2022-03

Naso v. Victorian Tudor Inn, L.L.C. , 2022 Ohio 1065 ( 2022 )

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[Cite as Naso v. Victorian Tudor Inn, L.L.C.,

2022-Ohio-1065

.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
TRUDIE NASO, :
Plaintiff-Appellant, :
No. 110652
v. :
VICTORIAN TUDOR INN, L.L.C., :
ET AL.,
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 31, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-20-937568
Appearances:
Paulozzi Co. LPA, Todd O. Rosenberg, and Amy L.
Higgins, for appellant.
Ritzler, Coughlin & Paglia, Ltd., and Thomas M. Coughlin,
Jr., for appellees.
KATHLEEN ANN KEOUGH, J.:
Plaintiff-appellant, Trudie Naso (“Naso”), appeals from the trial
court’s judgment granting the motion for summary judgment of defendants-
appellees, The Victorian Tudor Inn, L.L.C. (the “Inn”), and Richard Stegman
(“Stegman”) (collectively “appellees”) in her action for personal injuries resulting
from her unfortunate fall down a flight of stairs at the Inn. Finding no merit to the
appeal, we affirm.
I. Background
Stegman is the owner of the Inn, which is located in Bellevue, Ohio.
He is a certified antiques appraiser and takes pride in displaying antiques
throughout the Inn.
Naso and her daughter checked in at the Inn around noon on May
28, 2018. Stegman gave Naso and her daughter a tour of their room, the kitchen
area of the Inn, and the porch. When Naso’s daughter went back to their room to
retrieve her credit card, Stegman suggested to Naso that she make herself
comfortable and take a look around. Naso, who was wearing glasses and flat shoes,
did so.
Naso testified in her deposition that she walked around the living
room of the Inn for three to five minutes as she looked at the décor on the walls and
counters. She said she “didn’t know where to look first because [she] was
overwhelmed and distracted by all the things he had.” (Tr. 15.) She said she then
“saw this wall, there were like cups and other things, and I walked over to where the
cups were. The cups and saucer.”

Id.

 Continuing, Naso testified:
And I was looking at the cup and saucer and I wanted to look at
everything on that shelf, but again [I was] confused and overwhelmed
and distracted by so, so much. So I just concentrated on that little cup
that I was looking at. I collect cups and saucers, that’s why I was drawn
there.
And then I thought ─ I looked at that cup, and then I was ─ I wanted to
see what else was on that shelf, and I just sideways thinking I’m in a
hallway, I walked, and that’s when I fell.
Id. at 15-16.
Naso filed suit against the Inn and Stegman for negligence, alleging
they were negligent in designing and maintaining the premises and in failing to warn
her about the stairs. The trial court subsequently granted appellees’ motion for
summary judgment; Naso now appeals from this judgment.
II. Law and Analysis
We review summary judgment rulings de novo, applying the same
standard as the trial court. Grafton v. Ohio Edison Co.,

77 Ohio St.3d 102

, 105,

671 N.E.2d 241

 (1996). Under Civ.R. 56(C), summary judgment is appropriate where
(1) there is no genuine issue of material fact; (2) the moving party 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 come to only a conclusion that is
adverse to the nonmoving party. Temple v. Wean United, Inc.,

50 Ohio St.2d 317

,
327,

364 N.E.2d 267

 (1977).
The party seeking summary judgment bears the burden of
demonstrating that no issues of material fact exist for trial. Celotex Corp. v. Catrett,

477 U.S. 317

, 330,

106 S.Ct. 2548

91 L.Ed.2d 265

 (1986); Mitseff v. Wheeler,

38 Ohio St.3d 112

, 115,

526 N.E.2d 798

 (1988).          The burden then shifts to the
nonmoving party to provide evidence showing a genuine issue of material fact does
exist. Dresher v. Burt,

75 Ohio St.3d 280

, 293,

662 N.E.2d 264

 (1996). The
nonmoving party may not rely on its pleadings, but must produce some evidence in
support of its claim.

Id.

To establish actionable negligence, a plaintiff must show the existence
of a duty, a breach of that duty, and an injury proximately caused by the breach.
Texler v. D.O. Summers Cleaners & Shirt Laundry Co.,

81 Ohio St.3d 677

, 680,

693 N.E.2d 271

 (1998). “‘If there is no duty, then no legal liability can arise on account
of negligence. Where there is no obligation of care or caution, there can be no
actionable negligence.’” Jeffers v. Olexo,

43 Ohio St.3d 140

, 142,

539 N.E.2d 614

(1989), quoting 70 Ohio Jurisprudence 3d, Negligence, Section 13, at 53-54 (1986).
The status of a person who enters another’s property defines the
scope of the legal duty owed to that person. Gladon v. Greater Cleveland Regional
Transit Auth.,

75 Ohio St.3d 312

, 315,

662 N.E.2d 287

 (1996). It is undisputed that
Naso was a business invitee of appellees.1 Property owners owe invitees a duty of
ordinary care in maintaining the premises in a reasonably safe condition, including
warning them of latent or hidden dangers so as to avoid unnecessarily and
unreasonably exposing them to risk of harm. Perry v. Eastgreen Realty Co.,

53 Ohio St.2d 51

, 52,

372 N.E.2d 355

 (1978).
Nevertheless, it is well settled that a property owner is under no duty
to protect a business invitee against dangers that are known to the invitee or are so
open and obvious to the invitee that she may reasonably be expected discover them
1 A business invitee is one who is upon the premises of another by invitation,
express or implied, for some purpose that is beneficial to the owner. Lawrence v. Moore,
8th Dist. Cuyahoga No. 60505,

1991 Ohio App. LEXIS 2766

, 3 (June 13, 1991).
and protect herself against them. Sidle v. Humphrey,

13 Ohio St.2d 45

233 N.E.2d 589

 (1968), paragraph one of the syllabus. The rationale underlying the doctrine is
that an open-and-obvious danger serves as its own warning. Early v. Damon’s
Restaurant, 10th Dist. Franklin No. 05AP-1342,

2006-Ohio-3311

, ¶ 7.
The open-and-obvious doctrine focuses on the nature of the
dangerous condition itself, rather than the plaintiff’s conduct in encountering it.
Armstrong v. Best Buy Co., Inc.,

99 Ohio St.3d 79

2003-Ohio-2573

788 N.E.2d 1088

, ¶ 13. “[T]he question is whether, under an objective standard, the danger
would have been discernible to a reasonable person.” Smith v. Wal-Mart Stores,
Inc., 4th Dist. Ross No. 18CS3661,

2019-Ohio-2425

, ¶ 14, citing Lang v. Holly Hill
Motel, Inc., 4th Dist. Jackson No. 06CA18,

2007-Ohio-3898

, ¶ 25.
Open-and-obvious dangers are those that are not hidden, concealed
from view, or undiscoverable upon ordinary inspection. Lydic v. Lowe’s Cos., Inc.,
10th Dist. Franklin No. 01AP-1432,

2002-Ohio-5001

, ¶ 10. “A person 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.”
Early at ¶ 8, citing Lydic at

id.

 Even in cases where the plaintiff did not actually
notice the condition until after she fell, courts have found no duty where the plaintiff
could have seen the condition had she looked. Early at id.; Haymond v. BP Am.,
8th Dist. Cuyahoga No. 86733,

2006-Ohio-2732

, ¶ 16 (even where invitee does not
see the danger until after she falls, there is no duty if the invitee could have seen the
danger if she had looked).
Whether a duty exists is a question of law for the court to determine.
Mussivand v. David,

45 Ohio St.3d 314

, 318,

544 N.E.2d 265

 (1989). The issue of
whether a hazardous condition is open and obvious may present a genuine issue of
fact for a jury to decide. Klauss v. Marc Glassman, Inc., 8th Dist. Cuyahoga No.
84799,

2005-Ohio-1306

, ¶ 17. Where only one conclusion can be drawn from the
established facts, the issue of whether a risk was open and obvious may be decided
by the court as a matter of law.

Id.

 However, where reasonable minds could differ
with respect to whether a danger is open and obvious, the obviousness of the risk is
an issue for the jury to determine.

Id.,

 citing Carpenter v. Marc Glassman, Inc.,

124 Ohio App.3d 236

, 240,

705 N.E.2d 1281

 (8th Dist.1997).
The trial court granted summary judgment in favor of appellees on
the basis that the stairway was an open-and-obvious danger as a matter of law and,
therefore, appellees had no duty to Naso.
In her first assignment of error, Naso contends there is a genuine
issue of material fact regarding the open-and-obvious nature of the stairs because
(1) the stairs were partially hidden and thus cannot be considered open and obvious;
(2) she had no reasonable opportunity to see the stairs before she fell; (3) she had
no expectation of encountering stairs where she fell; and (4) she had no duty to “look
down at all times” in order to see the stairs. In her second assignment of error, she
contends there were attendant circumstances that distracted her attention before
she fell. Accordingly, she contends the trial court erred in granting summary
judgment to appellees. We disagree.
Pictures of the living room at the Inn attached to Naso’s brief in
opposition to appellees’ motion for summary judgment demonstrate that the stairs
are located at the back of the living room and surrounded on two sides by a half-
wall. There is a landing at the top of the stairs. Although Naso contends that the
stairwell was partially hidden by the half-wall, the pictures demonstrate that rather
than hiding the staircase, the half-wall both announces the presence of the stairs and
acts as a guardrail. To descend the stairs, which lead to the basement, one would
have to walk around the low half-wall and the post at the end of the half-wall, and
then walk several feet on the stairway landing to reach the first stair step.
Hill v. Mullins,

88 N.E.3d 575

2017-Ohio-1302

 (2d Dist.), which
Naso cites as support for her contention that “partially hidden staircases are not
open and obvious,” is not on point. In Hill, the plaintiff fell into an unguarded hole
above the stairs to the basement as she walked in a home that was being remodeled.
The appellate court reversed the trial court’s grant of summary judgment to the
homeowner because it found that the plaintiff and the homeowner presented
conflicting deposition testimony regarding the direction from which the plaintiff
approached the hole, which affected whether she could have seen it. Id. at 28. The
court found that if, as the plaintiff testified, she approached the hole from a direction
in which her view of the hole would have been obscured by a wall “virtually until she
stepped into it,” summary judgment was not warranted based upon a finding that
the hole was open and obvious. Id. Thus, Hill stands for the proposition that
summary judgment should not be granted where there are factual disputes that
affect the open-and-obvious determination.
The other cases that Naso cites to support her contention that
staircases surrounded by a half-wall are not open and obvious are similarly not on
point because none make any mention of a half-wall surrounding a staircase.
Moreover, all of the cases involve plaintiffs who fell down staircases because the
lighting was dim or entirely dark. That is not the situation here. Although the
parties dispute whether the lights were on in the living room when Naso fell, Naso
acknowledged that the light coming through the windows was bright enough for her
to see the antiques in the room without issue and, thus, presumably the stairs. (Tr.
16-17.)
Furthermore, Naso testified that “of course” she could have seen the
stairs if she had looked. (Tr. 24.) As this court has observed, “[t]he benchmark for
the court is not whether the person saw the object or danger, but whether the object
or danger was observable.” Hopkins v. Greater Cleveland Regional Transit Auth.,

2019-Ohio-2440

, 139 N.E.23d 491, ¶ 16 (8th Dist.). Naso’s admission demonstrates
that the stairs were open and obvious and discoverable by ordinary inspection.
Indeed, the undisputed evidence established that of the approximately 20,000
guests who have stayed at the Inn since Stegman purchased it in 2008, no one other
than Naso has fallen down the stairs.
Naso’s assertion that she did not have a reasonable opportunity to
observe the stairs because she “fell down the stairs immediately after turning the
corner” contradicts her deposition testimony, in which she testified that she spent
three to five minutes in the living room prior to her fall, and that she stood at the top
of the stairs while she picked up, examined, and set down a teacup after turning the
corner of the half-wall. (Tr. 18, 48-49.) The cases cited by Naso to support her
argument that she did not have a reasonable opportunity to observe the stairs all
involve situations where a person encountered a hazard immediately upon opening
a door, turning a corner, or entering a building. That is not what happened here, as
demonstrated by Naso’s deposition testimony.
Similarly, Naso’s assertion that the stairs were not open and obvious
because she “had no expectation of steps around the corner” of the wall is also
without merit. In Hopkins, this court acknowledged that in determining whether a
hazard is open and obvious, some courts may consider whether the plaintiff had a
sufficient advance opportunity to perceive the hazard before encountering it and
whether a reasonable person would have some expectation of encountering such a
hazard. Hopkins,

2019-Ohio-2440

, 139 N.E.23d 491, at ¶ 21. Nevertheless, the
Hopkins Court made clear that the main inquiry is whether the hazard was
observable to a reasonable person.
The question of whether a danger is open and obvious is an objective
one. Goode v. Mt. Gillion Baptist Church, 8th Dist. Cuyahoga No.
87876,

2006-Ohio-6936

, ¶ 25. The fact that a plaintiff was unaware of
the danger is not dispositive of the issue.

Id.

 Instead, the trial 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. Cintron-Colon v. Save-A-Lot, 8th Dist. Cuyahoga
No. 100971,

2014-Ohio-4574

, ¶ 9. If so, even if the individual does not
actually notice the open-and-obvious condition until after the fall, no
duty exists if the individual could have observed the condition had they
only looked.
Id. at ¶ 46.
Naso testified that although she was not aware of the stairs before she
fell, the stairs were observable and that she could have seen them if she had only
been looking. Naso’s testimony demonstrates, as the trial court found, that “given
the circumstances in this case, reasonable minds could only conclude that an invitee
exercising ordinary care would have seen and been able to guard herself against the
hazard presented by the stairwell.”
Finally, Naso’s contention that she does not have a duty “to look down
at all times” in order to see a hazard is irrelevant to a determination of whether the
stairs at the Inn were open and obvious. The key consideration is not whether Naso
saw the stairs before she fell but whether the stairs were observable. Hopkins, 2019-
Ohio-2440, 139 N.E.23d 491, at ¶ 16. As discussed above, Naso admitted that the
stairs were observable, an admission that demonstrates the stairs were open and
obvious.
Nevertheless, Naso contends that attendant circumstances —
specifically, the “overwhelming” number of antiques and pictures throughout the
room and the many items displayed on a cabinet at the top of the steps — distracted
her attention from discovering the steps. The presence of attendant circumstances
may create an issue of fact as to whether a danger is open and obvious, even where
a plaintiff admits she never looked down. Humble v. Boneyard Westlake, L.L.C.,
8th Dist. Cuyahoga No. 104348,

2016-Ohio-8149

, ¶ 8; Cooper v. Meijer Stores, L.P.,
10th Dist. Franklin No. 07 AP-201,

2007-Ohio-6086

, ¶ 14.
“Although there is no precise definition of ‘attendant circumstances,’
they generally include any distractions that would come to the attention of an invitee
in the same circumstance and reduce the degree of care an ordinary person would
exercise at the time.” Carter v. Miles Supermarket, 8th Dist. Cuyahoga No. 95024,

2010-Ohio-6365

, ¶ 18, citing McGuire v. Sears, Roebuck & Co.,

118 Ohio App.3d 494

, 498,

693 N.E.2d 807

 (1st Dist.1996).
For attendant circumstances to negate the application of the open-
and-obvious doctrine, “they must not only be present, but must create ‘a greater
than normal, and hence substantial, risk of injury.’” Hill,