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Law & Litigation Blog

Bad News Bears for Ohio Slip-and-Fall Plaintiffs: Sixth District Affirms Summary Judgment in Darah v. Coaching by Kurt, L.L.C.

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There is yet more bad news for slip-and-fall plaintiffs in Ohio. The Sixth Appellate District, which covers Toledo/Lucas County, just decided the case of Darah v. Coaching by Kurt, L.L.C.

The basic facts were as follows:

{¶ 2} On March 18, 2014, Sherrie was working out with her personal trainer, Michael Yuschak, at a facility in Maumee, Ohio, operated by [Coaching by Kut. L.L.C.]. As part of her routine, Sherrie typically warmed up on the treadmill for a few minutes before lifting weights. On that day, she was walking toward the treadmill when her foot caught a “ripple” in the rubber floor, causing her to lose her balance and fall. As she fell, Sherrie hit her left elbow on some weights. Sherrie suffered a fractured left elbow and right wrist, both of which required surgery to repair. 

Sherrie filed a lawsuit in the Lucas County Common Pleas Court, the Defendant-Gym moved for summary judgment, and the Trial Court granted summary judgment, dismissing the case. The Plaintiff (Sherrie) appealed.

It turned out that the “ripple” was caused by the gym's corner-cutting, sloppy workmanship in installing the gym flooring. The owner had her dad install it, instead of hiring a professional (no idea what her dad’s qualifications were). Her dad just installed the new flooring (presumably that rubber-type carpeting) over the existing wood floor, which caused ripples to come and go in different places. Both the owner and Plaintiff’s personal trainer noticed the ripples right away, and they were never able to correct the problem. The Plaintiff slipped on one of the ripples and hurt herself. Sounds like the gym is in trouble, right?

Well, not necessarily. The “open and obvious” doctrine, which is very strong in Ohio, can help a business avoid liability even if the business was vastly negligent. Here is how Ohio law works on this issue, as explained by the Sixth District:

{¶ 9} “In order to maintain a negligence action, the plaintiff must show the existence of a duty, a breach of that duty, and that the breach of that duty proximately caused the plaintiff’s injury.” Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136, ¶ 18.

{¶ 10} “In Ohio, the status of the person who enters upon the land of another (i.e., trespasser, licensee, or invitee) continues to define the scope of the legal duty that the landowner owes the entrant.” Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315, 662 N.E.2d 287 (1996). Here, the parties do not dispute that Sherrie was on the premises as an invitee. See id. (“Invitees are persons who rightfully come upon the premises of another by invitation, express or implied, for some purpose which is beneficial to the owner.”).

{¶ 11} “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., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 5. However, “[a] shopkeeper is not * * * an insurer of the customer’s safety.” Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 480 N.E.2d 474 (1985). Thus, a shopkeeper “owes no duty to persons entering those premises regarding dangers that are open and obvious.” Armstrong at ¶ 5, citing Sidle v. Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589 (1968), paragraph one of the syllabus. The underlying rationale 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., quoting Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 644, 597 N.E.2d 504 (1992). “Whether a hazard is open and obvious must be determined on the facts in each case.” Miller v. First Internatl. Fid. & Trust Bldg., Ltd., 6th Dist. Lucas No. L-08-1187, 2009-Ohio-6677, ¶ 68. “A hazard is considered to be open and obvious when it is in plain view and readily discoverable upon ordinary inspection.” Id.

The Court found that the Plaintiff did not see the bubble before she fell, but she had seen other bubbles in the flooring at the gym in the past (big problem for a slip-and-fall plaintiff). She was looking at and talking to her personal trainer at the time she fell (another problem). She testified that the gym was well-lit (another fact defendants are quick to cite) and that her view of the floor was unobstructed (ditto). Unfortunately, the opinion does not include a picture of the ripple as in Lattimore v. K&A Market.

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The Court held that the “hazard” at issue was the “ripple” in the surface of the flooring, and that “[i]n determining whether that hazard was open and obvious, the underlying cause of the ripple is immaterial.” The underlying cause of the ripple is immaterial…meaning so much for holding the business responsible for their shoddy install job. No matter how negligent they were, if the plaintiff should have seen the hazard, they aren’t responsible. Doesn’t seem entirely fair. In fact, the Plaintiff even testified, essentially, that the bubble was so small that even if she had looked down right before the fall she would not have seen it. Some courts would have seen this as a disputed issue of material fact that should have gone to a jury – after all, if the hazard was created by the Defendant’s negligence (not seriously in question, it appears) and is not “open and obvious,” the gym could not reasonably expect the Plaintiff to discover the danger and take appropriate measures to protect herself from it (and summary judgment would not have been granted). On the other hand, the Plaintiff’s statement in her deposition that “to be honest with you, I thought it was an accident waiting to happen, but I didn’t think it was going to happen to me” (a death knell to any premises liability case in Ohio) did not help her. Opining that a condition was “an accident waiting to happen” is possibly the worst thing a slip-and-fall plaintiff could do. Still, perhaps one could argue that although she knew about the ripple problem generally, she was unaware of the particular ripple that had just popped up on the day in question as she was walking towards her trainer. As I see it, the Sixth District has expanded the open-and-obvious doctrine. Courts do not like slip-and-fall cases, that is for sure.

The Sixth District’s analysis in affirming the Trial Court’s grant of summary judgment shows how favorable Ohio law is to businesses on this issue:

{¶ 17} Upon our review of the record, we hold that there are no genuine issues of material fact, and that the ripple was an open and obvious condition. Although Sherrie testified that she would have not seen the ripple if she had looked down, “[establishing] that a claim is barred under the open-and-obvious doctrine does not require proof that the individual plaintiff saw the defect. Rather, it requires proof that the defect was observable.” Czepak v. Heiges, 2011-Ohio-5523, 968 N.E.2d 1027, ¶ 22 (6th Dist.), citing Armstrong, 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, at ¶ 16. The fact that the ripples or bubbles were well known to everyone at the facility, including Sherrie, leads to the only reasonable conclusion that they were readily discoverable upon ordinary inspection. Furthermore, “a shopkeeper is under no duty to protect business invitees from dangers ‘which are known to such invitee or are so obvious and apparent to such invitee that [she] may reasonably be expected to discover them and protect [herself] against them.’” (Emphasis added.) Paschal, 18 Ohio St.3d at 203-204, 480 N.E.2d 474, 11. quoting Sidle, 13 Ohio St.2d 45, 233 N.E.2d 589, at paragraph one of the syllabus. Therefore, because the hazard was an open and obvious condition, appellee owed no duty to protect Sherrie from it.

Just one more observation – the Court states here that “[t]he fact that the ripples or bubbles were well known to everyone at the facility, including Sherrie, leads to the only reasonable conclusion that they were readily discoverable upon ordinary inspection,” despite concluding earlier in the opinion that the hazard at issue was just “the ‘ripple,’” as opposed to the general problem of ripples popping up.

This case demonstrates crucial questions that plaintiff attorneys must ask of potential clients prior to accepting representation in a slip-and-fall case: How exactly were you injured? Had you ever been there before? How many times? When did you first become aware of the hazard? What did you see before you fell? Where were you looking at the time you fell? Was your view of the hazard obstructed? Were you distracted for any reason? (“Attendant circumstances,” discuss in this blog post, sometimes shield a plaintiff from the open-and-obvious doctrine.)

 

Alex Durst is a Cincinnati personal injury attorney with The Durst Law FirmLicensed in Ohio, Alex has also practiced in Missouri, Florida, Indiana, California, Nevada, Massachusetts, and Kentucky. Alex can be reached at (513) 621-2500 or alex@durstlawfirm.com.