

{¶31} Open and obvious dangers are neither hidden nor concealed from view. 

Bond v. Mathias, 11th Dist. No. 94-T-5081, 1995 Ohio App. LEXIS 979, *10 (Mar. 17, 

1995); see also Haymond v. B.P. Am., 8th Dist. No. 86733, 2006-Ohio-2732, ¶16. The 

determination of the openness and obviousness of a danger requires a review of the 

facts and circumstances of the particular case. Id. Consequently, the benchmark for 

the courts is not whether the person saw the object or danger, but whether the object or 

danger was observable. Kirksey v. Summity Cty. Parking Deck, 9th Dist. No. 22755, 

2005-Ohio-6742, ¶11. As the majority observes, however, attendant circumstances 

may create a material issue of fact as to whether the open and obvious doctrine applies. 

{¶32} While, as the majority notes, attendant circumstances embrace all 

distracting aspects of a slip and fall to overcome the obviousness of a hazard, it stands 

to reason that the circumstances must be sufficiently significant such that a reasonable 
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person would be unable to acknowledge and appreciate the obvious danger about 

which a business owner would otherwise have no duty to warn. As such, the Tenth 

Appellate District has commented that “attendant circumstances 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.’” Mayle v. Dept. of Rehab. & Corr., 10th 

Dist. No. 09AP-541, 2010-Ohio-2774, ¶20, quoting Cummin v. Image Mart Inc., 10th 

Dist. No. 03AP-1284, 2004-Ohio-2840, ¶10. 

{¶33} In this case, the sign at issue was attached to a large pallet of salt. 

Appellant admitted she passed the pallets, apparently without incident, when she was 

entering the store. She stated, however, she did not notice the displays or the signs 

when she entered because she was not “paying attention.” Upon exiting, she asserted 

she tripped because she moved toward the display to avoid other business invitees 

entering the store. 

{¶34} A review of the exhibits demonstrates the signs and pallets were 

objectively observable. Appellant is not even sure what she tripped over; however, she 

thinks it must have been the cardboard sign protruding from the salt bag display. 

Contrary to appellant’s protestations, the cardboard sign is anything but invisible. The 

one-eighth of an inch measurement to which she refers is only accurate under one 

circumstance: if the sign was hanging straight up and down, and one was approaching 

on a direct line from the side. There is no evidence that this circumstance was the 

case. In fact, appellant argues the sign was dangerous because it was probably 

drooped over. However, this fact certainly does not help appellant’s argument; quite the 
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opposite is true. If the sign was drooped over, it would have been hovering above the 

ground—clearly observable. 

{¶35} Moreover, oncoming pedestrian traffic at a convenience store cannot be 

considered “so abnormal” or significant a circumstance that the risk of harm was 

unreasonably increased by the nature and situation of the readily observable display. 

Consequently, I would hold that appellant failed to establish any “attendant 

circumstances,” and the danger at issue was open and obvious as a matter of law 

therefore rendering any duty to warn unnecessary. While the law is clear that one does 

not have to constantly look down while walking, it does require one to pay attention to 

where one is going. If appellant had been paying attention, there would have been no 

injury.