COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70511 LEO BAITH : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION CWP LIMITED PARTNERSHIP, ETC. : et al. : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 12, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-287610 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: LEON M. PLEVIN JOHN SCHLOSS Nurenberg, Plevin, Heller & McCarthy Co., L.P.A. 1370 Ontario - First Floor Cleveland, Ohio 44113-1792 For Defendant-Appellee THOMAS J. DOWNS CWP Limited Partnership Lakeside Place - Suite 410 by Industo, Inc.: 323 Lakeside Avenue West Cleveland, Ohio 44113 For Defendant-Appellee MARIO GAITANOS Alside Supply Center: 437 Market Avenue, North Canton, Ohio 44702-1543 - 2 - O'DONNELL, J.: Leo Baith appeals from an entry of the common pleas court granting summary judgment in favor of both CWP Limited Partnership by Industo, Inc., owner of the property located at 4650 West 160th Street in Cleveland, Ohio, and its lessee, Associated Building Supplies, Inc., a.k.a. Alside Supply Centers, arising out of a claim for injuries, including a non-displaced fractured right patella, which he sustained when he fell from one of appellees' loading docks which at the time was not protected by a guard. On July 1, 1994, seventy-two-year-old Leo Baith, a contractor, purchased siding from Alside and began to load it into his van which he had parked at a ramped loading dock on appellees' premises. Because some of the siding extended beyond the rear doors of his van, Baith tied a rope around the back of the van to secure the load. While doing so, however, the rope slipped through his hands and he fell about three feet into an adjacent loading dock which was not ramped and fractured his right patella in the fall. On April 10, 1995, Baith sued CWP Limited Partnership as owner of the premises and Alside as its lessee alleging negligence in failing to guard the perimeter of the loading dock. Each moved for summary judgment alleging that - 3 - an owner or occupier of land owes no duty to warn invitees of open and obvious dangers existing on the property. In his brief in opposition, Baith argued the loading dock did not meet existing building codes which require a guard for a 30" change-in-grade, and that Alside failed to comply with its contractual leasehold obligation to keep the premises in safe condition and to conform with the building code. The trial court granted both motions for summary judgment and in its order noted that the report submitted by appellant's expert raised, "an issue of fact as to the existence of a hazard in the layout of the loading dock." The court noting that, "the plaintiff was fully aware of the fact that there were no guardrails at the defendant's [sic] loading dock" concluded, "if the absence of guardrail did constitute a hazard, such hazard was open and obvious so as to absolve the owner and the occupier of the property of liability to a business invitee." (Citations omitted.) Baith now appeals and raises one assignment of error for our consideration: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANTS-APPELLEES INSOFAR AS THE "OPEN AND OBVIOUS DOCTRINE" WAS IMPROPERLY APPLIED TO THESE FACTUAL CIRCUMSTANCES. The appellant argues the court erred in granting summary judgment in this case because appellees are not entitled to judgment as a matter of law. Appellant maintains that the court erred when it charged the appellant with knowledge that - 4 - conditions at the loading dock constituted a foreseeable hazard as a matter of law. The error in this reasoning, appellant argues, is that knowledge of the hazard could only be charged to appellant as a matter of law if that knowledge was essential to the successful use of the loading dock. Appellant also argues appellees failed to comply with the Ohio Basic Building Code which requires installation of guards on open-sided walking surfaces more than 30 inches above the grade below. Appellees urge that the court correctly granted summary judgment not only because the hazard at the loading area was open and obvious but also because the OBBC provision cited by Baith does not apply to the subject premises. The issue, then, presented for our consideration is whether the trial court properly granted appellees' motions for summary judgment in this case. Civ.R. 56(C) provides in relevant part: Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. *** A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and the conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. - 5 - 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 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. In this case, appellant's status as an invitee is undisputed. Given that relationship, appellees' duty is to exercise ordinary care for his protection, including a duty to warn of dangerous conditions known by the owner or occupier where that knowledge is superior to that of appellant. See Jackson v. Kings Island (1979), 58 Ohio St.2d 357. This is so, because an owner need only warn or protect an invitee from conditions known to the owner which are unknown to the invitee. See Sidle v. Humphrey (1968), 13 Ohio St.2d 45, where the court stated in paragraph one of its syllabus: 1. An occupier of premises is under no duty to protect a business invitee against dangers which are known to such invitee or are so obvious and apparent to such invitee that he may reasonably be expected to discover them and protect himself against them. - 6 - Further, in considering open and obvious dangers on property created by independent contracts, the court reiterated its position in Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d 642, at 644: The rule relieving a defendant from liability for harm resulting from "open and obvious" hazards is a legal doctrine that has developed in suits against property owners by a person injured when he comes on the property. 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. Sidle v. Humphrey (1968), 13 Ohio St.2d 45, 42 O.O.2d 96, 233 N.E.2d 589, at paragraph one of the syllabus; Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203, 18 OBR 267, 480 N.E.2d 474. 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. We are further aware of appellant's argument that knowledge of the danger cannot be imputed solely on the basis of prior usage. In Shaw v. Central Oil Asphalt Corp. (1981), 5 Ohio App.3d 42, the headnote states: Where the plaintiff injures himself while using a defective staircase which he had used without mishap in the past, such prior usage alone is not sufficient to charge the plaintiff with knowledge of the defective condition and thus support a summary judgment against the plaintiff on the ground of contributory negligence unless knowledge of the defective condition must have been essential to the prior usage of the staircase. Appellant also urges that appellees breached a duty to install a guard at the loading dock as required by the OBBC and - 7 - contracted for in the lease between CWP and Alside. However, at oral argument, appellant's counsel all but conceded that the 1992 OBBC guard requirement exempted preexisting structures from automatic compliance. In conformity with the law as set forth in Sidle and Simmers, supra, we have concluded that the open and obvious nature of the change in grade at the premises removes the appellees' duty to warn of such danger, and no duty arises from failure to comply with the OBBC since those provisions do not apply to this preexisting structure. Hence, appellant has failed to prove a duty on the part of appellees in this case and, therefore, the trial court properly entered summary judgment for appellees. Judgment affirmed. - 8 - It is ordered that appellee(s) recover of appellant(s) 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. MATIA, P,J., and McMONAGLE, J., CONCUR JUDGE TERRENCE O'DONNELL 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 .