COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70403 AGNES ORENS : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION RICARDO'S RESTAURANT, ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION NOVEMBER 14, 1996 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 286359 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: JAMES L. DEESE, ESQ. BRIAN D. KERNS, ESQ. DEBRA J. DIXON, ESQ. Brian D. Kerns & Associates 700 West St. Clair Avenue 7029 Pearl Road Suite 216 Suite 310 Cleveland, Ohio 44113 Middleburg Hts., Ohio 44130 - 2 - JAMES M. PORTER, J., Plaintiff-appellant Agnes Orens appeals from summary judgment entered in favor of defendants-appellees Ricardo's Restaurant and its owner, Richard Guinta, arising out of her fall after dining at the restaurant. Plaintiff claims disputed issues of material fact precluded summary judgment for defendants. We find no error and affirm. Plaintiff, 81 years of age, asserts her claim arose out of her patronization of Ricardo's Restaurant on Fulton Road in Cleveland on December 8, 1994, with her son and his wife, Alan and Shirley Smith. The Smiths had been there before and customarily ate in an elevated gazebo area within the dining room. Plaintiff had never been there before. They entered the restaurant and plaintiff followed the Smiths to the elevated gazebo area (15 x 17 feet) where there were four tables surrounded by an ornamental railing. To reach the elevated area, they crossed an 8 inch step at a gap in the railing. The gazebo area was more secluded and dimly lit. Plaintiff simply followed the Smiths and did not pay particular attention to the layout of the restaurant or the location of the step-up. She was only alerted to its presence because she was following her son and his wife whom she observed step up in front of her. Plaintiff remained seated at the table all during dinner and did not get up until it was time to leave. Mrs. Smith apparently made two trips up and down the step during dinner. After dinner, - 3 - while plaintiff was still seated at the table, she had a brief conversation with some people at another table. Mr. Smith then went to the kitchen to talk with one of the employees and to pay the bill. Plaintiff and Mrs. Smith got up to leave, walking side- by-side or plaintiff slightly in front. According to plaintiff's deposition testimony: *** Shirley and I started to walk towards the exit. The next thing I know I was in the air, * * * Q. Do you know where you were looking in the instant before you fell? A. I usually just look straight ahead. Q. Okay. Do you know what caused you to fall? A. No. What could cause you to fall? I mean, I didn't realize the step was there. I was just walking, taking a normal step. *** I fell off of the step. I just took a normal step and that's when I flew. * * * Q. Do you remember at any point between the time you left your table and the time you fell did you look down at the floor to see where you were going? A. I didn't realize the step was there. I was just walking taking a normal step. *** I'll tell you, it was dark and the carpeting is all dark, so you know, looks just like one level, really. Q. Did you simply, ma'am, did you simply forget that you had crossed a step when you came in? * * * - 4 - A. I really can't -- I guess I'm just not too clear. After this happened, I forgot everything. Q. So you don't know whether you simply forgot, there was a step there or you just weren't looking down to see whether there was a step? A. I wasn't looking for a step. I really don't know what happened, what I was thinking. (Orens Depo. at 37, 43, 45, 48, 49). Plaintiff submitted expert testimony of Richard Kraly, an architect, by affidavit that stated that the subject step was in violation of the Ohio Basic Building Code and the level of floor illumination at the step location was below industry standards. Plaintiff herself indicated that it was too dark to see the step and the continuous dark carpeting made it appear as though the floor was level. Her son and daughter-in-law, both of whom as regular patrons have frequently traversed the step, both testified that, even with their prior knowledge and experience, they had difficulty perceiving the step. Plaintiff brought this negligence suit against Ricardo's Restaurant and its owner to recover for injuries she suffered as a result of a fall. Following discovery, defendants moved for summary judgment. Plaintiff filed her brief in opposition and a cross-motion for summary judgment on the negligence issue, accompanied by the affidavit of the building design expert, Richard Kraly. - 5 - On February 21, 1996, the trial court issued its Memorandum of Opinion and Order granting defendants' motion for summary judgment and overruling plaintiff's cross-motion. The court stated that: "Based upon plaintiff's knowledge of the step acquired by previously ascending it, she is unable to demonstrate the breach of any duty by defendants. *** This was a 'danger' against which plaintiff should have protected herself." Id. at 2-3. Plaintiff timely pursued her appeal herein. We will discuss the plaintiff's Assignments of Error I and II together as they relate to the same issues that bear on the resolution of the appeal. . I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT GRANTED DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT OVERRULED PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT. Under Civ. R. 56, summary judgment is proper when: (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 nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State, ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. It is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for - 6 - 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 nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59. In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Ohio Supreme Court modified the summary judgment standard as applied in Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108. Under the new standard, "*** the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact or a material element of the nonmoving party's claim." Dresher at 296. The nonmoving party has a reciprocal burden of specificity and cannot rest on mere allegations or denials in the pleadings. Id. at 293. The nonmoving party must set forth "specific facts" by the means listed in Civ. R. 56(C) showing a genuine issue for trial exists. Id. This Court reviews the lower court's granting of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711 ("We review the judgment independently and without deference to the trial court's determination"). An appellate court reviewing the grant of summary judgment must follow the standards set forth in Civ. R. 56(C). "The reviewing court evaluates the record *** in a light most favorable to the nonmoving party. *** [T]he motion must be overruled if reasonable minds could find for - 7 - the party opposing the motion." Saunders v. McFaul (1990), 71 Ohio App.3d 46, 50; Link v. Leadworks Corp. (1992), 79 Ohio App.3d 735, 741. It is elementary that to establish a cause of action in negligence, plaintiff must show: (1) a duty on the part of defendant to protect the plaintiff from injury; (2) a breach of that duty; and (3) an injury proximately resulting from the breach. Huston v. Konieczny (1990), 52 Ohio St.3d 215, 217; Jeffers v. Olexo (1989), 43 Ohio St.3d 140; Thomas v. Parma (1993), 88 Ohio App.3d 523, 527; Parsons v. Lawson Co. (1989), 57 Ohio App.3d 49, 50. Plaintiff was a business invitee on defendant's premises and defendant accordingly owed her a duty to exercise reasonable care in keeping the premises in a safe condition and warning the invitee of any latent or concealed perils of which defendant had knowledge. Perry v. Eastgreen Realty Company (1978), 53 Ohio St.2d 51, 52-53; Presley v. Norwood (1973), 36 Ohio St.2d 29, 31; Sweet v. Clare- Mar Corp., Inc. (1987), 38 Ohio App.3d 6. However, a property owner is under no duty to protect a business invitee from hazards which are so obvious and apparent that the invitee is reasonably expected to discover and protect against them herself. Sidle v. Humphrey (1968), 13 Ohio St.2d 45, paragraph one of syllabus; Paschal v. Rite Aid Pharmacy (1985), 18 Ohio St.3d 203, 203-204; Brinkman v. Ross (1993), 68 Ohio St. 3d 82, 84. - 8 - An unreasonably dangerous condition does not exist when people who are likely to encounter a condition may be expected to take good care of themselves without further precautions. Baldauf v. Kent State Univ. (1988), 49 Ohio App.3d 46, 48. One who enters a building by traversing a step, described as abnormally high, is charged with knowledge of the presence of that abnormality upon exiting. Raflo v. Losantville Country Club (1973), 34 Ohio St.2d 1. The difficulty with the plaintiff's argument is that she offered no evidence to show that defendant breached any duty owed to her, or that, if it did, that it was the proximate cause of the injury. The mere fact that plaintiff fell does not establish any negligence on the part of the defendant. Green v. Castronova (1966), 9 Ohio App.2d 156, 161; Kimbro v. Konni's Supermarket, Inc. (June 27, 1996), Cuyahoga App. No. 69666, unreported; Costidakis v. Park Corporation (Sept. 1, 1994), Cuyahoga App. No. 66167, unreported. It is incumbent upon a plaintiff to show that there was a dangerous or latent condition on the premises that was the cause of the fall. Paschal, supra. Minor or trivial imperfections on the property which are commonly encountered and to be expected as a matter of law do not form a basis of liability. Helms v. American Legion, Inc. (1966), 5 Ohio St.2d 60; Baldauf, supra. See, also, Jennings v. Ameritrust Company (Oct. 6, 1994), Cuyahoga App. No. 66867, unreported (the - 9 - fact a riser was nine inches high rather than four to seven inches high as required by the 1990 Basic Ohio Building Code, 817.6, alone did not create liability); Society National Bank v. Italian Made, Inc. (Aug. 18, 1994), Cuyahoga App. No. 66169, unreported (plaintiff on notice of step that separated two levels of restaurant). We find that this case is governed by the "open and obvious" doctrine which requires the injured party to take note of obvious conditions of the premises and excuses the defendant's duty toward the plaintiff. In the instant case, the plaintiff entered the restaurant and successfully negotiated the step in question when stepping up to the elevated area prior to dinner. Plaintiff testified that she is capable of climbing stairs on her own and does not require or allow anyone to assist her. That the area was dimly lit and the carpet a uniform color was clearly evident to all who passed through the area. When plaintiff was at dinner it was obvious from the elevated gazebo that plaintiff was dining on an elevation higher than the diners in the general area. It was indisputable that plaintiff would have to step down at some point when leaving this elevated area. The point of ingress and egress was the gap in the ornamental railing about the area. This gap itself marked the step down condition and warned users the elevation changed. Under these circumstances, it is incontrovertible that a plaintiff who was watching where she was - 10 - going would be aware of an open and obvious condition of the premises such as the step-down in question. Wicichowski v. Gladiux V. Enterprises, Inc. (1988), 54 Ohio App.3d 177, 179; McNeely v. Brown Derby Restaurant (May 20, 1993), Cuyahoga App. No. 64647, unreported. The plaintiff's inadvertence or explanation that she was not looking for a step does not change the obligation to look out for her own well-being. As this Court recently stated in Fortesque v. Rini Rego (April 25, 1996), Cuyahoga App. No. 69293, unreported at 7-8: In Ohio, it is generally well-established that a premise owner can not be liable to an invitee who fails to avoid a known peril simply because he "did not think" or "forgot." Jeswald v. Hutt (1968), 15 Ohio St.2d 224. The Ohio Supreme Court in Raflo v. Losantville Country Club (1973), 34 Ohio St.2d 1, rejected an argument made by plaintiff that a step was made dangerous more so when leaving the building than when entering it. The court stated, in relevant part: This attempt to designate a defect so insubstantial for the purpose of notice upon entering but substantial for the purpose of imposing liability for a fall upon exiting shows an ambivalence with which we cannot concur. Injuries occasioned by insubstantial defects should not be actionable unless circumstances render them "unnecessarily dangerous." Raflo, supra, at 4, quoting from the dissent in Smith v. United Properties (1965), 2 Ohio St.2d 310, 316, 209 N.E.2d 142, aproved in Helms v. American Legion (1966), 5 Ohio St.2d 60, 213 N.E.2d 734. Plaintiff vigorously argues that the "open and obvious" doctrine is no longer the law of Ohio and must give way to the - 11 - comparative negligence standards of R.C. 2315.19. We disagree for the reasons recently stated in Anderson v. Ruoff (1995), 100 Ohio App.3d 601, 604: In this appeal, appellant challenges the viability of the "open and obvious" doctrine given Ohio's adoption of comparative negligence in R.C. 2315.19. Specifically, appellant claims that the "open and obvious" rule cannot bar liability because it is incompatible with comparative negligence principles. We disagree and find the Ohio Supreme Court decision in Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d 642, 597 N.E.2d 504, dispositive. Contrary to appellant's contentions, the "open and obvious" doctrine is still good law. In Simmers, supra, the Ohio Supreme Court merely refused to extend the doctrine which relieves property owners from liability for harm resulting from open and obvious hazards to independent contractors who have no property interest in the premises. The Supreme Court clearly stated that its decision did "not put at issue the 'open and obvious' doctrine as applied to owners and occupiers of land." Id. at 644, 597 N.E.2d at 506, fn. 2. Under the "open and obvious" doctrine, an owner or occupier of 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, 42 O.O.2d 96, 233 N.E.2d 589, paragraph one of the syllabus. The rationale behind the doctrine is that the open and obvious nature of the hazard itself serves as a warning, and that the owner or occupier may reasonably expect that persons entering the premises will discover those dangers and take appropriate measures to protect themselves. Simmers, supra, 64 Ohio St.3d at 644, 597 N.E.2d 506. The question of comparative negligence is never reached if the court determines that a landowner owes no duty. The open and obvious doctrine, therefore, is not inconsistent with the comparative negligence principles set forth - 12 - in R.C. 2315.19. Rather, the open and obvious doctrine is determinative of the threshold issue, the landowner's duty. In the absence of duty, there is no negligence to compare. Thus, "courts must carefully distinguish between a defendant's duty of care and plaintiff's contributory negligence." Simmers, supra, at 644, 597 N.E.2d at 506, fn. 2. Nor is the issue further advanced by plaintiff's argument, based on her expert's conclusion, that the area should have been ramped or equipped with handrails on both sides; the height of the steps should not exceed 7 inches rather than 8 inches; and a slip resistent edge should be applied to the step to show a change in elevation. The resolution of the question does not turn on whether the step could have been made perfect or foolproof. The issue is whether the conditions that did exist were open and obvious to any person exercising reasonable care and watching where she was going. Centers v. Leisure Internatl., Inc. (1995), 105 Ohio App.3d 582, 584. It was also evident that plaintiff has failed to offer any evidence as to what actually caused the plaintiff's fall. When questioned about what caused her to fall, the plaintiff responded "she didn't realize the step was there" and "she was just walking taking a normal step *** I wasn't looking for a step. I really don't know what happened, what I was thinking." There was no evidence from witnesses who saw plaintiff fall. Her daughter-in- law said she was looking back over her shoulder when it happened and did not know whether plaintiff had taken a step off the elevated area or stepped down to the lower level before she fell. - 13 - This court treated similar evidence as too speculative and upheld summary judgment for defendant in the Jennings v. Ameritrust case, supra at 3-4. Furthermore, we also find that plaintiff did not establish that any condition of the property was the proximate cause of her fall. She testified that: "When I put my right foot down on the sidewalk all I know is I went over. Everything went black." Thus, plaintiff did not testify to what caused her fall. Speculation cannot take the place of evidence. As recently stated by this Court in Guyton v. DeBartolo, Inc. (Nov. 4, 1993), Cuyahoga App. no. 65268, unreported at 2-3: In her deposition testimony, Mrs. Guyton clearly stated she did not know what caused her to fall but merely "assumed" she slipped on water accumulated on the floor. Speculation or conjecture on a plaintiff's part as to the culpable party who caused her fall and what caused her fall is not sufficient, as a matter of law, since the issue of proximate cause is not open to speculation and plaintiff can point to no wrong or negligent act committed by defendant. Strother v. Hutchinson (1981), 67 Ohio St.2d 282; Townsley v. Cincinnati Gardens, Inc. (1974), 39 Ohio App.2d 5; Castro v. Kathy Lee's Kitchen (Jan. 2, 1992), Cuyahoga App. No. 59338, unreported; Allen v. CGS Investments, Inc. (June 11, 1992), Cuyahoga App. No. 62947, unreported. See, also, Stamper v. Middleton Hosp. Assn. (1989), 65 Ohio App.3d 65, 69. We accordingly find that plaintiff failed to offer any evidence to support a claim that defendant breached a duty owed to plaintiff or that such breach, if any, was the proximate cause of her fall and injuries. See, additionally, Juresa v. Radan (May 5, 1994), Cuyahoga App. No. 64951, unreported (speculation that presence of handrail may have - 14 - prevented fall insufficient where plaintiff could not recall how she fell). For the reasons hereinbefore stated, we find the trial court correctly entered summary judgment for defendants. Assignments of Error I and II are overruled. Judgment affirmed. - 15 - It is ordered that appellees recover of appellant 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 Court of Common Pleas 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. BLACKMON, P.J., and TIMOTHY E. McMONAGLE, J., CONCUR. JAMES M. PORTER JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .