COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69508 : CHARLES ALLEN, ET AL. : : JOURNAL ENTRY Plaintiffs-Appellants : : and -vs- : : OPINION : PELECH, INC. : : Defendant-Appellee : : DATE OF ANNOUNCEMENT JULY 3, 1996 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 267500 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiffs-Appellants: For Defendant-Appellee: WILLIAM M. GOLDSTEIN, ESQ. THOMAS E. DOVER, ESQ. 1600 Rockefeller Building GARY S. SINGLETARY, ESQ. 614 Superior Avenue, N.W. Gallagher,Sharp,Fulton & Norman Cleveland, Ohio 44113 7th Floor Bulkley Building 1501 Euclid Avenue Cleveland, Ohio 44115 and THOMAS W. WRIGHT, ESQ. Davis & Young, 1700 Midland Bldg., 101 Prospect Ave., W. Cleveland, Ohio 44115 -2- PATRICIA ANN BLACKMON, J.: Plaintiffs-appellants, Charles and Jacqueline Allen, appeal from the summary judgment in favor of Pelech, Inc., defendant- appellee and assign the following error for our review: I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT- APPELLEE'S MOTION FOR SUMMARY JUDGMENT WHEN CLEAR ISSUES OF MATERIAL FACT EXIST AS TO THE DEFENDANT'S NEGLIGENCE. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. Pelech owned the Williamsburg Square apartment complex. Pelech hired Village Management, Inc. to manage the property. In June of 1990, Charles Allen began his employment with Village Management as the manager of the apartments at 23464 and 23468 Lorain Avenue in North Olmsted, Ohio and lived in the apartment complex. His duties included maintenance of the apartments, and although it was not his responsibility, he was aware of complaints to Village Management about the condition of the parking lot. On the afternoon of April 3, 1992, Allen left his apartment and walked across Lorain Avenue to go to a convenience store. Upon his return, he walked on a sidewalk of the apartment complex, stepped down onto the parking lot into a hole causing him to fall to the ground. The hole was approximately two inches deep and eight inches wide. At the time he fell, he was carrying a small bag of groceries and was looking at and talking to a neighbor. -3- Charles Allen and his wife, Jacqueline Allen, filed an action against Pelech and alleged Pelech was negligent in its repair of the parking lot because it knew or should have known the dangerous condition the hole presented. Charles Allen sought compensation for his injuries and Jacqueline Allen sought damages for loss of consortium. Pelech moved for summary judgment, the motion was granted, and this appeal followed. In his sole assignment of error, the Allens argue Pelech breached its duty of care and Charles Allen was not contributorily negligent; therefore, summary judgment should have been denied. The standard of review for an appeal from summary judgment is set forth in Civ.R. 56, and we evaluate the record according to Civ.R. 56. Civ.R. 56 specifically provides before summary judgment may be granted it must be determined that: "(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party 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 such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Moreover, it is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. Doubts must be resolved in favor of the nonmovant. Murphy v. -4- Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59. Under Civ.R. 56(E) "a nonmovant may not rest upon the mere allegations or denials of his pleadings but must set forth specific facts showing there is a genuine issue for trial." Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424. The elements of an action for negligence are the existence of a duty, a breach of the duty, and an injury resulting proximately therefrom. E.g. Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142. [It is a] well-established rule that the possessor of premises owes a duty to an invitee to exercise ordinary or reasonable care for his or her safety and protection. This duty includes maintaining the premises in a reasonably safe condition and warning an invitee of latent or concealed defects of which the possessor has or should have knowledge. Baldauf v. Kent State Univ. (1988), 49 Ohio App.3d 46 at 47-48 (held that defective nature of steps did not rise to the level of unreasonably dangerous). However, if the danger is open and obvious, then the property owner has no duty. 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 owes no duty to warn invitees entering the property of open and obvious dangers on the property. Sidle v. Humphrey (1968), 13 Ohio St.2d 45 at paragraph one of the syllabus; Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203. The rationale behind the doctrine 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. Sidle, supra. -5- Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d 642 at 644. See Society National Bank v. Italian Made, Inc. (Aug. 18, 1994), Cuyahoga App.No. 66169, unreported. In this case, Charles Allen argues Pelech knew or should have known of the dangerous condition and remedied the problem. However, the record reveals Allen, not Pelech should have known of the danger. Pelech did not manage the property; Village Management, Allen's employer, managed the property. Allen, although not responsible for maintenance of the parking lot, was aware his boss had received complaints about the condition of the parking lot. Thus, he had reason to know such a danger might exist. Nonetheless, the hole in the parking lot was eight inches in diameter and was clearly visible as a dark spot in the middle of a yellow parking lane marker on the asphalt. Allen encountered the hole as he stepped down from the sidewalk onto an asphalt parking lot. He admitted, had he been watching his step instead of looking at and talking to his neighbor, he would have seen the hole in the parking lot. Because the hole was large enough to be visible and was partially outlined by the yellow parking lane marker, and because Allen admitted he would have seen it, we find the hole was an open and obvious danger. Thus, Pelech did not have a duty to warn Charles Allen of a danger he could have discovered. See Simmers at 644, supra. Because Pelech did not have a duty of care to Allen, the issue of contributory negligence is moot. -6- Judgment affirmed. It is ordered that Appellee recover of Appellants its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. KARPINSKI, J., and PATTON, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- .