COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70963 BERNICE SIEGAL : : : JOURNAL ENTRY PLAINTIFF-APPELLANT : : AND v. : : OPINION MAGIC CARPET & UPHOLSTERY : : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: JULY 17, 1977 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-292450. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Marshall I. Nurenberg, Esq. Sandra J. Rosenthal, Esq. Nurenberg, Plevin, Heller & McCarthy 1370 Ontario Street, 1st Floor Cleveland, OH 44113-1792 For Defendant-Appellee: Gregory H. Collins, Esq. Davis & Young 101 Prospect Avenue W. Suite 1700 Cleveland, OH 44115 DAVID T. MATIA, P.J.: Bernice M. Siegal, plaintiff-appellant, appeals the granting of summary judgment by the Cuyahoga County Court of Common Pleas in -2- favor of Magic Carpet & Upholstery, defendant-appellee. Plaintiff- appellant raises one assignment of error. For the following reasons, we reverse the decision of the trial court and remand this case back for further proceedings. I. STATEMENT OF FACTS Bernice M. Siegal, plaintiff-appellant, noticed water stains on the carpet of her apartment after the superintendent performed some work in her bathroom. After plaintiff-appellant notified the building owner of the stains, arrangements were made to have the carpet cleaned. On December 21, 1994, a representative of Magic Carpet & Upholstery, defendant-appellee, called and arranged to send a cleaning crew over to her apartment. A cleaning crew arrived approximately 15-20 minutes later. Plaintiff-appellant observed the two carpet cleaners begin cleaning the vestibule and continue into the living and dining rooms. The cleaners used a corrugated vacuum hose to clean the carpeting that was approximately five to six inches in diameter. As the apartment was small in size, plaintiff-appellant attempted to stay out of the cleaners way by staying in a different room from the one they were cleaning. When the carpet cleaners began working in her bedroom, plaintiff-appellant walked towards the kitchen to get a drink of water. As she passed through the dining room, plaintiff-appellant fell over the cleaning hose. Plaintiff- appellant did not know if the hose was attached to anything or if the hose was just laying there. -3- Plaintiff-appellant sustained severe injuries in the fall. On July 18, 1995, plaintiff-appellant filed a complaint arguing defendant-appellee was negligent in leaving the hose in the dinette and failing to block off or notify her of the dangerous condition they created. On May 1, 1996, defendant-appellee filed a motion for summary judgment arguing it owed no duty to warn plaintiff- appellant of open and obvious hazards. On June 24, 1996, the trial court granted defendant-appellee's motion. Plaintiff-appellant timely files this appeal. II. ASSIGNMENT OF ERROR Bernice M. Siegal, plaintiff-appellant, states as her sole assignment of error: I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN DEFENDANT'S FAVOR WHEN DEFENDANT OWED PLAINTIFF A DUTY OF ORDINARY CARE AS A MATTER OF LAW, AND THERE WERE GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER THAT DUTY WAS BREACHED. -4- A. ISSUE RAISED: WHETHER THE TRIAL COURT PROPERLY GRANTED DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT. Plaintiff-appellant argues the trial court erred when it granted defendant-appellee's motion for summary judgment. Initially, plaintiff-appellant argues the open and obvious doctrine is a principle of premise liability inapplicable to this case as defendant-appellee was an independent contractor. Plaintiff-appellant then argues defendant-appellee created a hazard by leaving its cleaning hose unattended in the dinette while they were working in the bedroom. Moreover, plaintiff-appellee argues it was reasonably foreseeable that she would walk through the area in which it was lying and fail to see the hose as it was approximately the same color as the carpeting. Defendant-appellant therefore had a duty to use ordinary care as to what it did with the cleaning hose. Plaintiff-appellant argues since the issue of whether or not defendant-appellee breached its duty is a question of fact, the trial court erred in granting summary judgment. Plaintiff-appellant's sole assignment of error is well taken. B. STANDARD OF REVIEW: SUMMARY JUDGMENT. Civ.R. 56 provides that summary judgment may be granted only after the trial court determines: 1) no genuine issues as to any material fact remain 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 but to 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 -5- adverse to that party. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio App.2d 1; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317. It is well established that the party seeking summary judgment bears the burden of demonstrating that no issues of material fact exist 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 nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356. In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Ohio State Supreme Court modified and/or clarified the summary judgment standard as applied in Wing v. Anchor Medina, Ltd. Of Texas (1991), 59 Ohio St.3d 108. Under Dresher, *** 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 material element of the nonmoving party's claim. Id. 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. 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. The motion must be overruled if reasonable -6- minds could find for the party opposing the motion. Saunders v. McFaul (1990), 71 Ohio App.3d 46; Link v. Leadworks Corp. (1992), 79 Ohio App.3d 735, 741. C. THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT. Appellant correctly argues that the open and obvious doctrine is inapplicable to the case at bar. As the Ohio State Supreme Court stated in Simmers v, Bentley Constr. Co. (1992), 64 Ohio St.3d 642, 645: Historically, a landowner's liability in tort is incident to the occupation or control of the land, which involves the owner's right and the power to admit and exclude people from the premises. The open and obvious doctrine, therefore, governs a landowner's duty to persons entering the property -- property over which the landowner has the right and power to admit or exclude persons as invitees, licensees, or trespassers. (Citations omitted). * * * Accordingly, we hold that an independent contractor who creates a dangerous condition on real property is not relieved of liability under the doctrine which exonerates an owner or occupier of land from the duty to warn those entering the property concerning open and obvious dangers on the property. Therefore, the law of negligence must be applied to our determination of whether or not the trial court erred in granting appellee's motion for summary judgment. 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. Koncieczny (1990), 52 Ohio -7- St.3d 215, 217; Jeffers v. Olexo (1989), 43 Ohio St.3d 140; Thomas v. Parma (1993), 88 Ohio App.3d 523, 527. A defendant's duty to a plaintiff depends upon the relationship between the parties and the foreseeability of injury to someone in the plaintiff's position. Houston v. Koncieczny (1990), 52 Ohio St.3d 214. Injury is foreseeable if a defendant knew or should have known that its act was likely to result in harm to someone. Houston, supra; Commerce & Industry Ins. Co. V. Toledo (1989), 45 Ohio St.3d 96. After a review of the record, we find there exists sufficient evidence that a genuine issue of material fact remains as to whether the defendant-appellee had a duty to warn of a hazard created by the carpet cleaners. Again, whether or not the cleaning hose plaintiff-appellant tripped over was connected to the hose the cleaners were using is unclear from the record. However, there is no dispute that the hose, which is approximately five to six inches in diameter, was basically the same color as the beige carpeting. Moreover, assuming there was a duty owed by defendant- appellee, we find that when viewing the evidence most favorably towards plaintiff-appellant, whether plaintiff-appellant was contributory negligent and/or assumed the risk are issues of fact for the jury to decide. Simmers, supra; Borchers v. Winzeler Excavating Co. (1992), 83 Ohio App.3d 268; Paulin v. John R. Jurgensen Co. (1982), 7 Ohio App.3d 273. -8- Accordingly, the trial court erred when it granted defendant- appellee's motion for summary judgment. Plaintiff-appellant's sole assignment of error is well taken. Judgment reversed and remanded. -9- This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellant recover of said appellee costs herein. It is ordered that a special mandate be sent to said 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. DYKE, J. and ROCCO, J., CONCUR. DAVID T. MATIA PRESIDING 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 .