COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71228 KEVIN ROGERS, GUARDIAN OF : CATHERINE ROGERS : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : : OPINION WESTLAKE VILLAGE, ET AL. : : : DEFENDANTS-APPELLEES. : DATE OF ANNOUNCEMENT OF DECISION: MAY 15, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-290735. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: Lauren K. Kinkopf, Esq. Brian K. Balser, Esq. Brian K. Balser Co., L.P.A. 5311 Meadow Lane Court, Suite 1 Elyria, Ohio 44035 For Defendants-appellees: John G. Peto, Esq. Reminger & Reminger The 113 St. Clair Building Cleveland, Ohio 44113 John F. Burke, III, Esq. Mansour, Gavin, Gerlack & Manos Co., LPA 55 Public Square, Suite 2150 Cleveland, Ohio 44113-1994 - 3 - SWEENEY, JAMES D., C.J.: Plaintiff-appellant Kevin Rogers, Guardian of Mrs. Catherine Rogers, appeals from the granting of summary judgment in favor of defendant-appellee-movant Westlake Village. For the reasons adduced below, we affirm. A review of the record on appeal indicates that Mrs. Catherine Rogers, d.o.b. August 10, 1913, moved into a retirement home operated by Westlake Village at 28550 Center Ridge Road, Westlake, Ohio, in 1991. On November 5, 1994, at approximately 3:40 p.m., Westlake Village employee Erica Reid was standing at the lobby desk speaking to fellow employee Mrs. Regina Walczak, who was seated behind the lobby desk. Ms. Reid was picking up her paycheck and was standing approximately one foot from the edge of the desk. Mrs. Rogers walked past these two employees as she went to deposit her rental payment in a mail slot located in a hallway near the lobby. As Mrs. Rogers passed the desk, she said hello to the employees standing at the desk. After depositing the rent payment, Mrs. Rogers turned around and proceeded to walk back through the lobby. As Mrs. Rogers approached the desk area, she walked directly behind Ms. Reid despite the ready availability of the remainder of the open lobby which could be used to proceed through the lobby. Ms. Reid, who did not recall actually turning around or otherwise moving, "shifted her weight" and took a step back, colliding with Mrs. Rogers. See deposition of Ms. Reid at 9-10. Mrs. Walczak - 4 - stated in her deposition that Ms. Reid, without looking, took a step back from the desk while turning to the left, at which time she bumped into Mrs. Rogers, who was walking directly behind Ms. Reid. See deposition of Mrs. Walczak at 9, 22-23. Mrs. Rogers stated in her deposition that Ms. Reid, overcome with a compliment paid her by Mrs. Walczak, stepped back from the desk into the person of Mrs. Rogers. See deposition of Mrs. Rogers at 41-42, 48, 50. As a result of the collision, Mrs. Rogers lost her balance and fell to the floor, landing on her left hip. Mrs. Rogers was transported to a local hospital where she had surgery on her fractured left hip, which was followed by three weeks in a rehabilitation facility. The original complaint was filed on June 9, 1995, alleging negligence by Westlake Village and its agent employee, Ms. Reid. On June 12, 1996, Westlake Village filed its motion for summary judgment supported by excerpts from the depositions of Mrs. Rogers, Ms. Reid and Mrs. Walczak, and photographs of the lobby area. Complete transcripts of these depositions were filed with the trial court on June 12, 1996. Plaintiff filed on July 15, 1996, a brief in opposition to summary judgment supported by several brief excerpts from depositions and an answer to an interrogatory indicating that there were 173 residents at the retirement home on the date of the accident. - 5 - The trial court granted the motion for summary judgment on August 7, 1996, without opinion. This appeal offers the following lone assignment of error for review: THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT-APPELLEE IN THAT EVIDENCE EXISTS WHICH ESTABLISHES MATERIAL QUESTIONS OF FACT WHETHER AN EMPLOYEE OF DEFENDANT-APPELLEE WAS NEGLIGENT IN KNOCKING THE PLAINTIFF-APPELLANT DOWN ON DEFENDANT'S PREMISES. In addressing this assignment we note the following language as contained in Wilkerson v. Eaton Corp. (March 10, 1994), Cuyahoga App. No. 65812, unreported, 1994 Ohio App. LEXIS 1043: Civ.R. 56(C) specifically provides that before summary judgment may be granted, the court must determine 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 only one conclusion, and viewing such evidence most strongly in favor of the non- movant, the conclusion is adverse to that party. Osborne v. Lyles (1992), 63 Ohio St.3d 326, 587 N.E.2d 825. A motion for summary judgment forces the non-moving party to produce evidence on issues for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095 (syllabus). The evidentiary materials must be timely filed. Civ.R. 56(C). The non-movant must also present specific facts and may not rely merely upon the pleadings or upon unsupported allegations. Shaw v. J. Pollack & Co. (1992), 82 Ohio App.3d 656, 612 N.E.2d 1295. - 6 - Also see Celotex v. Catrett (1986), 477 U.S. 317, 322-323, 106 S.Ct. 2548, 2552-2553, 91 L.Ed.2d 265, 273-274. Additionally, [T]he dispute must be "material" in that the facts involved have the potential to affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211. The issue to be tried must also be "genuine," allowing reasonable minds to return a verdict for the non-moving party. Id. 477 U.S. at 248- 252, 106 S.Ct. at 2510-2512, 91 L.Ed.2d at 211- 214. Manofsky v. Goodyear Tire & Rubber Co. (Summit, 1990), 69 Ohio App.3d 663, 666. To prevail on an action based on negligence, the following must be demonstrated: (1) the existence of a duty owed by defendant to plaintiff; (2) the failure of defendant to discharge that duty; and (3) injury to the plaintiff proximately caused by the failure to discharge that duty. Littleton v. Good Samaritan Hosp. and Health Ctr. (1988), 39 Ohio St.3d 86, 92. The parties agree, correctly, that the common law duty owed to a business invitee, such as Mrs. Rogers, is one of ordinary care. See Presley v. Norwood (1973), 36 Ohio St.2d 29, 31. This "ordinary care" standard has been interpreted to require that an occupier of premises (the defendant herein) owes an invitee (Mrs. Rogers) a duty to use reasonable care to protect the invitee from - 7 - harm due to dangers, unknown to the invitee, of which the occupier of premises is or should be aware. Paul v. Uniroyal Plastics Co. (1988), 62 Ohio App.3d 277. In addition, occupiers of premises are not insurers of the safety of an invitee where the dangers "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." Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203, 203-204, citing Sidle v. Humphrey (1968), 13 Ohio St.2d 45 [42 O.O.2d 96], paragraph one of the syllabus. In the case sub judice, there is no allegation that the lobby area design is defective. There is also no evidence demonstrating that the defendant knew, or could have known, of Ms. Reid's propensity to take one step back from the lobby desk and bump into a resident of the retirement home. Likewise, there is no way the defendant could have foreseen that an elderly resident of the retirement village, with knowledge of the presence and location of Ms. Reid, would elect to walk directly behind a person speaking at the lobby desk, even though there was more than adequate space to traverse the lobby and not place oneself in danger of being bumped should a person standing at the desk take one step back. See Jeffers v. Olexo (1989), 43 Ohio St.3d 140 (proximate cause not demonstrated where the property owner, under the circumstances, did not foresee and, acting as a reasonably prudent person, could not have foreseen the consequences of the allegedly negligent acts.) - 8 - Finally, the danger cited by the plaintiff, to-wit, the possibility that a person standing at the lobby desk would step away from the desk, is so obvious and apparent that Mrs. Rogers should have anticipated the danger and not placed herself in jeopardy by walking so closely behind Ms. Reid that one step from the desk would cause a collision between the two persons. Accordingly, proximate cause cannot be demonstrated. Assignment overruled. Judgment affirmed. - 9 - It is ordered that appellee 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 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. PATRICIA A. BLACKMON, J., and JOHN T. PATTON, J., CONCUR. JAMES D. SWEENEY CHIEF JUSTICE 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 .