COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72005 : ACCELERATED DOCKET DOROTHY HILL : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : VOGUE BEAUTY ACADEMY, ET AL. : PER CURIAM : Defendants-Appellees : : DATE OF ANNOUNCEMENT JULY 17, 1997 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 29902 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant For Defendants-Appellees Dorothy Hill: Vogue Beauty Academy: JOSEPH R. COMPOLI, ESQ. THOMAS E. BETZ, ESQ. JAMES R. GOODLUCK, ESQ. Gallagher,Sharp, Fulton & Norman 652 E. 185th Street 630 Bulkley Bldg., 1501 Euclid Cleveland, Ohio 44119 Cleveland, Ohio 44115 -2- - i - For Defendant-Appellee Nick Salamone: JAMES W. BARNHOUSE, ESQ. WILLIAM F. SCHMITZ, ESQ. Kitchen, Derry & Barnhouse 1100 Illuminating Building 55 Public Square Cleveland, Ohio 44113-1999 BRIAN MCGRAW, ESQ. Gallagher,Sharp,Fulton & Norman 1501 Euclid Avenue Bulkley Building Cleveland, Ohio 44115 -2- PATRICIA ANN BLACKMON, P.J.: The issue in this accelerated appeal is whether an owner or occupier of property owes a duty of care and a duty to warn to his customer who falls while stepping up onto an average height concrete curb located on the owner or occupier's property. The trial court held no duty is owed when the condition is open and obvious and granted summary judgment to Vogue Enterprises, Inc., d.b.a. Vogue Beauty Academy also identified as Vogue Beauty Salon and Nick Salamone (collectively "appellees"), defendants- 1 appellees, under the principle of no duty owed. Deborah Hill, plaintiff-appellant, appeals this decision and assigns the following errors for our review: I. THE LOWER COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEE NICK SALAMONE. II. THE LOWER COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEE VOGUE BEAUTY ACADEMY. We affirm the decision of the trial court. The apposite facts follow. Both errors will be discussed together. Hill fell while stepping up onto a concrete curb in the rear of the Vogue Beauty Academy. Hill was a customer who had parked her vehicle in the rear at one of the meters. When she accessed the area, she parked her car and walked from the parking lot to several small steps that connected a sidewalk 1 Vogue Academy leased the premises from the building's owner, Nick Salamone, who is deceased. This action was pursued against his estate. -3- area. (Hill Depo. at 28.) The sidewalk area ran along the back side of the building where the salon was located. Upon exiting the salon to place money in the parking meter, Hill traversed a different area than used to enter the establish- ment. She explained that when she exited the building she observed a garbage dumpster on the sidewalk near the steps leading to the parking lot which was not there when she arrived. (Hill Depo. at 28.) Consequently, she crossed the driveway off the sidewalk and when she stepped upon the curb abutting the parking lot, she fell. She said "she stepped upon that sidewalk a little bit too hard" and that's when she fell and hit her knee on the edge of the concrete. (Hill Depo. at 15.) The driveway that she crossed was a depressed area in the sidewalk for vehicles to access for loading and unloading. Thus, after exiting the salon she walked a few steps on the sidewalk, stepped down onto the driveway, walked a distance to its edge, and stepped up onto the sidewalk abutting the parking lot. It is at that curb that she fell after trying to step up. Hill had been to this salon on four other occasions. She always parked in the rear and she was familiar with the area. It is unclear from her deposition testimony whether she had ever gained access to the salon by travelling across the driveway. Her deposition testimony suggested she normally travelled the sidewalk and steps to and from the parking lot to the salon. -4- Appellees filed separate motions for summary judgment after Vogue Academy cross-claimed against Salamone. The trial court granted both summary judgment motions without opinion. This court is guided by the Ohio Supreme Court's decisions in Sidle v. Humphrey (1968), 13 Ohio St.2d 45 and Paschel v. Rite Aid Pharmacy (1985). In both cases, the court held a property owner is under no duty to protect a business invitee from hazards that are so obvious and apparent that the invitee is reasonably expected to discover and protect against them herself. Thus, the issue for us is whether the curb was so open and obvious as to negate any duty owed by the owner or occupier. The knowledge of the condition removes the sting of unreasonableness from any danger that lies in it, and obviousness may be relied on to supply knowledge. Sidle at 48, citing 2 Harper & James, Law of Torts (1956), 1491. Hill stated in her deposition that she was looking at all times when she stepped up on the curb and fell. Hence, the obvious character of the curb is incompatible with any negligence in warning against it. Curbs are traversed daily by pedestrians who are aware of the risk that they bring. Here, Hill knew of the curb because it was obvious to her. She did not fall because of a break or because it was too high or had some hidden defect. She fell because she stepped too high and too hard. This court has held the mere fact that the appellant falls does not establish negligence. Jennings v. Ameritrust Co. (Oct. 6, 1994), Cuyahoga App. No. 66867, unreported. See also Green v. -5- Castronova (1966), 9 Ohio App.2d 156. Negligence must be established first by showing a duty, breach, and proximate cause. Feichtner v. City of Cleveland (1995), 95 Ohio App.3d 388. Negligence is shown when the plaintiff demonstrates that there is a dangerous or latent defect of which the owner should have knowledge. Scheibel v. Lipton (1951), 156 Ohio St. 308. Hill argues the curb was dangerous because of a latent defect. She offered the affidavit of Dr. Benjamin Wallace. He stated Hill was "perceptually deceived" by the similar color of the sidewalk curb, and loading zone. This conclusion does not fit the facts. Hill said she fell because she stepped too high and too hard. Also, the area showed Hill had passed the loading area and the driveway. When she stepped on the sidewalk curb, there was grass in the area, and she said she anticipated the curb which is why she stepped up. Consequently, she was aware of the conditions in her surroundings. "[A] plaintiff who was watching where she was going would be aware of an open and obvious condition of the premises such as the step- [up] in question." Wicichowski v. Gladieux v. Enterprises, Inc. (1988), 54 Ohio App.3d 177, 179. We conclude, therefore, neither the owner nor the occupier owed duty to Hill. The concrete curb was open and obvious as to its condition. Accordingly, in situations of this nature, the pedestrian is obliged to be aware. Hill's assigned errors lack merit. Judgment affirmed. -6- It is ordered that Appellees recover of Appellant their 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 ANN 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 .