JUN U MARCIA J. CLERK SUPREME C(Jkiat' i) : OHIO IN THE SUPREME COURT OF OHIO. Fred Campbell, Ohio Supreme Court Case No

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1 IN THE SUPREME COURT OF OHIO Fred Campbell, vs. Appellant, WEA Belden LLC dba Westfield Shoppingtown Belden Village, Ohio Supreme Court Case No C.A. Case No CA 0206 C.P. Case No CV Appellee. MEMORANDUM IN OPPOSITION TO JURISDICTION OF APPELLEE WEA BELDEN LLC DBA WESTFIELD SHOPPINGTOWN BELDEN VILLAGE Michael J. Manahan ( ) MANAHAN, PIETRYKOWSKI, DELANEY & WASIELEWSKI 414 North Erie Street PO Box 2328 Toledo, Ohio Phone Fax mmanahan@mpdwlaw.com Attorney for Appellee David A. Van Gaasbeek ( ) 1303 West Maple Street Suite 104 North Canton, Ohio Phone Fax Dvangaasbe@aol.com Attorney for Appellant JUN U MARCIA J CLERK SUPREME C(Jkiat' i) : OHIO

2 TABLE OF CONTENTS NO SUBSTANTIAL CONSTITUTIONAL ISSUE IS PRESENTED IN THIS APPEAL AND THE CASE PRESENTS NO ISSUE OF GREAT OR GENERAL PUBLIC INTEREST... 3 STATEMENT OF THE CASE... 5 STATEMENT OF FACTS... 5 APPELLEE'S RESPONSE TO PLAINTIFF-APPELLANT'S FIRST PROPOSITION OF LAW... 7 APPELLEE'S PROPOSITION OF LAW NUMBER 1 7 The open and obvious doctrine remains viable in Ohio with respect to claimed liability of store owners or operators for injuries sustained by a customer who slips and falls on a store floor which has become wet and slippery due to ice, snow, or water tracked in from the outside by other patrons due to wintery weather conditions. The nature of the hazard of tracked in water, snow or ice from wintry conditions serves as its own warning in areas of proximityto the entrances to stores where customers reasonably can expect to confront the hazard. CONCLUSION CERTIFICATE OF SERVICE

3 NO SUBSTANTIAL CONSTITUTIONAL ISSUE IS PRESENTED IN THIS APPEAL AND THE CASE PRESENTS NO ISSUE OF GREAT OR GENERAL PUBLIC INTEREST This appeal concerns a slip and fall caused by tracked in snow or water from winter weather conditions in Ohio. Appellant slipped and fell from tracked in snow or water at the Westfield Shoppingtown Belden Village Mall in Canton. He slipped and fell as he stepped 2 to 3 feet off the entrance mat to the Mall. It was January and snowing on the day the incident occurred. There is no dispute the water on which Appellant slipped and fell was tracked in by other patrons to the Mall due to snowy conditions. Appellant had been a resident of Ohio his entire life and had shopped at Belden Village in all weather conditions for over 20 years. Appellant Fred Campbell has claimed that Appellee WEA Belden LLC is liable in negligence for the fall and his injuries. The trial court granted appellee summary judgment as to appellant's claims and the Fifth District Court of Appeals affirmed. The proposed appeal to this court, however, involves no claimed error that the courts below failed to follow the well established existing precedent as to liability of shopkeepers for injuries to their customers due to tracked in water or snow from winter weather conditions in Ohio. Rather, Appellant seeks a change of law - a complete alteration of the open and obvious doctrine in a manner recently rejected by this Court in Armstrong v. Best Buy Co., Inc. (2003), 99 Ohio St.3d 79, 2003-Ohio In Armstrong v. Best Buythe Supreme Court considered a conflict between courts of appeal on the application of the open and obvious doctrine. The certified question in the case was "Whether Texlerv. D.O. Summers Cleaners & Shirt Laundry Co. (1998), 81 Ohio St.3d 677, abrogated the open and obvious doctrine as a complete bar to recovery and instead, required that comparative negligence be applied to determine liability." Id. at 14. In Armstrong v. Best Buythis Court ruled that the open and obvious doctrine remained a -3-

4 complete bar to recovery and that no comparative negligence analysis was involved in determining liability where the open and obvious doctrine applied.!d. The Court rejected the comparative negligence analysis espoused in the certified conflict case of Schindler v. Gale's Superior Supermarket, Inc. (2001), 142 Ohio App.3d 146,754 N.E.2d 298 by name in the opinion. Armstrong v. Best Buy, at 7. The Court ruled that the issue of liability under the open and obvious doctrine is addressed to the issue of whether the defendant owed any duty as to the open and obvious condition and that the analysis espoused by the Schindler court and others promoting comparative negligence analysis "prematurely reached the issues of fault and causation." Armstrong v. Best Buy, at 11. In the proposed appeal of this case, Appellant seeks to reargue Schindler, to "abrogate" the open and obvious doctrine in slip and fall cases, and to establish a comparative negligence standard analysis to establish shopkeeper liability in slip and fall actions. Plaintiff's Proposition of Law #1. Defendant-Appellee WEA Belden LLC respectfully submits that no substantial constitutional question is presented in the proposed appeal and that this case presents no issue of public or great general interest. The issue of whether the open and obvious doctrine constitutes a complete bar to recovery and whether comparative negligence analysis is necessary to determine liability in open and obvious cases has been recently decided by this Court in Armstrong v. Best Buy. Judicial economy and stare decisis alone support denial of this appeal. The issue presented on this appeal was fully briefed and decided in June of In Westfield Ins. Co. v. Galatis (2003), 100 Ohio St.3d 216,2003 Ohio 216 the Court outlined a three step analysis required to overrule controlling precedent due to stare decisis. This appeal does not present an issue of law that would meet that standard. The application of the open and obvious standard as a complete bar to personal injury claims -4-

5 arising from tracked in snow or water from winter conditions in Ohio is fully supported under longstanding legal principles in Ohio. The rule of law is workable. There have been no changes in circumstances presenting a compelling reason to abandon the precedent. Tracked in snow or water is a risk created by weather conditions and not by any action of shopkeepers. It is the type of risk the shopkeepers can reasonably expect their patrons to know and appreciate and protect themselves against. Appellee respectfully submits that discretionary appeal to this court should be declined. STATEMENT OF THE CASE This is an action for personal injuries allegedly sustained in a slip and fall at the Westfield Shoppingtown Belden Village Mall on January 6, Plaintiff's original complaint was filed on January 4, 2005 and subsequently amended. The amended complaint sets forth a claim against the defendant-appellee WEA Belden Village LLC dba Westfield Shoppingtown Belden Village in negligence for the slip and fall of plaintiffappellant Fred Campbell. Campbell alleges in the amended complaint that he "slipped on water" and fell to the floor injuring himself. Amended complaint at 5. It is alleged in the complaint that the waterwas "due to patrons tracking in snow from the outside of the mall". Amended complaint at 6. The action was filed in the Stark County Court of Common Pleas. The Defendant- Appellee filed a motion for summary judgment. In an opinion and order filed on July 14, 2006, Judge Charles E. Brown, Jr. granted the motion. On April 2, 2007, the Fifth District Court of Appeals affirmed. This appeal has followed. STATEMENT OF FACTS A clear and concise statement of the facts in this case was provided by Judge Charles E. Brown, Jr. of the Stark County Court of Common Pleas in the judgment entry of July 14, 2006 which ruled on the motion for summary judgment: -5-

6 Brief Statement of Facts This case arises from a slip and fall that occurred in the entrance of Belden Village Mall located near the store "The Finish Line" on or about January 6, As Plaintiff Fred Campbell entered the mall through the second set of double doors, he stepped on a mat and proceeded to walk towards "The Finish Line" store. After walking a few steps off the mat, either two or three feet, Plaintifrs feet cam out from underneath him and he fell. [Plaintiff's Deposition at pages 52 and 59.1 After he fell, Plaintiff noticed that floor was wet and that there were water puddles in the area where he fell. [Plaintiff's Depositions at pages Plaintiff testified that while he did not see the water accumulation on the floor, there was nothing obstructing his ability to view the water.[plaintiff's Deposition at page 51.] There is no dispute that on January 6, 2003, it was snowing and there was snow covering the ground. There is, however, conflicting testimony as to whether there were wet floor signs posted and whether maintenance personnel were mopping up the water at the time of the PlaintifPs fall. Plaintiff has been a resident of Ohio his entire life, growing up and residing in the Canton area. [Plaintiff's Depositions at pages 8 and 22.] Plaintiff testified that he has been shopping at Belden Village over 20 years, and in all weather conditions such as ice, snow, water and rain.[plaintiff's Depositions at page 37.]" Stark County Common Pleas Judgment Entry of July 14, 2006 at p. 3. The undisputed facts establish that the slip and fall occurred in the immediate proximity of entrance to the mall. The appellant had testified that he fell approximately 2 or 3-feet from the entrance mat. Campbell depo p. 59. Plaintiff's amended complaint specifically alleged that he slipped and fell due to water on the floor tracked in by other patrons of the mall. Amended complaint at 5-6. It is also undisputed that appellant Campbell saw water on the floor after he fell. Campbell depo p. 62. He had an unobstructed view of the area when he fell. Campbell depo p. 51. It is also undisputed that the plaintiff-appellant Campbell knew that it had been snowing on the day he fell and that there were areas outside in proximity to the mall that were snow covered and others wet.

7 APPELLEE'S RESPONSE TO PLAINTIFF-APPELLANT'S FIRST PROPOSITION OF LAW APPELLEE'S PROPOSITION OF LAW NUMBER 1 The open and obvious doctrine remains viable in Ohio with respect to claimed liability of store owners or operators for injuries sustained by a customer who slips and falls on a store floor which has become wet and slippery due to ice, snow, or water tracked in from the outside by other patrons due to wintery weather conditions. The nature of the hazard of tracked in water, snow or ice from wintry conditions serves as its own warning in areas of proximity to the entrances to stores where customers reasonably can expect to confront the hazard. Ohlo law I well a tahlichad rnnr prn nn e Ma mee E+a anfi operators of shopkeepers to patrons lawfullyon the premises for injuries caused bytracked in snow, water, or ice by other patrons due to weather conditions. In 1927, this court issued the decision of S.S. Kresge Co. v. Fader (1927), 116 Ohio St.718. The case addressed the claimed liability of a storekeeper for customers who slip on a floor that had become wet by incoming customers during a rainstorm. In the case, this court recognized that "everybody knows" of the risk of tracked in water from weather conditions: Owners or lessees of stores, office buildings, banks, hotels, theaters, or other buildings where the public is invited to come on business or pleasure, are not insurers against all forms of accidents that may happen to any who come. Everybody knows that the hallways between the outside doors of such buildings and the elevators or business counters inside the building during a continued rainstorm are tracked all over by the wet feet of people coming *724 from the wet sidewalks, and are thereby rendered more slippery than they otherwise would be. The same thing is true in the hallways of all post offices. S.S. Kresge Co. v. Fader, 116 Ohio St. at In view of the fact that "everybody knows" the risk of adverse weather conditions due to rain, the Supreme Court held in S.S Kresge Co. v. Fader that the shopkeeperwas not liable for a slip and fall caused in by tracked in rain by other customers in a rainstorm. The hazard was deemed open and obvious that shopkeepers do not have a duty to "mop up the rain as fast as it falls or blows in, or is carried in by the wet feet or clothing or

8 umbrellas" of other customers. Id. The open and obvious nature of the hazzard acted as a complete bar to a claim in negligence against the shopkeeper for injuries due to tracked in water. In Boles v. Montgomery Ward & Co. (1950), 153 Ohio St.381, the Supreme Court reaffirmed the S.S. Kresge Co. v. Faderdecision. The Court is referred to syllabus #1 and #2 of the opinion: 1. The owner or operator of a store who invites the public into his nramicac tn t x nnr an 15L arn nair cara Bb owes the duty to exercise ordinary care to maintain his premises in a reasonably safe condition for the protection of such invitees. 2. Ordinarily, no liability attaches to a store owner or operator for injury to a patron who slips and falls on the store floor which has become wet and slippery by reason of water and slush tracked in from the outside by other patrons. Boles v. Montgomery Ward & Co. Court syllabus #1 and #2. In 1960, the Supreme Court issued the decision is Sidle v. Humphrey (1960), 13 Ohio St.2d 45. The case involved injuries due to a slip and fall down icy front steps in winter due to a natural accumulation of ice and snow. The case involved the issue of common law duties owed to a business invitee by an owner or occupier of the premises due to natural conditions. The Supreme Court in Sidle held that the danger of ice and snow in an obvious dangerthatthe owner or occupier of premises may reasonable expect an invitee to discover and protect himself against: The danger from ice and snow is an obvious danger and an occupier of premises should expect that an invitee on his premises will discover and realize that danger and protect himself against it. Sidle v. Humphrey, 13 Ohio St.2d at 49 In the decision, the Supreme Court in Sidle quoted as authority the following reasoning from City of Norwalk v. Tuttle (1906), 73 Ohio St. 242 at p.245: "In a climate where the winter brings frequently recurring storms of snow and -8-

9 rain and sudden and extreme changes in temperature, these dangerous conditions appear with a frequency and suddenness which defy prevention and, usually, correction. Ordinarily they disappear before correction would be practicable ***. To hold that a liability results from these actions of the elements would be the affirmance of a duty which it would often be impossible, and ordinarily impracticable *** to perform." In 1985, the Supreme Court issued its opinion in Paschal v. Rite Aid Pharmacy, Inc., (1985), 18 Ohio St.3d 203. The case involved tracked in ice and snow that caused a slip and fall of a customer on crutches inside a pharmacy. In the decision, the Supreme Court approved and followed Sidle v. Humphrey, Boles v. Montgomery Ward & Co. and S.S. Kresge Co. v. Faderand held that risk associated to tracked in ice and snow are open and obvious hazards for which customers could reasonably be expected to discover and protect themselves against. {1}[2] A shopkeeper owes business invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition so that its customers are not unnecessarily and unreasonably exposed to danger. See Campbell v. Hughes Provision Co. (1950), 153 Ohio St. 9, 90 N.E.2d 694 [41 O.O. 107]. A shopkeeper is not, however, an insurer of the customer's safety. Further, a shopkeeper is under no duty to protect business invitees from dangers "which are known to such invitee or are so obvious and apparent to such invitee that he may reasonably be expected to discovery them and protect himself *204 against them." Sidle v. Humphrey(1968), 13 Ohio St.2d 45, N.E.2d589 [42 0.O.2d 96], paragraph one of the syllabus. [3] Appellant argues that appellees breached their duty of ordinary care by not eliminating, or warning appellant of, the puddle that appellant allegedly slipped in. This court has dealt with this exact issue in S.S. Kresge Co. v. Fader(1927), 116 Ohio St. 718, , 158 N.E. 174, in which we stated: "Owners or lessees of stores, *"`* are not insurers against all forms of accidents that may happen ***. It is notthe duty of persons in control of such buildings to keep a large force of moppers to mop up the rain as fast as it falls or blows in, or is carried in by wet feet or clothing or umbrellas, for several very good reasons, all so obvious that it is wholly unnecessary to **476 mention them here in detail." See, also, Boles v. Montgomery Ward & Co. (1950), 153 Ohio St. 381, 92 N.E.2d 9 [41 O.O. 403], paragraph two of the syllabus ("Ordinarily, no liability attaches to a store owner or operator for injury to a patron who slips and falls on the store floor which has become wet and slippery by reason of water and slush tracked in from the outside by other patrons."); Rayburn v. J. C. Penney Outlet Store (1982), 3 Ohio App.3d -9-

10 463, 445 N.E.2d Paschal v. Rite Aid Pharmacy, Inc. 18 Ohio St.3d 203 at pp On June 4, 2003, the Supreme Court issued its decision in Armstrong v. Best Buy Co., Inc. In the case, the Court reaffirmed the viability of the open and obvious doctrine and cited, with approval, the precedent of Sidle v. Humphrey and Paschal v. Rite Aid Pharmacy, Inc. The certified question on the appeal was "Whether Texler v. D.O. Shirt I aundrv Co f Jhio St 3d 877 ahrnnatari tha ndp.11 and obvious doctrine as a complete bar to recovery and instead, required that comparative negligence be applied to determine liability?" Armstrong v. Best Buy Co., Inc. At 4. In Armstrong the court ruled that the open and obvious doctrine constitutes a complete bar to recovery and that no comparative negligence analysis is necessary to determine liability in such an action. The certified conflict case in Armstrong was Schindler v. Gale's Superior Supermarket, Inc. (Cuyahoga County 2001), 142 Ohio App.3d 146. Armstrong at 6. In Schindlerthe Court of Appeals had adopted an approach to "analyze the openness and obviousness of a hazard not in terms of any duty owed but rather in terms of causation." Armstrong at 16, citing Schindler v. Gale's Superior Supermarket, Inc., 142 Ohio App.3d at 153. In Armstrong the Supreme Court considered and specifically rejected the comparative negligence approach promulgated by Schindler: { 10} However, we decline to follow these cases because we believe that the focus in these decisions is misdirected. The courts analyzing the openand-obvious nature of the hazard as an element of comparative negligence focus on whether the plaintiff's negligence in confronting an open-andobvious danger exceeds any negligence **1091 attributed to the defendant. See, e.g., Kloes v. Eau Claire Cavalier Baseball Assn., Inc. (1992), 170 Wis.2d 77, 87, 487 N.W.2d 77. Underthis approach, the open-and-obvious rule does not act as an absolute defense. Rather, it triggers a weighing of the parties' negligence. Id.

11 { 11} What these courts fail to recognize is that the open-and-obvious doctrine is not concerned with causation but rather stems from the landowner's duty to persons injured on his or her property. By failing to recognize the distinction between duty and proximate cause, we believe that these courts have prematurely reached the issues of fault and causation. Defendant-appellee WEA Belden, LLC respectfully submits that the decision of the 5th District Court of Appeals in confirming the grant of summary judgment by the Stark County Court of Common Pleas is fully consistent with the precedent of this court in the decisions of Armstrong v. Best Buy Co. Inc., Sidle v. Hum hre Paschal v. Rite Aid Pharmacy, Inc., Boles v. Montgomery Ward & Co., and S.S. Kresge Co. v. Fader. It remains true in Ohio that "Everybody knows that the hallways between the outside doors of... buildings and the elevators or business counters inside the building during a continued rainstorm are tracked all over by the wet feet of people coming from the wet sidewalks, and are thereby rendered more slippery than they otherwise would be." S.S. Kresge Co. v. Fader, 116 Ohio St. at These are naturally occurring risks for which a shopkeeper can reasonably expect their patrons to protect themselves against. CONCLUSION The grant of summary judgment in favor of the appellee in this case, affirmed on appeal, presents no matter of public and great general interest and involves no substantial constitutional question. Rather, it is a result of the proper application of well settled Ohio law on the issue of liability of shopkeepers for the slip and fall of customers due to tracked in water and snow due to weather conditions. Ohio has long recognized that the risks of tracked in water, snow or ice from weather conditions are the type of risks that "everybody knows" and can reasonably protect themselves against. The risk of tracked in water, ice, or snow at entrances to buildings due to adverse weather conditions is an open and

12 obvious hazzard for which the owner or operator of the premises owes no duty of care to persons lawfully on the premises. Defendant-appellee WEA Belden LLC respectfully requests the court to deny discretionary appeal in this case. Respectfully submitted, MANAHAN, PIETRYKOWSKI, DELANEY & WASIELEWSKI Michael J. Mbnahan, Esg. Attorney for Appellee WEA Belden Village LLC dba Westfield Shoppingtown CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Appellee Brief was sent via ordinary mail this Qy" day of June, 2007 to David A. Van Gaasbeek, Esq., 1303 West Maple Street, Suite 104, North Canton, Ohio 44720, Attorney for Plaintiff-Appellant, Fred Campbell.