Decisions from Ohio Courts (August 2007 - October 2007)

Open and Obvious Doctrine

Galinari v. Koop, 2007-Ohio-4540 (12th App. District)

• Negligence, diving, shallow water, open and obvious, attendant circumstances

• In negligence action arising from severe injury to plaintiff as the result of diving into shallow water in lake owned by defendants, summary judgment for defendants was proper where the depth of the water was an open and obvious condition and there were no attendant circumstances to prevent the application of the open and obvious doctrine.

Trimble v. Frisch's Ohio, Inc., 2007-Ohio-4616 (2nd App. District)

• Negligence, slip and fall, business invitee, open and obvious doctrine

• Plaintiff was visiting a Golden Corral Restaurant in Springfield when she stepped onto a ceramic tile floor in front of the breakfast bar and slipped and fell on water that was standing on the floor. Trimble sustained injuries to her head and knees as a result of the fall.

• Although an occupier of premises is not liable for dangers from natural accumulations of ice and snow which are generally so obvious and apparent that an invitee would discover those dangers and protect himself against them, in this case, the court held that "by its nature water is not reasonably expected to exist on a floor of this kind.

Friel v. Shonebarger 2007 WL 1652018 (5th App. District)

• Plaintiff performing truss inspection fell through a hole in the floor, an empty stair box, and landed on the basement floor beneath, sustaining injuries.

• Held that reasonable minds could differ and that a jury must decide whether a hole covered with an opaque tarp on a construction site would be considered open and obvious to a home inspector doing a truss inspection on the home.

Motor Vehicle Accident

Deem v. Columbus S. Power Co., 2007-Ohio-4404 (4th App. District)

• Negligence, contributory negligence, guy wire collision, proximate cause

• In negligence action arising from injuries incurred when all-terrain vehicle collided with guy-wire attached to power pole on plaintiff's property, summary judgment for utility was proper because contributory negligence far outweighed defendant's negligence; plaintiff knew of danger and failed to guard against it, former R.C. 2315.19(A)(2), knew where wires were located, drove by them twice a day while driving up and down his driveway, mowed lawn and trimmed weeds around them and rode his all-terrain vehicle in general area of pole on regular basis.

Birch v. Heropulos, 2007-Ohio-4252 (5th App. District)

• Negligence, auto-motorcycle, lawful operation, failure to yield, R.C. 4511.28

• In motorcycle-automobile accident negligence action, arising from collision with auto turning left at same time motorcycle was turning right into same gas station, summary judgment for auto driver was proper where motorcyclist was not operating lawfully so as to require auto to yield on left turn, R.C. 4511.42(A); motorcyclist was passing stopped vehicles on the right and none of passed vehicles were turning left or being overtaken by motorcyclist.

Lasley v. Nguyen, 2007-Ohio-4086 (2nd App. District)

• Negligence, auto accident, proximate causation, injury, witnesses

• In auto accident negligence action, directed verdict for defendant was proper because plaintiff failed to produce supporting expert testimony of proximate cause of injuries; plaintiff was clearly qualified to testify to nature and extent of her injuries but not their proximate cause where plaintiff had long and storied history of neck and back injuries for the 12 years prior to accident, including prior, recent, unrelated workers' compensation claim wherein plaintiff claimed constant and reoccurring pain in neck, shoulders and lower back.

Slip and Fall

Lewin v. Lutheran W. High School, 2007-Ohio-4041 (8th App. District)

• In negligence action, arising from slip and fall in hole in parking lot at football game, summary judgment for high school and construction company was error where plaintiff knew when she fell, how she fell and that it was near dumpster, and dispute was as to exactly how she fell.

LaFollette v. Taylor Bldg. Corp. of Am., 2007-Ohio-4085 (2nd App. District)

• In negligence action for slip and fall, summary judgment for landowner was proper where hole was open and obvious hazard and plaintiff only stepped into it because he was walking backward without looking where he was going; hole was nearly two feet wide, prominent, impossible to miss from a casual inspection of the ground and plaintiff was neither forced nor encouraged to walk backward while examining model home.

Burdette v. Stevens, 2007-Ohio-4604 (5th App. District)

• Negligence, slip and fall, social guest, open and obvious

• In negligence action, arising from fall through trapdoor to basement in defendants' home, summary judgment for defendants was proper on open and obvious doctrine grounds, where 2.5-foot by 5-foot hole in floor in front of picture that caught victim's eye could readily be seen from two feet away.

The preceding case summaries have been adapted in part from Ohio State Bar Association Reports.