Ohio’s Fifth District Court of Appeals is apparently no friendlier towards slip-and-fall plaintiffs than other appellate districts in our great state. Following the same pattern as Darah v. Coaching by Kurt, L.L.C. and Lattimore v. K & A Market, Inc., the Fifth District affirmed the Stark County Court of Common Pleas’ decision granting summary judgment to the Defendants in the case of Bovetsky v. Marc Glassman, Inc., 2016-Ohio-7863.
The basic facts were as follows:
{¶2} On September 30, 2015, Appellants Joyce and Ronald Bovetsky visited
Appellee Marc Glassman, Inc.’s (“Marc’s”) Belden Village retail establishment. Appellants
parked their vehicle in the front parking lot to the left of the store entrance. Ronald
Bovetsky immediately proceeded into the store. Joyce Bovetsky walked from their vehicle
directly to the sidewalk where she stopped to look at a display of pumpkins which was
located on the sidewalk. Joyce Bovetsky entered the sidewalk at a point which was level
with the parking lot. She walked approximately 21 feet down the sidewalk to the display
of pumpkins. 

{¶3} Joyce Bovetsky removed three pumpkins from the display and placed them
on the ground. She then took several steps backwards to assess the comparative size
of the pumpkins. Joyce Bovetsky did not look behind her as she stepped back. As she
was stepping backwards, one of her feet landed half on the sidewalk and half on the
parking lot, causing her to fall. At the point of her fall, there was a four to four and onehalf
inch difference in height between the sidewalk and the parking lot. Joyce Bovetsky
sustained injuries as a result of the fall. 

The Court does not expounded on Ms. Bovetsky’s injuries, so it is unclear how serious they were. I would be interested to know. However, it technically would not have been relevant to the Court’s analysis regarding the “open-and-obvious” doctrine. The Court explained the open-and-obvious doctrine, noting that “in slip-and-fall cases, courts have determined a
person does not have to actually see the dangerous condition prior to the fall in order for
the condition to be open and obvious, and courts have found no duty to warn existed
where the condition could have been seen had a person looked.” Ms. Bovetsky testified as follows in her deposition:


Q. Okay. So, so – but your testimony is you entered the sidewalk
when it was flush with the  
parking lot. 

A. Correct. 

Q. – correct?
How many inches would you say that curb was higher than the
parking lot where you fell? 

A. Four, four and a half. 

Q. Okay. Would you agree with me that’s something pretty easy to
see if you’re looking at it? 

A. Only if you’re looking at it.
* * * 

Q. And you would have walked all the way down that sidewalk as the
sidewalk raised up off the parking lot, correct? 

A. Correct. 

Q. And at any time had you looked down you could have seen the
difference, correct?
 

A. If I would have looked down, yes. 

The Court made the following determination:
{¶16} By her own testimony, Joyce Bovetsky established the elevated difference
between the sidewalk and the parking lot was readily observable if she had looked. The
issue is not whether Marc’s could have taken additional precautions to warn of the
elevation differential of the sidewalk, but whether a reasonable person under the
circumstances would have observed the condition
. See, e.g., Knight v. Hartville
Hardware, Inc., Stark App. No. 2015CA00121, 2016-Ohio-1074. Under these
circumstances, we find reasonable minds could only conclude the height difference
between the sidewalk and the parking lot was open and obvious. 

Ms. Bovetsky’s only possible way to save her case was to establish that the pumpkin display constituted “attendant circumstances.” The Court explained:
{¶17} However, attendant circumstances can create an exception to the open and
obvious doctrine and render summary judgment inappropriate. Johnson v. Regal
Cinemas, Inc., 8th Dist. Cuyahoga No. 93775, 2010-Ohio-1761, 2010 WL 1611010, ¶ 23.
An “attendant circumstance” is “any significant distraction that would divert the attention
of a reasonable person in the same situation and thereby reduce the amount of care an
ordinary person would exercise to avoid an otherwise open and obvious hazard.” Haller
v. Meijer, Inc., 10th Dist. Franklin No. 11AP–290, 2012–Ohio–670, ¶ 10. 

{¶18} For this exception to apply, “[a]n attendant circumstance must divert the
attention of the injured party, significantly enhance the danger of the defect, and
contribute to the injury.” Forste v. Oakview Constr., Inc., 12th Dist. Warren No. CA2009–
05–054, 2009–Ohio–5516, 2009 WL 3350450, ¶ 22; Isaacs v. Meijer, Inc., 12th Dist.
Clermont No. CA2005–10–098, 2006–Ohio–1439, 2006 WL 766692, ¶ 16. Attendant
circumstances may include such things as the time of day, lack of familiarity with the route
taken, and lighting conditions. Hart v. Dockside Townhomes, Ltd., 12th Dist. Butler No.
CA2000–11–222, 2001 WL 649763, *2 (June 11, 2001). Further, an attendant circumstance is a circumstance which contributes to the fall and is beyond the control of
the injured party. Backus v. Giant Eagle, Inc. (1996), 115 Ohio App.3d 155, 158, 684
N.E.2d 1273.
The Plaintiffs “argue[d] the pumpkin display was an
attendant circumstance because Marc’s situated the display outside of the store with the
intent to draw its customers’ attention to these items and entice them to buy the pumpkins,
thereby increasing Marc’s profits.” The Court actually acknowledged that “reasonable minds could disagree (when considering the
evidence in the light most favorable to Appellants) whether the pumpkin display
constituted attendant circumstances.” This would render summary judgment inappropriate. However, the Court took the analysis one step further:
{¶20} While we find reasonable minds could disagree (when considering the
evidence in the light most favorable to Appellants) whether the pumpkin display
constituted attendant circumstances, our analysis does not stop there. We must
determine what, if any, effect her removing three pumpkins from the display and then
taking several steps backwards, without turning around, has on whether the attendant
circumstances exception to the open and obvious doctrine still applies. We find it does
not in this case. 

{¶21} The pumpkin display was not the proximate cause of Joyce Botevsky’s fall.
Her independent act of removing three pumpkins from the display placing them on the
sidewalk and then stepping backward, without looking, to observe them broke the causal
connection between any attendant circumstances the display may have provided and her ultimate fall. There can be no dispute her actions were the proximate cause of the fall
and were beyond the control of the premises owner. 
Wait a minute. This is actually an interesting issue. The Court is saying that the cause of the fall was Ms. Botevsky’s act in putting the pumpkins on the sidewalk and stepping backward to look at them, rather than the pumpkin display itself. For the sake of argument, one could argue that the proximate cause of a fall would presumably always be something other than the actual item that constitutes the attendant circumstance itself. For instance, if the attendant circumstances in a case were time of day, lack of familiarity with the route taken or lighting conditions, the true cause of the fall would still be the underlying dangerous condition – i.e., a curb that is lower than a sidewalk, or an icy sidewalk – or at least the combination of dangerous condition plus attendant circumstance diverting attention from it. However, at the same time, just looking at the pumpkins would not have caused someone to fall in the way that Ms. Botevsky fell – the Court is correct that she fell after taking pumpkins down, setting them next to each other, and stepping backwards to observe them side-by-side. That was her own action. But at the same time, is it foreseeable that a customer would do that? Is that an issue for a jury to decide? Does the attendant circumstances exception not apply if the person who gets hurt uses or does something with the item that constitutes the attendant circumstance? (The Court did not cite any case law on this point.)
Close calls generally go to the Defendant in Ohio slip-and-fall cases, and this case simply reflects that.

Written by Alex J. Durst, a Cincinnati, Ohio-based employment attorney, civil litigation attorney, appellate attorney and divorce attorney with Croskery Law offices. He is licensed to practice in Ohio state courts and the United States District Court for the Southern District of Ohio, as well as other state and federal courts by permission on a case-by-case basis (most recently, Kentucky, the United States District Court for the Southern District of Indiana, California, Nevada, Massachusetts and Florida). Alex can be contacted by phone at (513) 338-1947 or by email at adurst@croskerylaw.com.

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