[Cite as Flack v. Avita Health Sys., 2022-Ohio-3517.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

CRAWFORD COUNTY

JAMIE FLACK,

 PLAINTIFF-APPELLANT, CASE NO. 3-22-03

 v.

AVITA HEALTH SYSTEM, O P I N I O N

 DEFENDANT-APPELLEE.

Appeal from Crawford County Common Pleas Court

Trial Court No. 20-CV-0062

Judgment Affirmed

Date of Decision: October 3, 2022 

APPEARANCES:

George R. Oryshkewych for Appellant

Taylor C. Knight for Appellee
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MILLER, J.

{¶1} This appeal, having been placed on the accelerated calendar, is sua 

sponte being assigned and considered on the regular calendar pursuant to Loc.R. 

12(1). Under the authority of Loc.R. 12(5), we have elected to issue a full opinion 

in lieu of a judgment entry.

{¶2} The case arises from an injury incurred on September 16, 2019, when

plaintiff-appellant, Jamie Flack, a patient at Avita Orthopedic Center, was injured 

while attempting to traverse a sidewalk on the defendant-appellee’s property while 

using a knee scooter. Flack appeals the February 14, 2022 judgment of the Crawford 

County Court of Common Pleas granting Avita Health System’s motion for 

summary judgment. For the reasons that follow, we affirm

{¶3} On September 4, 2019, Flack underwent surgery to treat a heel spur on 

her right foot. (Flack’s Oct. 1, 2020 Depo. at 23-24). On September 16, 2019, she 

attended a post-operative appointment at the Avita Orthopedic Center in Galion, 

Ohio, which is owned and operated by Avita Health System. (Troiano’s Sept. 24, 

2020 Depo. at 6-7). Thomas Troiano, the facilities manager for Avita Health 

System described the Avita location located at 955 Hosford Road, Galion, Ohio. 

(Id. at 6-17). The facility has a single main patient entrance located under a 

breezeway and a carport. (Id. at 13-14, Ex. 1). The patient entrance has sloped 

concrete leading to the doors, which allows patients to be dropped off at the entrance 
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of the building. (Id. at 14, Ex. 1). Extending to the north and south of the building 

is a sidewalk leading to the north and south parking lots, respectively. (Troiano’s 

Sept. 24, 2020 Depo. at 6-7). Handicapped parking is located in both the north and 

the south ends of the parking lots. (Troiano’s Sept. 24, 2020 Depo. at 6-7, Ex. 2). 

According to Troiano, a patient who parked in the north parking lot may use the 

north sidewalk to access the building. (Troiano’s Sept. 24, 2020 Depo. at 14-16). 

However, patients can access the building from the parking lot without traversing 

the sidewalk. (Id. at 15). In fact, many patients who park in the north parking lot 

access the building by traveling through the parking lot rather than the sidewalk. 

(Id. at 15-16); (Hyer’s Nov. 16, 2020 Depo. at 8-12).

{¶4} Troiano stated that, prior to September 16, 2019, he observed some 

wear on the north sidewalk and determined that it should be replaced for “aesthetic 

purposes.” (Troiano’s Sept. 24, 2020 Depo. at 16). According to Troiano, in August 

2019, while at the facility on other business, he noticed an inconsistency in the color 

of the sidewalk. (Id. at 16-17). When he investigated further, he also determined 

some of the concrete had worn or eroded away and decided to have the sidewalk 

repaired because it “didn’t look good.” (Id. at 17). Troiano recalled putting the tip 

of his finger on the edge of one of the deteriorated spots to determine its depth and 

estimated that the depth was approximately one-eighth to three-sixteenths of an inch 

and was less than a quarter of an inch. (Id. at 33-34). When presented with a photo 
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of one section of the sidewalk, Troiano admitted that the erosion spanned nearly the 

entire horizontal length of the sidewalk joint. (Troiano’s Sept. 24, 2020 Depo. at 

28, Ex. 7). However, Troiano maintained that, due to its shallow depth, he did not 

view the imperfections in the sidewalk as a trip hazard. (Id. at 28-29). When the 

sidewalk was repaired subsequent to Flack’s fall, Troiano stated that approximately 

ten sections of the sidewalk were replaced with new concrete. (Id. at 20-21).

{¶5} At the time of her post-operative appointment on September 16, 2019, 

Flack had been instructed by her physician not to bear weight on her right foot due 

to her recent surgery, and Flack was ambulating with the assistance of a knee 

scooter. (Flack’s Oct. 1, 2020 Depo. at 24-25). She purchased the knee scooter 

from a family friend and did not receive an instruction manual or training relating 

to its use or operation. (Id. at 28-29). However, Flack stated that it was “obvious” 

to her how to operate the equipment. (Id. at 28). Flack’s physician prescribed a 

wheelchair rather than a knee scooter; but, Flack stated that she discussed the option 

of a knee scooter with her operating physician who indicated that it was a suitable 

option. (Id. at 24-25, 28-29). Additionally, her operating physician observed her 

using the knee scooter during the post-operative appointment on September 16, 

2019 and did not comment. (Id. at 29). According to Flack, the post-operative 

appointment on September 16, 2019 was the first time she used the knee scooter 

outside of her residence. (Id. at 28).
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{¶6} Flack’s daughter and son-in-law accompanied her to the post-operative 

appointment on September 16, 2019. (Id. at 27). When Flack arrived at the 

appointment, her daughter pulled the vehicle up to the car port at the main entrance 

of the building and her son-in-law assisted Flack into the building. (Id. at 27-28). 

Once Flack was inside the building, her daughter parked her vehicle in a 

handicapped spot on the north parking lot. (Id.). 

{¶7} Following the appointment, Flack traversed along the sidewalk leading 

to the north parking lot. (Id. at 29-30). Flack led the way and her daughter and sonin-law followed behind, carrying her purse and belongings. (Id. at 34-35). 

According to Flack, as she traversed the sidewalk leading to the north side of the 

parking lot, the knee scooter “just stopped on [her]” and she flipped over the 

handlebars of the scooter and onto the concrete sidewalk. (Id. at 30). Flack stated 

that she landed on the ground on her bottom, but her right heel hit the concrete when 

she landed. (Id. at 34-35). Subsequent medical testing revealed that Flack tore her 

right Achilles tendon. (Id. at 38). Several days later, she underwent surgery to 

repair the injury. (Id. at 38-39). 

{¶8} According to Flack, despite having been to Avita Orthopedic Center

approximately three times prior, she had never traveled on the sidewalk to the north 

parking lot before her injury. (Id. at 29-30). Rather, when entering and exiting the 

building on previous locations, she traveled through the parking lot to the front door. 
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(Id.). Flack admitted that, prior to her fall, she observed the imperfection in the area 

of the sidewalk where the wheel of her scooter became caught in the concrete and 

stated that the portion of the sidewalk was “all broken up.” (Id. at 30-34).

{¶9} On April 1, 2020, Flack filed a complaint against Avita Health System

asserting a claim of negligence. On April 21, 2020, Avita Health System filed its 

answer to the complaint. 

{¶10} Avita Health System filed a motion for summary judgment on April 

15, 2021. In its motion, Avita Health System argued that it did not owe Flack a duty 

to warn of the alleged defect in the sidewalk that caused her fall. Specifically, Avita 

Health System argued the hazard was open and obvious. On May 26, 2021, Flack 

filed her response to Avita Health System’s motion for summary judgment. On 

June 4, 2021, Avita Health System filed its reply in support of its motion for 

summary judgment. 

{¶11} On February 14, 2022, the trial court granted Avita Health System’s 

motion for summary judgment. Flack filed her notice of appeal on February 24, 

2022. She raises one assignment of error for our review.

Assignment of Error

The trial court erred as a matter of law, by granting summary 

judgment against plaintiff/appellant.

{¶12} In her sole assignment of error, Flack argues the trial court erred by 

granting Avita Health System’s motion for summary judgment. Specifically Flack 
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argues that reasonable minds could conclude the condition of the sidewalk 

constituted negligence per se. She also argues that the danger posed by the spalled 

concrete was not open and obvious to her and that attendant circumstances preclude 

the application of the open and obvious doctrine. 

{¶13} We review a decision to grant summary judgment de novo. Doe v. 

Shaffer, 90 Ohio St.3d 388, 390 (2000). “De novo review is independent and 

without deference to the trial court’s determination.” ISHA, Inc. v. Risser, 3d Dist. 

Allen No. 1-12-47, 2013-Ohio-2149, ¶ 25, citing Costner Consulting Co. v. U.S. 

Bancorp, 195 Ohio App.3d 477, 2011-Ohio-3822, ¶ 10 (10th Dist.). Summary 

judgment is proper where there is no genuine issue of material fact, the moving party 

is entitled to judgment as a matter of law, and reasonable minds can reach but one 

conclusion when viewing the evidence in favor of the non-moving party, and the 

conclusion is adverse to the non-moving party. Civ.R. 56(C); State ex rel. Cassels 

v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 219 (1994).

{¶14} “The party moving for summary judgment has the initial burden of 

producing some evidence which demonstrates the lack of a genuine issue of material 

fact.” Carnes v. Siferd, 3d Dist. Allen No. 1-10-88, 2011-Ohio-4467, ¶ 13, citing 

Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). “In doing so, the moving party is 

not required to produce any affirmative evidence, but must identify those portions 

of the record which affirmatively support his argument.” Id., citing Dresher at 292-
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293. “The nonmoving party must then rebut with specific facts showing the 

existence of a genuine triable issue; he may not rest on the mere allegations or 

denials of his pleadings.” Id., citing Dresher at 292 and Civ.R. 56(E).

{¶15} Material facts are those facts “‘that might affect the outcome of the 

suit under the governing law.’” Turner v. Turner, 67 Ohio St.3d 337, 340 (1993), 

quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986). 

“Whether a genuine issue exists is answered by the following inquiry: [d]oes the 

evidence present ‘a sufficient disagreement to require submission to a jury’ or is it 

‘so one-sided that one party must prevail as a matter of law[?]’” Id., quoting 

Anderson at 251-252, 106 S.Ct. 2512.

{¶16} “To establish a cause of action for negligence, a plaintiff must show 

the existence of a duty, breach of that duty, and an injury proximately caused by the 

breach.” Daley v. Fryer, 3d Dist. Allen No. 1-14-48, 2015-Ohio-930, ¶ 16, citing 

Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 680 

(1998). To defeat a defendant’s properly supported motion for summary judgment 

in a negligence action, the plaintiff must first establish that the defendant owed him 

a duty. Id., citing Kaeppner v. Leading Mgt., Inc., 10th Dist. Franklin No. 05AP1324, 2006-Ohio-3588, ¶ 9. “The plaintiff must then present evidence from which 

reasonable minds could conclude that the defendant breached that duty and that the 

breach was the proximate cause of the plaintiff’s injuries.” Id. 
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{¶17} Flack argues that defendant-appellee was negligent for failing to 

properly maintain the premises and warn her of the danger posed by imperfections 

in the north sidewalk of the facility. 

{¶18} “A shopkeeper ordinarily owes its business invitees a duty of ordinary 

care in maintaining the premises in a reasonably safe condition and has the duty to 

warn its invitees of latent or hidden dangers.” Armstrong v. Best Buy Co., Inc., 99 

Ohio St.3d 79, 2003-Ohio-2573, ¶ 5, citing Paschal v. Rite Aid Pharmacy, Inc., 18 

Ohio St.3d 203, 204 (1985) and Jackson v. Kings Island, 58 Ohio St.2d 357, 360 

(1979). “However, this duty does not require landowners to insure the safety of 

invitees on their property.” Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 

2009-Ohio-2495, ¶ 11. “[T]he ‘open and obvious’ doctrine states that an owner or 

occupier of property owes no duty to warn invitees entering the property of open 

and obvious dangers on the property.” Simmers v. Bentley Constr. Co., 64 Ohio 

St.3d 642, 644 (1992). “[T]he open-and-obvious doctrine obviates the duty to warn 

and acts as a complete bar to any negligence claims.” Armstrong at ¶ 5. “The ‘open 

and obvious’ doctrine states that an owner or occupier of property owes no duty to 

warn invitees entering the property of open and obvious dangers on the property.” 

Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 644 (1992).

{¶19} “In general, ‘[o]pen-and-obvious dangers are those not hidden, 

concealed from view, or undiscoverable upon ordinary inspection[.]’” Shipman v. 
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Papa John’s, 3d Dist. Shelby No. 17-14-17, 2014-Ohio-5092, ¶ 22, quoting 

Thompson v. Ohio State Univ. Physicians, Inc., 10th Dist. Franklin No. 10AP-612, 

2011-Ohio-2270, ¶ 12. “However, an individual ‘does not need to observe the 

dangerous condition for it to be an “open-and-obvious” condition under the law; 

rather, the determinative issue is whether the condition is observable.’” Id., quoting 

Thompson, at ¶ 12. “Thus, ‘[e]ven in cases where the plaintiff did not actually notice 

the condition until after he or she fell, [courts have] found no duty where the plaintiff 

could have seen the condition if he or she had looked.’” Id., quoting Thompson at 

¶ 12. 

{¶20} “In most situations, whether a danger is open and obvious presents a 

question of law.” Carnes, 2011-Ohio-4467, at ¶ 16, citing Lang, 2007-Ohio-3898, 

at ¶ 23, citing Hallowell v. Athens, 4th Dist. Athens No. 03CA29, 2004-Ohio-4257, 

¶ 21 and Nageotte v. Cafaro Co., 160 Ohio App.3d 702, 2005-Ohio-2098, ¶ 28 (6th 

Dist.). “There may, however, be situations where disputed facts may exist regarding 

the openness and obviousness of a hazard, possibly creating an issue of material 

fact.” Id., citing Ray v. Wal-Mart Stores, Inc., 4th Dist. Washington No. 08CA41, 

2009-Ohio-4542, ¶ 29 and Lang at ¶ 23. For example, the existence of “attendant 

circumstances” may create an issue of material fact. Id.

{¶21} “Attendant circumstances may exist which distract an individual from 

exercising the degree of care an ordinary person would have exercised to avoid the 
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danger.” Id. at ¶ 17, citing Aycock v. Sandy Valley Church of God, 5th Dist. 

Tuscarawas No. 2006 AP 09 0054, 2008-Ohio-105, ¶ 26, citing McGuire v. Sears, 

Roebuck & Co., 118 Ohio App.3d 494, 499 (1st Dist.1996). “An attendant 

circumstance is usually an active event as opposed to a static condition.” Id. This 

court recognized that an “attendant circumstance” is defined as:

“[A] factor that contributes to the fall and is beyond the control of the 

injured party. * * * The phrase refers to all facts relating to the event, 

such as time, place, surroundings or background and the conditions 

normally existing that would unreasonably increase the normal risk of 

a harmful result of the event. * * * However, ‘[b]oth circumstances 

contributing to and reducing the risk of the defect must be 

considered.’” 

Williams v. Lowe’s of Bellefontaine, 3d Dist. Logan No. 8-06-25, 2007-Ohio-2045, 

¶ 18, quoting Benton v. Cracker Barrel Old Country Store, Inc., 10th Dist. Franklin 

No. 02AP1211, 2003-Ohio-2890, ¶ 17, quoting Sack v. Skyline Chili, Inc., 12th Dist. 

Warren No. CA2002-09-101, 2003-Ohio-2226, ¶ 20.

{¶22} “To serve as an exception to the open-and-obvious doctrine, an 

attendant circumstance 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.’” Shipman, 2014-Ohio-5092, at ¶ 29, quoting Mayle v. Ohio Dept. 

of Rehab. & Corr., 10th Dist. Franklin No. 09AP-541, 2010-Ohio-2774, ¶ 20. 

“[A]ttendant circumstances are facts that significantly enhance the danger of the 

hazard.’” Id., quoting Haller v. Meijer, Inc., 10th Dist. Franklin No. 11AP-290, 
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2012-Ohio-670, ¶ 10. “Furthermore, the attendant circumstance must be an 

‘“unusual circumstance of the property owner’s making.”’” Id., quoting Haller at ¶ 

10, quoting McConnell v. Margello, 10th Dist. Franklin No. 06AP-1235, 2007-

Ohio-4860, ¶ 17. “‘Attendant circumstances do not, though, include regularly 

encountered, ordinary, or common circumstances.’” Id., quoting Colville v. Meijer 

Stores Ltd. Partnership, 2d Dist. Miami, No. 2011-CA-011, 2012-Ohio-2413, ¶ 30. 

Also, “‘[a]ttendant circumstances do not include the individual’s activity at the time

of the fall unless the individual’s attention was diverted by an unusual circumstance 

of the property owner’s making.’” Meyer v. Dayton, 2d Dist. Montgomery No. 

27002, 2016-Ohio-8080, ¶ 19, quoting Margello, 2007-Ohio-4860, at ¶ 17.

{¶23} We will first address whether the hazard was open and obvious. 

Construing the evidence in a light most favorable to Flack, we conclude that that the 

open-and-obvious doctrine obviated any duty owed to Flack. There is no genuine 

issue of material fact that the condition of the sidewalk was so obvious and apparent 

to Avita Health System’s invitees that they were reasonably expected to discover it 

and protect themselves against it. On the day Flack fell in the parking lot, the 

weather conditions were clear and sunny. (Flack’s Oct. 1, 2020 Depo. at 29). Flack 

was able to observe the sidewalk in front of her, even while using the knee scooter. 

(Id. at 30). Flack’s daughter and son-in-law were walking behind her at the time of 

the injury and were carrying her belongings, including her purse and phone. (Id. at 
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30, 34-35). Importantly, Flack admitted in her deposition that she actually saw the 

worn area of the sidewalk prior to her fall. (Id. at 34). Additionally, photos of the

condition of the sidewalk at the time of Flack’s injury demonstrate that the 

imperfection in the sidewalk would have been discoverable upon ordinary 

inspection. (Id. at 31-32, Ex. A). That Flack actually observed the condition of the 

sidewalk, yet chose to attempt to traverse it anyway does not take away from its 

open and obvious nature. See Williams v. Lowe’s of Bellefontaine, 3d Dist. Logan. 

No. 8-06-25, 2007-Ohio-2045, ¶ 16 (“[D]ue to the open and obvious nature of the 

hazard, [the plaintiff] was able to avoid the hazard to protect herself, even if she did 

not do so.”). Accordingly, the sidewalk presented an open-and-obvious danger. See 

Cramer v. McCray, 2d Dist. Montgomery No. 20791, 2005-Ohio-5507, ¶ 13

(finding a crack in the sidewalk was an open and obvious danger where the defect 

was visible to all persons using the walkway).

{¶24} In an attempt to avoid the application of the open-and-obvious 

doctrine to the present case, Flack invites us to adopt a strained definition of an 

“obvious” danger. Specifically, Flack argues that the hazard was not obvious to her

because she was using a knee scooter. However, this argument fails. The record is 

clear that Flack chose to use a knee scooter she procured from a friend rather than 

the wheelchair that was prescribed by her physician. Additionally, Flack did not 

receive instructions or training on the use of the knee scooter despite her statement 
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that its use was obvious. Furthermore, Flack had never used the scooter outside of 

her residence prior to the day of her injury. Accordingly, although Flack may not 

have actually perceived the danger posed by the condition of the sidewalk, the openand-obvious doctrine is an objective rather than a subjective standard. “The 

determination of whether a particular danger is open and obvious does not revolve 

around the plaintiff’s peculiar sensibilities or whether the plaintiff actually observed 

the danger.” Ray v. Wal-Mart Stores, Inc., 4th Dist. Washington No. 08CA41, 

2009-Ohio-4542, ¶ 22. “Instead, the question is whether, under an objective 

standard, the danger would have been discernible to a reasonable person.” Id. 

Accordingly, the imperfection in the sidewalk was still open and obvious, despite 

Flack’s failure to recognize the hazard that it posed. As the trial court correctly 

noted in its judgment entry granting summary judgment: 

[S]imple reason tells us that a cracked/uneven sidewalk would pose a 

much more obvious danger to a person using a wheelchair or a knee 

scooter than an ordinary pedestrian. It would be obvious that using a 

wheeled device to travel over a cracked/uneven sidewalk would most 

likely have a jarring effect on the person. This jarring effect alone 

could cause the person to fall. It would also be obvious that the wheels 

of the device could become lodged in a crack in the sidewalk.

(Doc. No. 27).

{¶25} Having determined that the condition of the sidewalk was open and 

obvious, we next turn to Flack’s argument that attendant circumstances bar the 

application of the open-and-obvious doctrine. In support of her argument that 
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attendant circumstances bar application of the open-and-obvious doctrine, Flack 

argues that the fact that the premises was visited by people with difficulty 

ambulating, that Flack was on a knee scooter, and that multiple sections of the 

sidewalk were damaged constituted attendant circumstances. However, we find that 

these circumstances are not “attendant circumstances” as this court has defined 

them. By Flack’s own admission, she was not distracted and her attention was not 

diverted at the time of her injury. (Flack’s Oct. 1, 2020 Tr. at 33-34). Furthermore, 

the details Flack relies on in support of her argument are not those that would 

distract her from observing the danger or make the danger less obvious to her. 

Additionally, the circumstances outlined by Flack were not created by Avita Health 

System. Accordingly, we do not find attendant circumstances present which would 

bar the application of the open-and-obvious doctrine. See Nicoll v. Centerville City 

Schools, 2d Dist. Montgomery No. 27637, 2018-Ohio-36, ¶ 22-23 (finding no 

attendant circumstances where the plaintiff tripped on a sidewalk while traversing 

the pathway with her children).

{¶26} Finally, Flack argues that Avita Health System’s alleged failure to 

properly maintain the sidewalk constitute negligence per se. “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 defendant committed or 

omitted a specific act prohibited or required by statute.” Lang, 2009-Ohio-2495, at 
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¶ 15. However, the plaintiff in a negligence per se action must still prove proximate 

cause and damages. Sikora v. Wenzel, 88 Ohio St.3d 493, 496 (2000). Additionally, 

“a negligence-per-se violation will not preclude defenses and excuses, unless the 

statute clearly contemplates such a result.” Robinson v. Bates, 112 Ohio St.3d 17, 

2006-Ohio-6362, ¶ 23.

{¶27} Flack’s negligence-per-se claims are based on provisions of the City 

of Galion Ordinances and provisions of the Americans with Disabilities Act

(“ADA”). 

{¶28} Flack argues that Avita Health System violated Galion Ordinance 

909.01 which provides, “All sidewalks, curbing, and gutters within the City shall be 

kept in repair by the owner of the property abutting thereon by constructing, 

repairing or relaying of the same, as may be required by the city.” Galion Ordinance 

903.02 defines a sidewalk as “an improved surface for carrying pedestrian traffic on 

a public right of way.” 

{¶29} Flack alleges that due to the condition of the sidewalk on its property, 

Avita Health System violated Galion Ordinance 909.01 resulting in negligence per 

se. However, we do not find that the walkway where Flack was injured constitutes 

a sidewalk pursuant to definition provided in Galion Ordinance 903.01. Rather, the 

sidewalk was located between Avita Health System’s private parking lot and office 

building. Accordingly, it is not a “public right of way” as contemplated by Galion 
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Ordinance 903.01. Thus, by definition, Avita Health System was not in violation 

of Galion Ordinance 909.01. 

{¶30} Next, Flack argues that Avita Health System violated ADA Section 

302.1 which states, in pertinent part, that “[f]loor and ground surfaces shall be 

stable, firm, and slip resistant.” Flack argues that the eroded nature of the sidewalk, 

including concrete “spalling” constituted a violation of this section Specifically, 

Flack argues that the gravel-like fragments or spalls of concrete which appear when 

concrete is slowly broken down into small flakes, and which were present in the 

area of walkway where Flack was injured, violate ADA’s requirement for stable, 

firm, slip resistant surfaces. We disagree. An advisory note to ADA Section 302.1 

provides that “[a] stable surface is one that remains unchanged by contaminants or 

applied force, so that when the contaminant or force is removed, the surface returns 

to its original condition. A firm surface resists deformation by either indentations 

or particles moving on its surface.” 

{¶31} Flack fails to provide authority supporting its contention that concrete 

spalling on a sidewalk violates ADA Section 302.1. Furthermore, we do not find 

authority supporting Flack’s argument. Rather, the facts present here establish that 

the sidewalk at issue was stable and firm. Furthermore, although Flack’s argument 

with respect to ADA Section 302.1 presumes that concrete spalling was the cause 

of her fall, her statements made in her deposition establish that her fall was caused 
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by the wheel of the scooter becoming lodged in a crack in the concrete rather than 

concrete spalling. (Flack’s Oct. 1, 2020 Depo. at 34). Accordingly, we do not find 

that Avita Health System violated ADA Section 302. Having found no genuine 

issue of material fact that the imperfection in the area of the sidewalk where Flack 

fell was open and obvious, we do not find that Avita Health System breached a duty 

of care to Flack. Therefore, we find that the trial court did not err in granting 

summary judgment in favor of Avita Health System.

{¶32} Flack’s assignment of error is overruled.

{¶33} Having found no error prejudicial to the appellant herein in the 

particulars assigned and argued, we affirm the judgment of the Crawford County 

Court of Common Pleas.

Judgment Affirmed

ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.

/jlr