COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78280 BERNICE ARSHAM : : JOURNAL ENTRY PLAINTIFF-APPELLANT : : AND v. : : OPINION CHEUNG-THI CORPORATION : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: MAY 31, 2001 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, CV-382972. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Matthew Harris Lucas, Esq. Lustig, Evans & Lucas Co. 526 Superior Avenue 615 Leader Building Cleveland, OH 44114 For Defendant-Appellee: Terrence J. Kenneally, Esq. John M. Bostwick, Esq. Terrence J. Kenneally & Associates 20525 Center Ridge Road Suite 505 Rocky River, OH 44116 TIMOTHY E. McMONAGLE, P.J.: Plaintiff-appellant, Bernice Arsham, appeals the decision of the Cuyahoga County Common Pleas Court that granted summary judgment to defendant-appellee, Cheung-Thi Corporation dba Wok With Wing, on appellant's complaint for negligence. For the reasons -2- that follow, we affirm. A review of the record reveals that Ms. Arsham ( appellant ) entered the Wok With Wing restaurant on June 7, 1998 to attend a graduation dinner party being held at the restaurant. As she descended the steps leading to the restaurant, she misjudged the last step and fell. Apparently several steps lead to a platform- type step from which one more step must be traversed in order to reach the restaurant. It is from this last step that appellant misstepped and sustained injury. The record does not reveal that there was anything irregular about the step in size or shape other than it is separated from the other steps by the platform. Appellant instituted the present action against Wok With Wing claiming that the restaurant's negligence in failing to maintain the premises in a safe manner resulted in the injuries she sustained. Wok With Wing moved for summary judgment, attaching excerpts of appellant's deposition demonstrating that appellant had been to the restaurant on several occasions and therefore should have known of the step from which she fell. Appellant opposed the motion, attaching her affidavit wherein she averred that she had used the elevator on her prior visits and therefore could not have known about the configuration of the stairs. The trial court granted the motion without opinion. Appellant is now before this court challenging the trial court's decision to grant Wok With Wing's motion for summary judgment. An appellate court reviews a trial court's decision on a -3- motion for summary judgment de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. Summary judgment is appropriate when, construing the evidence most strongly in favor of the nonmoving party, (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, that conclusion being adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc. (1998), 82 Ohio St.3d 367, 369-370, citing Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, paragraph three of the syllabus; see, also, Civ.R. 56(C). In order to defeat a motion for summary judgment on a negligence claim, a plaintiff must establish that a genuine issue of material fact remains as to whether (1) a defendant owed a duty of care; (2) the defendant breached this duty; and (3) the breach was the proximate cause of plaintiff's injury causing damage. Texler v. D.O. Summers Cleaners & Shirt Laundry Co. (1998), 81 Ohio St.3d 677, 680; Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142; Menifee v. Ohio Welding Prod., Inc. (1984), 15 Ohio St.3d 75. An owner or occupier of property owes a duty of ordinary care to invitees to maintain the premises in a reasonably safe condition so that an invitee is not unreasonably or unnecessarily exposed to danger. Paschal v. Rite Aid Pharmacy, Inc, (1985), 18 Ohio St.3d 203. While a premises owner is not an insurer of its invitees' safety, the premises owner must warn its invitees of latent or concealed dangers if the owner knows or has reason to know of the hidden dangers. Jackson v. Kings Island (1979), 58 Ohio St.2d 357, -4- 358. Invitees likewise have a duty in that they are expected to take reasonable precautions to avoid dangers that are patent or obvious.SeeBrinkman v. Ross (1993), 68 Ohio St.3d 82, 84; Sidle v. Humphrey (1968), 13 Ohio St.2d 45, paragraph one of the syllabus. Whether a duty exists is a question of law for the court to determine. Mussivand v. David (1989), 45 Ohio St.3d 314, 318. -5- In its motion for summary judgment, Wok With Wing relied on Paschal, 18 Ohio St.3d 203 and Raflo v. Losantiville Country Club (1973), 34 Ohio St.2d 1, maintaining that it is entitled to judgment in its favor as a matter of law because any potential danger posed by the stairway's configuration was obvious and that appellant's prior knowledge of the stairway's configuration relieved Wok With Wing of any liability associated with the injuries sustained by appellant.1 Appellant, on the other hand, avers that she had no prior knowledge of the stairway's existence thereby creating an issue of fact that precludes the granting of summary judgment. Appellant does not otherwise address Wok With Wing's argument concerning the obviousness of the potential danger. Under the open and obvious doctrine, an owner or occupier of property owes no duty to warn invitees of hazardous conditions that are open and obvious. Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d 642, 644. The rationale behind this doctrine is that the open and obvious nature of the hazard itself serves as a warning. Thus, the owner or occupier may reasonably expect that persons entering the premises will discover those dangers and take 1At oral argument, Wok With Wing maintained that application of principles associated with the open and obvious doctrine was unnecessary in this case because the stairway's configuration did not present a hazard. This misrepresents Wok With Wing's argument. In its motion for summary judgment, Wok With Wing does make reference to the applicability of this doctrine, supporting its motion with excerpts of appellant's deposition regarding the stairs' configuration. Moreover, we find that appellant claims that she became injured because the allegedly ill-configured step was unmarked and presented a danger from which she incurred injury. Consequently, application of the open and obvious doctrine is necessary. -6- appropriate measures to protect themselves. Simmers, 64 Ohio St.3d at 644. The continued viability of the open and obvious doctrine was recently discussed by this court in Schindler v. Gale's Supermarket, Inc. (Apr. 6, 2001), Cuyahoga App. No. 78421, unreported, 2001 Ohio App. Lexis 1614. Because the Texler decision is the most recent pronouncement from the supreme court on this issue, its admonitions should not be lightly taken. Indeed, when analyzed in terms of the duty owed, I find the doctrine questionable because it rests on a legal fiction in that it relieves the premises owner of the duty to warn. See Basar v. Steel Service Plus (Apr. 27, 2000), Cuyahoga App. No. 77091, unreported at 12 (McMonagle, J., concurring). To say that a claim is barred because the defendant owed the plaintiff no duty to warn him of the danger is to disregard an express duty on the part of the premises owner to maintain the premises in a reasonably safe condition. Id. at 22. With this in mind, this court is of the opinion that the time has come to analyze the openness and obviousness of a hazard not in terms of the duty owed but rather in terms of causation. This analysis necessitates the application of comparative negligence principles, which requires the factfinder to apportion the percentage of each party's negligence that proximately caused the plaintiff's damages. See R.C. 2315.19(A)(2). Ordinarily this is an issue best determined by the jury unless the evidence is so compelling that reasonable minds can reach but one conclusion. Simmers, 64 Ohio St.3d at 646. In such a case, summary judgment is appropriate if the only conclusion a reasonable trier of fact could reach is that the plaintiff was over fifty percent negligent so as -7- to bar recovery under comparative negligence principles. Schindler v. Gale's Supermarket, Inc. (Apr. 6, 2001), Cuyahoga App. No. 78421, unreported, 2001 Ohio App. Lexis 1614; see, also, Basar v. Steel Serv. Plus (Apr. 27, 2000), Cuyahoga App. No. 77091, unreported, 2000 Ohio App. Lexis 1842 (McMonagle, J., concurring); Wilson v. PNC Bank, N.A. (May 5, 2000), Hamilton App. No. C-990727, unreported, 2000 Ohio App. Lexis 1902 (Painter, J., concurring in judgment only); Hayes v. Wendy's Internatl., Inc. (Feb. 16, 1999), Warren App. No. CA98-07-074, unreported, 1999 Ohio App. Lexis 485. Notwithstanding the above, appellant contends that an issue of fact exists as to her prior knowledge of the stairway's configuration and, as such, summary judgment was inappropriately granted to Wok With Wing. Succinctly, she stated in her affidavit that she had always taken the elevator on previous visits to Wok With Wing and therefore had no prior experience traversing those particular steps from which to infer that she was aware of the stairway's configuration. While appellant correctly asserts that an issue of fact exists as to her prior knowledge, this issue of fact, standing alone, is not material. Appellant's prior knowledge is not dispositive as to whether her negligence was greater than that of Wok With Wing's so as to absolve the latter of any liability and thereby prevail on a motion for summary judgment. The record reveals that the stairs leading to the restaurant were configured so that the last step was separated by a larger, platform-type step. There was nothing in the record to support that this step was in disrepair or otherwise poorly maintained or -8- constructed. It was a step, not unlike other steps over which individuals such as appellant traverse on a daily basis. People can hurt themselves on almost any condition of the premises. That is certainly true of an ordinary flight of stairs. But it takes more than this to make a condition unreasonably dangerous. If people who are likely to encounter a condition may be expected to take perfectly good care of themselves without further precautions, then the condition is not unreasonably dangerous because the likelihood of harm is slight. This is true of the flight of ordinary stairs in a usual place in the daylight. *** The knowledge of the condition removes the sting of unreasonableness from any danger that lies in it, and obviousness may be relied in maintaining it. If plaintiff happens to be hurt by the condition, he is barred from recovery by lack of defendant's negligence towards him, no matter how careful plaintiff himself may have been. *** Baldauf v. Kent State Univ. (1988), 49 Ohio App.3d 46, 49 citing 2 Harper & James, Law of Torts (1974) 1489-1491, Section 27.13; see, also, Hand v. Paragon Steak House Rest. (June 14, 2000), Lorain App. No. 99CA007292, unreported, 2000 Ohio App. Lexis 2515; Orens v. Ricardo's Rest. (Nov. 14, 1996), Cuyahoga App. No. 70403, unreported, 1996 Ohio App. Lexis 4944; cf. McGowan v. St. Antoninus Church(Apr. 6, 2001), Hamilton App. No. C-000488, unreported, 2001 Ohio App. Lexis 1610. To construe a common and ordinary occurrence of everyday life as an issue of fact precluding summary judgment is disingenuous at best. To the contrary, reasonable minds could only conclude that appellant's inability to undertake a common and ordinary task such as negotiating a stairway at a restaurant was the proximate cause of her injury or, at the very least, that appellant's negligence -9- was greater than that of the restaurant's. Consequently, it was not error for the trial court to grant Wok With Wing's motion for summary judgment because there was no genuine issue of material fact on the issue of causation. Accordingly, appellant's sole assignment of error is without merit and is overruled. Judgment affirmed. -10- 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. TIMOTHY E. McMONAGLE PRESIDING JUDGE KENNETH A. ROCCO, J. and COLLEEN CONWAY COONEY, J., CONCUR. N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 clerk per App.R. 22(E). See, also, S.Ct. Prac.R. II, Section 2(A)(1). .