R E^;..._. W4 ^ C) noo CLERK OF COURT SUPREME CQURT OF NIn IN THE SUPREME COURT OF OHIO CASE NO CYNTHIA GATES, et al.,

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1 IN THE SUPREME COURT OF OHIO CYNTHIA GATES, et al., CASE NO vs. Plaintiffs-Appellants, ON APPEAL FROM CUYAHOGA COUNTY COURT OF APPEALS, EIGHTH APPELLATE DISTRICT SPEEDWAY SUPERAMERICA, LLC, Defendant-Appellee. COURT OF APPEALS CASE NO. CA MEMORANDUM IN OPPOSITION TO JURISDICTION BY APPELLEE SPEEDWAY SUPERAMERICA, LLC For Appellee Speedway SuperAmerica, LLC Bradley A. Wright ( ) Marshal M. Pitchford ( ) (COUNSEL OF RECORD) Roetzel & Andress, LPA 222 South Main Street Akron, OH Telephone: Facsimile: For Appellants Cynthia Gates and James Gates David M. Lynch ( ) (COUNSEL OF RECORD) Tungsten Road Euclid, OH Telephone: Facsimile: R E^;..._ W4 ^ C) noo CLERK OF COURT SUPREME CQURT OF NIn

2 TABLE OF CONTENTS PaQe TABLE OF CONTENTS :... i THIS IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST...1 STATEMENT OF THE CASE AND FACTS...2 ARGUMENT IN OPPOSITION TO APPELLANTS' PROPOSITIONS OF LAW...3 Appellants' Proposition of Law No. 1: The parking lot illumination rule does not extend to gas station service islands....3 CONCLUS ION...7 PROOF OF SERVICE...8

3 EXPLANATION OF WHY THIS IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST This case does not present an issue of public or great general interest. It certainly does not present this Court with any new or unique issue justifying a departure from the well reasoned decisions of this Court and numerous courts across the State of Ohio. Appellant Cynthia Gates, according to her testimony, fell when she stepped onto an open and obvious four foot long, half inch wide crack in the driveway portion of an outdoor Speedway SuperAmerica service station. She did not slip, she caught her foot. And the outdoor ambient lighting is a legal red herring based upon decades of precedent. I Contraly to Appellants' prediction in their Memorandum in Support of Jurisdiction, the failure of this Conrt to exercise jurisdiction here will not expose consumers to danger. The Eighth District Court of Appeals' decision recognized and followed the established precedent. Open and obvious defects bar liability. The "two-inch" rule bars liability. Appellants' desire to carve a fact-specific exception to long-standing rules of tort law is what would be ruinous. Appellants would have this Court believe that if the decision of the Appellate Court in this case stands, that retail patrons across Ohio will suddenly be wandering inside stores without any lighting. That is not the import of the decision in this case. That conclusion does not follow the facts presented here. The outdoor lighting rule applies. This case does not stand for the position that retail business invitees everywhere will go unprotected. The legal authority and reasoning behind the outdoor illumination rule is the same whether one is a retail patron in a lit parking lot or a lit service station. In almost whimsical fashion, Appellants look past the portion of the Eighth District's decision focusing on the open and obvious nature of the defect that caused Appellants' fall. Appellants also fail to report that the crack in the pavement was deemed an insubstantial defect

4 as a matter of law. The appellate court unanimously affirmed the trial court's entry of summary judgment because Appellant Gates testified she would have seen the crack had she been looking and that it was an insubstantial defect as a matter of law under Ohio's "two inch" rule. To accept and hear this case would be an exercise in redundancy. Appellee Speedway SuperAmerica LLC respectfully submits that this Court should decline to exercise jurisdiction over this appeal. STATEMENT OF THE CASE AND FACTS This case arises out of an alleged trip-and-fall incident that occurred outside a service station on the evening of November 19, It was about 6:45 p.m. and dark, a fact of whicli Appellant Cynthia Gates was well aware. As she had done on a weekly basis for the seven (7) previous years, Appellant Gates came to the Speedway SuperAmerica service station to purchase gas. She had visited this same Speedway station over a hundred times before without any incident. She described herself as a "regular." She was admittedly "familiar" with the premises in both daytime and nighttime conditions and at all times of the year. The night in question was no different- According to her deposition testimony, she found the outdoor service station, the raised center island with the soft-drink coolers and display racks, and the driveway pavement all as she had every other night. Tliings were "as usual." After pumping her gas, Mrs. Gates walked over to the soft-drink cooler on the raised island, stepped up onto the platform, and retrieved two bottles of iced tea. She turned and walked down the sidewalk/island approximately five steps toward the cashier's pay station. When she encountered a familiar display at the end of the island, she retreated approximately two steps, pivoted left, and, with her right foot, stepped down off the ledge. As she stepped off the curb, the right side of her right foot came in contact with a fourfoot-long, half-inch-wide crack. At this point, using Appellant Gates' words, the height- 2

5 differential between the two ledges was "miniscule." She then brought her left foot down from the raised island to the driveway/parking lot surface, lost her balance, "teetered" for a few seconds, and fell. Appellant Gates conceded that there was nothing distracting her attention at the time of her fall. Nothing obstructed her view of the crack. Appellants then brought suit and claimed that Speedway was negligent in lighting the outdoor service station and that the curb and crack constituted an actionable defect/danger. The trial court determined that these claims failed as a matter of law, and the appellate court agreed.' ARGUMENT IN OPPOSITION TO APPELLANTS' PROPOSITION OF LAW Annellants' Proposition of Law THE PARKING LOT ILLUMINATION RULE DOES NOT EXTEND TO GAS STATION SERVICE ISLANDS. Under Ohio law, no duty to provide a particular level of outdoor lighting exists. Recognizing that Appellants' argument was a red herring, both the trial and appellate courts concluded that "no evidence" was brought forth to create a "material" factual dispute. Speedway moved for and was awarded summaiy judgment because Appellants asserted that the company had a duty to provide a minimum level of outdoor lighting. Ohio law has no such requirement. Sheetz v. Kentwood, Inc., 152 Ohio App.3d 20, 2003-Ohio-1209, at 9. See, also, Provateare v. Hausman Co. (Apri129, 1999), 8th Dist. No , 1999 WL at *2; Schneider v. Associated Estates Realty (Mar. 4, 1999), 8th Dist. No , 1999 WL "Not only is there no duty to light a parking lot, there is no precedent that once some light is provided, the owner of the premises has a duty to provide `adequate' lighting." Meilink v. AAA 1 Appellate Cynthia Gates claimed personal injuries while her husband, James Gates, advanced a loss of consortium count. Because the loss of consortium count was derivative, summary judgment on it was proper too. 3

6 Northwest Ohio (Dec. 4, 1998), 6th Dist. No. L , 1998 WL at *2. As one court expressed years ago: Darkness is nature's own warning to arouse the natural instinct of selfprotection, the first law of nature. Indifference to such an instinct is a clear violation of a fundamental law, and should be, under circumstances like those of the instant case, more impressive and convincing than a sign "Danger," nailed to the door. ***[It constitutes] such contributory negligence as should prevent recovery in law. To hold a contrary doctrine would be to declare that in times and places of danger a person is not responsible for the proper use of his faculties, and so to decide would be to say that one is not held to the exercise of reasonable care and prudence. (Emphasis supplied). Central Pub. House of Reformed Church in the U.S. v. Flury (1927), 25 Ohio App. 214, 227. Courts have reaffirmed that rationale over the ensuing decades and into the present century, adopting the rule that disregarding the warning of darkness may preclude the recovery of damages for personal injury. Jeswald v. Hutt (1968), 15 Ohio St.2d 224, 239 N.E.2d 37, paragraph three of the syllabus, ("Darkness is always a warning of danger, and for one's own protection it may not be disregarded."); Witt v. Saybrook Investment Corp., 81h Dist. No , 2008-Obio-2188, 21, citing Klauss v. Marc Glassman, Inc., 8`h Dist. No , 2005-Ohio- 1306, 18; Rezac v. Cuyahoga Falls Concerts, Inc., 9t1i Dist. No , 2007-Ohio-703; Leonard v. Modene and Assoc., Inc., 6`h Dist. No. WD , 2006-Ohio-5471; Swonger v. Middlefield Village Apts., 11`h Dist. No.2003-G-2547, 2005-Ohio-941, 13 ("[s]ince darkness itself constitutes a sign of danger, the person who disregards a dark condition does so at his or her own peril"); McCoy v. Kroger Co., 10th Dist. No. 05AP-7, 2005-Ohio-6965, at 16 ("darkness increases rather than reduces the degree of care an ordinary person would exercise"); Maier v. Northern Ohio Food Terminal, 8h Dist. No , 2005-Ohio-5342, at

7 The amount of outdoor light, even if less than total darkness, still falls within the open and obvious doctrine. Because there was no material factual dispute, the trial court correctly concluded that Appellants had failed to offer any evidence to defeat sununary judgment. Additionally, summary judgment was properly entered for the additional reason that the height difference between the pavement levels was less than 2 inches. Any alleged difference amounted to a trivial defect, and "no liability exists for minor imperfections in the surface of such a parking area - those slight irregulanties reasonably to be anticipated in any traveled surface." Jeswald, 15 Ohio St.2d 224 at paragraph two of the syllabus. Appellant cited an uneven crack in the pavement, where her foot at some point was "kind of straddling." However, Ohio courts have held that both an uneven crack in a walkway and a ridge where separate portions of a paved parking lot come together are trivial defects for which no liability arises. See id. at 226; Henry v. Marriott Hotel Services, Inc., 2 nd Dist. No , 2003-Ohio Indeed, if the height differential is less than two inches, it is considered insubstantial as a matter of law, and business owners have no duty to repair it. Henry, 2003-Ohio-4840, at 7-8; see, also, Helms v. American Legion, Inc. (1966), 5 Ohio St.2d 60; Kimball v. Cincinnati (1953), 160 Ohio St Notably, any argument that "dim" lighting aggravated the alleged defect also lacks merit. "[E]ven if the lighting was dim, poor lighting alone cannot transform a minor defect into a substantial one." Henry, 2003-Ohio-4840, at 14. Thus, regardless of any so-called inadequate outdoor ambient lighting, a trivial defect remains just that: trivial. The crack was only a half-inch wide, and at most one-and-one-quarter inch high. The unevenness in the pavement it caused was, according to Plaintiff's own mind and undisputed testimony, "miniscule." There were no distractions, no view obstructions, and no attendant 5

8 circmnstances to alter its trivial nature. Such a crack is common and to be expected on the premises of a busy gas station. Thus, there is no basis for liability as a result of Appellant catching her foot in the crack. Summary judgment was proper and should stand. The Eighth District joined the ranks of appellate districts across the state upholding the no duty to light rule. The appellate court relied on the decisions in Ashbaugh v. Family Dollar Stores, 4 i App. No. 99 CA 11 (7an. 20, 2000); Scheetz v. Kentwood, I:ic., 152 Ohio App.3d 20, 2003-Ohio-1209; and Meilink v. AAA Northeast Ohio, 6`h Dist. No. L (Dec. 4, 1998) in reaching its conclusion and echoed the holding of those courts. The Eighth District Decision in this case is just one more in the uniform line of cases. This Court should reject Appellants' invitation to erode basic tenets of tort law properly applied by the lower courts. In fact, it is Appellants who suggest a departure from well established principles of tort law and this Court's precedent. In this regard, Appellants impose a phantom distinction between parking lots and the driveways at service stations. This is a distinction without a difference. The logic behind the outdoor lighting rule applies with equal force to retail parking lots and outdoor service stations and their apparatus. In both circumstances, business invitees are outside facing the elements and the circumstances nature presents. The bedrock of this Court's decision in Jeswald v. Hutt (1968), 15 Ohio St.2d 224 and the appellate courts' decisions in Asbaugh and Scheetz, (the only two cases cited by Appellants), is that there is no duty to provide a minimum level of outdoor lighting. Given the clarity and consistency of Ohio law with respect to this issue, no purpose would be served by this Court's exercise of discretionary jurisdiction

9 CONCLUSION In the end, there is no great public or general interest in this case. Only the interests of the litigants would be affected by this Court's acceptance of jurisdiction. Ohio law already has overwhelming precedent on the sole issue raised by Appellants, and the very suggestion that the Eighth District's decision was an aberration that will have disastrous, unintended consequences is completely baseless. Courts across Ohio have uniformly resolved the issue in a manner consistent with the Eighth District's decision in this case, and this Court should not disturb the appellate court's well-reasoned decision on this issue. Both the trial court and the Eighth District faithfitlly applied the controlling law. Appellee Speedway SuperAmerica, LLC respectfully requests that this Court decline to exercise discretionary jurisdiction over this appeal. Bradley A. Wright ( ) bwright@ralaw.com Marshal M. Pitchford ( ) mpitchford@ralaw.com Roetzel & Andress, LPA 222 South Main Street Akron, OH Telephone: Facsimile: Attorneys for Appellee/Defendant Speedway SuperAmerica, LLC 7

10 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and accurate copy of the foregoing has been ^/^6- served upon the following parties via regular U.S. Mail, postage prepaid this..5`^ day of December, 2008: For Appellants Cynthia Gates and James Gates David M. Lynch ( ) COUNSEL OF RECORD Tlmgsten Road Euclid, OH Bradley A. Wright Marshal M. Pitchford Counsel for Appellee Speedway SuperAmerica, LLC 8