By Thomas Wolf

Ohio has long adhered to the open and obvious doctrine as a complete defense for defendants.  Over the years, the courts have created exceptions to the general rule.  Since at least 1984, the Ohio Supreme Court has recognized that attendant circumstances may create an issue of fact.   

The Ohio Supreme Court did not define attendant circumstances.  As a result, the various Courts of Appeals have addressed the issue on a case-by-case basis.  In perhaps one of the more often cited cases, the Second District Court of Appeals in Stockhauser v. Arch Diocese of Cincinnati acknowledged the difficulty in defining the terms.  In Stockhauser, the Court stated, "What may be an attendant circumstance *   *   * defies precise definition.  A list of such circumstances will be incomplete and probably would be supplemented by the next case.  It would include any distraction that would come to the attention of a pedestrian in the same circumstances and reduce the degree of care an ordinary person would exercise at the time.  All circumstances -- good or bad -- must be considered."  

The Courts of Appeals throughout Ohio have addressed attendant circumstances based upon the factual scenarios presented to them.  The courts have been mostly unanimous in finding that a plaintiff's actions cannot create an attendant circumstance sufficient to defeat a Motion for Summary Judgment.  However, in a recent case, the Eleventh District Court of Appeals, in a two to one decision, has acknowledged its break from the general consensus.   

In Gibson v. David J. Leber, dba Dairy Mart, the Eleventh District Court of Appeals reversed a granting of summary judgment for a premises owner.  The plaintiff was a frequent visitor to a Dairy Mart.  On the day in question, she parked in a different part of the parking lot than was her normal practice.  Despite the fact that there was no one parked next to her, plaintiff exited her car and stepped into a pothole, falling to the ground and striking her wrist.  Plaintiff claimed that her door blocked her view of the pothole, thus creating an attendant circumstance and an issue of fact for the jury.   

The trial court disagreed and granted summary judgment.  Plaintiff appealed. The Court of Appeals reversed and remanded for further determination.   

The Court of Appeals took the position that since attendant circumstances have not been defined by the Supreme Court, the actions of the plaintiff cannot be ignored. The court relied upon, in part, a Fifth District case where the Fifth District Court of Appeals found that attendant circumstances created an issue of fact when a patron carrying a pizza box tripped over a broken metal sign post.  The Fifth District Court, in contrast to the Fourth, Fifth and Tenth Districts, held that the plaintiff's actions must be considered as one of the attendant circumstances.   

The court relied upon the definition of attendant circumstances as "any distraction that would come to the attention of a pedestrian in the same circumstances and [reduce] the degree of care an ordinary person would exercise at the time."  The court found that definition did not exclude the actions of the plaintiff themselves, but rather tried to explain that the distraction was less the issue as was the lowering of the degree of care that an ordinary person would exercise.  The court also relied upon an analysis provided by the Second District Court of Appeals. 

The Second District did not hold that the actions of a plaintiff could create an attendant circumstance, but compared extreme circumstances, discussing how soapy water on the floor could be open and obvious under benign conditions, but may not under extreme conditions such as a shooter entering a store, causing a patron to run for his/her life.  The Eleventh District found this comparison to be instructive in analyzing all circumstances, regardless of the source.   

This decision acknowledges a split among the districts.  At this time, it is unknown whether the Supreme Court will address this issue, but until it does, there will be inconsistent application of Ohio law depending upon the district.  In the districts that find that plaintiff's action can create an attendant circumstance, expect to see fewer motions for summary judgment granted on the basis of open and obvious danger.  Currently, the Eleventh District clearly has accepted this doctrine, while the Fifth District may be willing to do so.  The balance of districts in Ohio still adhere to the prior rule.  

If you would like a full copy of the Court's Decision, or have any questions regarding premises liability, please contact any one of our Retail and Hospitality Practice Group members.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel. 


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