Flack v. Avita Health Sys. , 2022 Ohio 3517 ( 2022 )

[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, OPINION
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
Case No. 3-22-03
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
-2-
Case No. 3-22-03
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
-3-
Case No. 3-22-03
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).
-4-
Case No. 3-22-03
{¶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 son-
in-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.
-5-
Case No. 3-22-03
(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
-6-
Case No. 3-22-03
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-
-7-
Case No. 3-22-03
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. 05AP-
1324, 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.-8-
Case No. 3-22-03
{¶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.
-9-
Case No. 3-22-03
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
-10-
Case No. 3-22-03
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,
-11-
Case No. 3-22-03
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
-12-
Case No. 3-22-03
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
-13-
Case No. 3-22-03
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 open-
and-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
-14-
Case No. 3-22-03
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
-15-
Case No. 3-22-03
¶ 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
-16-
Case No. 3-22-03
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
-17-
Case No. 3-22-03
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
-18-