COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73075 DIANE WOESTE : ACCELERATED DOCKET : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION CONVENIENT FOOD MART, ET AL. : : PER CURIAM Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION MARCH 19, 1998 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-306766 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: MICHAEL MICHELSON (#0015556) CHATTMAN, GAINES & STERN 1400 Renaissance Center 1350 Euclid Avenue Cleveland, Ohio 44115-1817 For Defendant-Appellee, Mama Catena Pizzeria: THOMAS E. DOVER (#0016765) TIMOTHY WHITFORD (#0059954) GALLAGHER, SHARP, FULTON & NORMAN Seventh Floor, Bulkley Bldg. 1501 Euclid Avenue Cleveland, Ohio 44115 (CONTINUED ON NEXT PAGE) For Defendant-Appellee, Robert Koles d/b/a Bellaire Industries: BRIAN D. KERNS (#0037015) LAW OFFICES OF BRIAN D. KERNS & ASSOCIATES 7029 Pearl Road - Suite 310 -ii- Middleburg Hts, Ohio 44130 PER CURIAM: Plaintiff-appellant Diane Woeste ( appellant ) appeals from the entry of summary judgment in favor of defendants-appellees Robert Koles and Mama Catena Pizzeria in a negligence action. Appellant assigns the following error for review: I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING APPELLEES' MOTIONS FOR SUMMARY JUDGMENT BECAUSE THERE EXIST -2- GENUINE ISSUES OF MATERIAL FACT WHICH MUST BE DECIDED BY A JURY AS TO WHETHER THE POTHOLE WHICH INJURED APPELLANT WAS AN OPEN AND OBVIOUS DANGEROUS CONDITION. Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. On April 16, 1994, appellant left her job as a waitress at Pete and Charlie's restaurant at around 9:30 or 10:00 p.m. Appellant drove a short distance on Babbitt Road in Euclid, stopping at the Convenient Store located on that street. Appellant parked directly in front of doors leading into the Convenient Store. Appellant exited her automobile and walked a few steps toward the store. She caught her heel in a pothole. Appellant flew over the curb, falling onto the brick sidewalk in front of the store. Appellant broke her left wrist as a result of the fall. Appellant returned to her home. The next day, she went to the hospital for medical treatment. Once her cast was removed, appellant did not have any other treatment for her wrist. Appellant averred she can no longer work as a waitress because of weakness in her left arm due to the fall. Appellant never notified anyone at the Convenient Store that she had fallen. Appellant was a frequent customer of the Convenient Store prior to the fall. She had shopped there two or three times the week before she fell. Appellant had walked across the same area before as where she fell. Appellant had noticed the pothole in which she fell on previous visits to the store and avoided walking -3- in it. The parking lot had been in poor condition for as long as appellant could remember. On the night she fell, appellant stated that nothing was obstructing her view of the pothole although the lighting in the parking lot was dim. However, appellant reported she did not have any problems with visibility and walking toward the store. On April 12, 1996, appellant filed a complaint against Convenient Food Mart, Euclid Floral, Heidi's Hair Fashion, Allstate Insurance Company, Mama Catena Pizzeria, and Robert Koles, individually and d.b.a. Bellaire Industries. Robert Koles and Bellaire Industries own the property at which appellant fell. The other defendants were the various businesses located in the strip shopping center. All of the defendants filed motions for summary judgment. Appellant responded with an affidavit in which she averred that the parking lot was poorly illuminated and that, at the time of her injury, she did not have any specific recollection of the location of the pothole in which she fell. The trial court granted the summary judgment motions of all the defendants, finding that the hazard was open and obvious. The trial court further found that appellant admitted to being aware of the pothole in her deposition. Appellant has appealed the judgment of the trial court. All of the defendants except Robert Koles d.b.a Bellaire Industries and Mama Catena Pizzeria have settled with appellant. The appeal against those parties has been dismissed. II. -4- In her assignment of error, appellant contends the trial court erred by granting summary judgment as genuine issues of material fact still are disputed. Appellant argues that whether the pothole in which she fell was open and obvious was a question which must be determined by a jury. Appellant points out that in her affidavit she denied having any knowledge of that specific pothole and averred that the parking lot was poorly illuminated. This case was decided by summary judgment. Civ.R. 56(C) provides that summary judgment is proper if the trial court determines 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 but 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. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Summary judgment is a procedural device designed to terminate litigation and to avoid a formal trial where there is nothing to try. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. Summary judgment is not appropriate where the facts are subject to reasonable dispute when viewed in a light favorable to the nonmoving party. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 104. The moving party is entitled to summary judgment if the nonmoving party fails to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp v. Catrett (1986), 477 U.S. 317, 322. -5- Mama Catena argues appellant was not a business invitee or ever a patron of Mama Catena. The pizzeria is located on the opposite end of the strip shopping center from Convenient Food Mart. Appellant was not even aware of the location of Mama Catena. The lease agreement required Mama Catena to pay on a pro rata basis the cost of repairing and maintaining the parking lot. Mama Catena was not responsible for carrying out the actual repairs itself but only for contributing to the costs. Because Mama Catena had no control over the premises, it owed appellant no duty to maintain the parking lot for the use of a person who was not a business invitee of Mama Catena. See Fryberger v. Lake Cable Recreation Assn., Inc. (1988), 40 Ohio St.3d 349. In order to defeat a motion for summary judgment in a negligence action, the plaintiff must identify a duty owed her by the defendant. Keister v. Park Centre Lanes (1981), 3 Ohio App.3d 19. This evidence, construed most strongly in the plaintiff's favor, must be sufficient to allow reasonable minds to infer that a specific duty was breached, that the breach was the proximate cause of the plaintiff's injury, and that the plaintiff was injured. Id. Whether a defendant owes a duty to a plaintiff depends on the relationship between them. Commerce & Industry Ins. Co. v. Toledo (1989), 45 Ohio St.3d 96, 98. A business invitee is one who comes upon the premises of another, by invitation, express or implied, for some purpose which is beneficial to the owner. Scheibel v. Lipton (1951), 156 Ohio St. 308. A merchant owes patrons and -6- prospective customers upon the premises of a shopping center a duty to exercise ordinary care for their safety, which is the degree of care exercised by a reasonable and prudent person. Parsons v. Lawson Co. (1989), 57 Ohio App.3d 49. The merchant or owner of the premises must maintain the premises in a reasonably safe condition and warn the invitee of latent or concealed defects of which the merchant or owner has or should have knowledge. Kubiszak v. Rini's Supermarket (1991), 77 Ohio App.3d 679. The duty of care extends to providing a reasonable safe ingress or egress. Tyrrell v. Invest. Assoc., Inc. (1984), 16 Ohio App.3d 47. However, a merchant is not an insurer of the customer's safety. Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203. A shopkeeper or owner has no duty to protect a customer from conditions which are known to the customer or are so obvious and apparent that the customer may reasonably be expected to discover them and protect himself against them. Sidle v. Humphrey (1968), 13 Ohio St.2d 45, paragraph one of the syllabus. The open and obvious nature of the hazard itself serves as a warning to the customer. The shopkeeper or owner may reasonably expect that persons entering the premises will discover those dangers and take appropriate measures to protect themselves. Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d 642. The open and obvious doctrine is determinative of the issue of the landowner or shopkeeper's duty. If there is no duty, the owner or shopkeeper cannot be negligent. Anderson v. Ruoff (1995), 100 Ohio App.3d 601. -7- In Bachus v. Giant Eagle, Inc. (1996), 115 Ohio App.3d 155, the plaintiff tripped and fell on cracks in the blacktop of the parking lot. The plaintiff admitted he knew of the deteriorated blacktop as he shopped at the Giant Eagle store at least three times a week. The plaintiff was not watching where he was walking at the time he fell but was reading the advertisements on the store's windows. The court found the defect in the blacktop to be very obvious and observed that a pedestrian has a duty to look where he may be walking. Appellant admitted she was aware of the poor condition of the parking lot. She was familiar with the parking lot as she was a frequent customer of the Convenient Store. In her deposition, appellant stated she had prior knowledge of the particular pothole in which she fell. Although appellant contradicted herself on this point in her affidavit, it is clear appellant was aware of the numerous holes in the lot but was not watching where she was stepping on the night in question. Appellant stated that she had no problems with visibility that night. There is no evidence in the record to contradict the trial court's finding that the pothole was open and obvious. The defendants owed appellant no duty as the hazard was open and obvious and, therefore, were not negligent. The trial court did not err by granting the defendants' motions for summary judgment. Appellant's assignment of error is overruled. Judgment affirmed. -8- 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. -9- A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA A. BLACKMON, ADM. JUDGE LEO M. SPELLACY, JUDGE MICHAEL J. CORRIGAN, JUDGE N.B. This 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(B) 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 .