COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72000 MARGARET DRAPER : ACCELERATED DOCKET : : JOURNAL ENTRY PLAINTIFF-APPELLANT : : AND v. : : OPINION CENTRUM LANDMARK THEATER : : PER CURIAM : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: JUNE 12, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-308318. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Mitchell A. Weisman, Esq. Daniel P. Goetz, Esq. Weisman, Goldberg & Weisman 1600 Midland Building For Defendant-Appellee: Jeffrey A. Schenk, Esq. Quandt, Giffels and Buck 800 Leader Building Cleveland, OH 44114 -2- PER CURIAM: This cause came to be heard upon the accelerated calender pursuant to App.R. 11.1 and Loc.R. 25. Margaret Draper, plaintiff- appellant, appeals the decision of the Cuyahoga County Court of Common Pleas granting Centrum Landmark Theater's, defendant- appellee's, motion for summary judgment. Appellant assigns one error for review. For the following reasons, this court affirms the decision of the trial court. From the trial record and briefs of the parties the following facts were adduced. On June 17, 1995, Margaret Draper, appellant, went to Centrum Landmark Theater, appellee, to view a motion picture. After the movie was over and while the credits were still rolling, appellant began to leave the theater. At this time, the lights were still turned down. Appellant headed toward what she believed was an exit and fell over a single step. On May 8, 1996, appellant filed a complaint against Centrum Landmark Theater, appellee, seeking damages in the amount of twenty thousand dollars ($20,000) for the injuries sustained in the fall. Appellant alleged negligence in one or more of the following respects: 1) in failing to properly maintain and/or repair premises within their possession and/or control, 2) in permitting the creation of and continuous existence of a dangerous condition which constituted a nuisance, and/or 3) failing to properly and adequately warn the plaintiff, Margaret Draper, of a dangerous condition which constituted a nuisance. Appellee filed a motion for summary judgment arguing the hazard was open and obvious to -3- appellant. On December 30, 1996, the trial court granted appellee's motion for summary judgment. Appellant states as her sole assignment of error: THE LOWER COURT ERRED WHEN IT GRANTED DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BECAUSE A MATERIAL QUESTION OF FACTS (SIC) EXISTS PRECLUDING THE GRANT OF A MOTION FOR 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 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), -4- 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 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. 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 St.3d 215, 217; Jeffers v. Olexo (1989), 43 Ohio St.3d 140; Thomasv. Parma (1993), 88 Ohio App.3d 523, 527. -5- We are mindful that the principles of comparative negligence have superceded the doctrine of contributory negligence as an absolute bar to recovery under R.C. 2315.19. However, the advent of comparative negligence analysis does not necessarily preclude an award of summary judgment. In Mitchell v. Ross (1984), 14 Ohio App.3d 75, a post-comparative negligence case, we held at paragraph two of the syllabus: Summa ry judgment may be granted to defendants in a ne gligence suit where, after construing the undisputed evidence most strongly in favor of plaintiff, a reasonable person could only conclude that the contributory negligence of the plaintiff was greater than the combined negligence of the defendants. See, also, Purpera v. Joyce Asamoto, et al. (June 22, 1995), Cuyahoga App. No. 67917. In this case, plaintiff was a business invitee on defendant's premises and defendant accordingly owed her a duty to exercise reasonab le care in keeping the premises in a safe condition and warning the invitee of any latent or concealed perils of which defendant had knowledge. Perryv. Eastgreen Realty Company (1978), 53 Ohio St. 2d 51. The owner or occupier of the premises is not an insurer of the safety of those traversing the premises. Thus, 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; Paschel v. Rite Aid Pharmacy (1985), 18 Ohio St.3d 203. Plaintiff-appellant argues the trial court erred in granting -6- appellee's motion for summary judgment. Specifically, appellant argues since it was her first time in the theater and the step was not discoverable in the darkness, it constitutes a hazard. Since there was a question of fact concerning the adequacy of appellee's warning, the trial court should not have granted appellee's motion for summary judgment. We disagree. It is well established that the mere fact appellant fell does not establish any negligence on the part of the appellee. Jennings v. Ameritrust Co. (Oct. 6, 1994), Cuyahoga App. No. 66867, unreported; Green v. Castronova (1966), 9 Ohio App.2d 156. Rather neglig ence must be proven by showing a duty exists and that appell ee failed to satisfy that duty. Feichtner v. City of Cleveland (1995), 95 Ohio App.3d 388. In order to avoid summary judgment, it is incumbent upon appellant to produce evidence that would tend to show that nature and design of the step was defective as it existed representing a dangerous condition. If the steps did not represent a dangerous condition, appellee did not have a duty to warn appellant of any danger. Nagy v. Wallis (April 27, 1995), Cuyahoga App. No. 66989, unreported. Appellant, however, does not allege the step was defective in condition or that there existed a deficiency in the design. Insteadappellant argues that the step was a hazard as it was not discoverable in the darkness of the theater. However, it is well settled that darkness is always a warning, and for one's own protection it may not be disregarded. Jeswald v. Hutt (1968), 15 Ohio St.2d 224; Umberto Brandimarte v. Mrs. Royal D. Packard (May -7- 18, 1995), Cuyahoga App. No. 67872, unreported. Accordingly, there can be no material issue as to any material fact where no duty is owed. See ex. Nagy v. Wallis (April 27, 1995), Cuyahoga App. No. 66989, unreported; Davis v. Friendly's Ice Cream Corp. (September 27, 1995), Summit App. No. 17094, unreported. Moreov er, assuming arguendo a duty did exist, we find appellant's actions preclude her from relief. In this case, appellant and her friend arrived at the theater late. The lights were down and she walked down a number of steps to find a seat. Appellan t noticed the steps had dim lights on them. After the movie, she got out of her seat while the lights were still turned down during the credits of the movie. Instead of leaving by way of the lighted steps she came in, appellant decided to leave the theater through a side exit door. As it was dark, appellant was looking at the exit sign as she approached the door. She did not see the step prior to falling. Appellant did, however, admit that she saw the same dim lighting as were on the other stairs after she had fallen. She merely was not looking at the ground at the time of the accident. In the present case, we find appellant chose to leave the theater before the lights came up. Appellant chose not to exit by way of the familiar staircase which had dim lights on the steps. Instead she chose to leave the building through an unfamiliar route even though the theater was dark. Moreover, all the evidence suggests that had appellant looked at the ground, she would have observed the dim lights placed along the step she fell over. Under -8- the circumstances, it is clear that appellant failed to proceed with due deference to the dangers attendant to moving through the dark in an unfamiliar building. A reasonable person could only conclu de that the contributory negligence of the plaintiff was greaterthan the negligence, if any, of the defendant. See Orens v. Ricardo's Restaurant (Nov. 14, 1996), Cuyahoga App. No. 70403, unreported. Accordingly, we find appellant has failed to offer evidence to support a claim that defendant-appellee breached a duty owed to plaintiff or that such breach, if any, was the proximate cause of her fall and injuries. The trial court did not err in granting appellee's motion for summary judgment. Judgment affirmed. -9- It is ordered that appellee recover of appellant 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. PATRICIA BLACKMON, PRESIDING JUDGE DAVID T. MATIA, JUDGE LEO M. SPELLACY, 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 journa lization of this court's announcement of decision by the .