COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73474 THOMAS D. STARK, : : Plaintiff-Appellant : JOURNAL ENTRY : and vs. : OPINION : GLENMOOR PROPERTIES LTD. : PARTNERSHIP, : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 15, 1998 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. 304821 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: James D. Shelby 55 Public Square Suite 1260 Cleveland, Ohio 44113-1992 For defendant-appellee: Laura M. Faust Ronald B. Lee ROETZEL & ANDRESS 220 Market Avenue South Suite 520 Canton, Ohio 44702 -2- NAHRA, J.: Thomas Stark, appellant, appeals the grant of summary judgment in favor of Glenmoor Properties Limited Partnership, appellee. Appellant brought this case against appellee, Board of Stark County Commissioners, and Ohio Power Company for injuries sustained after he fell in a hole in the middle of a driveway. Appellant was injured while directing a truck backing onto the driveway from the roadway. The driveway leads to a service building on Glenmoor Country Club. The land on which the country club is located is owned by appellee. The portion of the driveway where appellant was injured is located on land owned by the Stark County Board of Commissioners. The hole into which appellant fell was a depression caused by the removal of a utility pole from the drive. Appellant originally filed an action against Glenmoor Country Club and others in Stark County. The Stark County Court of Common Pleas granted summary judgment in favor of Glenmoor Country Club and denied appellant's motion to amend its complaint to add appellee as a defendant. Appellant thereafter voluntarily dismissed that action and filed the present action against appellee. In this case, appellant has settled his claim against Ohio Power and the trial court has granted summary judgment in favor of both appellee and the Stark County Board of Commissioners. Appellant appeals only the grant of summary judgment in favor of appellee. Appellant's sole assignment of error reads: -3- THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT Appellant argues that the court erred by granting summary judgment in this case where 1) appellant's complaint was not barred under the doctrine of res judicata or collateral estoppel; 2) appellant's claim of negligence against appellee was properly brought as appellee occupied and maintained the property upon which appellant was injured; and 3) the hole into which appellant fell was not an open and obvious hazard which precluded recovery. We first examine appellant's claim that the trial court could not grant summary judgment on the basis of res judicata. Under the doctrine of res judicata, A valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action. Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, 653 N.E.2d 226, syllabus. Where the parties in subsequent litigation are not identical, res judicata is applicable only if the subsequent parties are in privity. Deaton v. Burney (1995), 107 Ohio App.3d 407, 412, 669 N.E.2d 1, 4. In applying [res judicata], the court will look beyond the nominal parties to the substance of the cause to determine the real party in interest. Id., citing State ex rel. Hofsetter v. Kronk (1969), 20 Ohio St.2d 117, 254 N.E.2d 15, paragraph two of the syllabus; Trautwein v. Sorgenfrei(1979), 58 Ohio St.2d 493, 501, 391 N.E.2d 326, 330-31. In this case, appellee argues that the Stark County Court of Common Pleas entered a final judgment as to appellee's liability in this case. The judgment entry filed in Stark v. Glenmoor Country -4- Club(1996), Stark County Court of Common Pleas No. 1995-CV-00901, unreported, states: The Motion for Summary Judgment filed by Glenmoor Country Club is herein granted. The Court finds that there has been no proof provided by the Plaintiff that Glenmoor was the owner or occupier of the land in question. Summary Judgment is, therefore, appropriate pursuant to the information properly before the Court. *** The record reflects that Glenmoor Country Club was not the owner or occupier of the land upon which appellant was injured. However, the record reflects that appellee is the owner of the adjacent property, constructed the driveway where appellant was injured, and caused the telephone pole to be removed. In light of these facts, we cannot say that appellee is entitled to summary judgment on the basis of resjudicata because the identity of appellee is distinct from that of Glenmoor Country Club. Appellant next argues that summary judgment was inappropriate because appellee, although not the owner of the land where appellant was injured, maintained and occupied it to the extent that it possessed the premises. Appellant was an invitee on the premises he was injured. The occupier of land owes a duty of ordinary care to invitees on the land to maintain the land in a reasonably safe condition. Scheibel v. Lipton (1951), 156 Ohio St. 308, 102 N.E.2d 453; In Dayton v. McLaughlin, the following scope of premises liability with respect to invitees was explained as follows: The duty to keep premises safe for invitees extends to all of the operations of the premises which are included within the invitation and which it is necessary or -5- convenient for the invitee to visit or use in the course of business for which the invitation was extended or at which his presence should therefore reasonably be anticipated or to which he is allowed to go. 50 Ohio App.3d 69, 72, 552 N.E.2d 965, 968, quoting Cochrane v. Dowd (CP 1962), 91 Ohio Law Abs. 247, 254, affirmed (1962), 91 Ohio Law Abs. 256. Appellee argues that it neither owns or occupies the land upon which appellant was injured because the land is owned by the Stark County Board of Commissioners. In tort cases, however, the actual ownership of land is not dispositive of issues of liability, rather the possession of land is. See, Shump v. First Continental- Robinwood Associates (1994), 71 Ohio St.3d 414, 417, 644 N.E.2d 291, 295 (citing Restatement of the Law 2d, Torts (1965), Sections 328E to 350). A person possesses land for the purposes of determining liability where he occupies that land with the intent to control it. Restatement of the Law 2d, Torts (1965), Section 328E. Appellant introduced evidence that appellee exerted control over that land by constructing the driveway and thereafter causing the telephone pole to be relocated. Whether or not appellee exerted control over the driveway sufficient to find it subject to liability is a question of fact not appropriate for resolution on summary judgment. Appellant also argues that summary judgment was inappropriate on the basis of the open and obvious hazard doctrine as proposed by appellee. Although appellant was injured while on a driveway, we find the principles of law announced in the second and third -6- paragraphs of the syllabus in Grossnickle v. Village of Germantown (1965), 3 Ohio St. 2d 96, 209 N.E.2d 442, to be applicable to the facts in this case: 2. A pedestrian using a public sidewalk is under a duty to use care reasonably proportioned to the danger likely to be encountered but is not, as a matter of law, required to look constantly downward under all circumstances even where she has prior knowledge of a potential hazard. 3. Whether the care and attention ordinarily required of a pedestrian using a public sidewalk and approaching an intersection is diverted by weather conditions, traffic hazards and the apparently safe condition of the surface of the walk so as to excuse her from observing a hazard, which she otherwise would have the duty to see and the potential danger of which she had prior knowledge, is a question of fact for a jury. In this case, there was a hole the diameter of a telephone pole in the middle of an asphalt driveway. Whether or not appellant was negligent in not perceiving the hole before falling into it under the attendant circumstances is a question of fact left to be decided by a jury under principles of comparative negligence. See, e.g., Texler v. D.O. Summers Cleaners & Shirt Laundry Co. (1998), 81 Ohio St.3d 677, 693 N.E.2d 271. (Amount of contributory negligence, if any, of plaintiff who walked into door propped open across sidewalk by bucket containing concrete blocks is issue left for jury to resolve.) For these reasons, summary judgment was inappropriate in this case, we reverse the grant of summary judgment in favor of appellee, and remand this cause to the trial court for further proceedings. -7- This cause is reversed and remanded for proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his 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. JOSEPH J. NAHRA JUDGE BLACKMON, A.J., and SPELLACY, J., CONCUR. 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 .