IN THE SUPREME COURT OF OHIO. Appellee, Appeal from Montgomery County Court of Appeals, Second District

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1 FRIGIIVJ1I IN THE SUPREME COURT OF OHIO JAMES LOUIS MIDDLETOWN, et al., : Supreme Court Case No. V. Appellee, Appeal from Montgomery County Court of Appeals, Second District MEIJER STORES LIMITED Court of Appeals PARTNERSHIP, Case No. CA Appellant. MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT MEIJER STORES LIMITED PARTNERSHIP Jared A. Wagner ( ) (COUNSEL OF RECORD) Erin Moore ( ) Green & Green, Lawyers 800 Performance Place ^ I^ ^j ^ ^ 109 North Main Street F ^ LC D Dayton, Ohio JAN Tel Fax CLERK OF COURT jawagner@green-law.com SUPREflfiE C,UURT OF OHIO ebmoore@green-law.com COUNSEL FOR APPELLANT MEIJER STORES LIMITED PARTNERSHIP James E. Swaim (# ) Brock A. Schoenlein (# ) Flanagan, Lieberman, Hoffman & Swaim 15 West Fourth Street, Suite 100 Dayton, Ohio Tel: 937/ Fax: 937/ E D JAN CLERK OF COURT SllPREME COURT Cf OHIO COUNSEL FOR APPELLEE JAMES LOUIS MIDDLETON G R E N G R ^ E N L A W Y E R S

2 TABLE OF CONTENTS Paee EXPLANATION OF WHY THIS CASE IS OF PUBLIC OR GREAT GENERAL INTEREST STATEMENT OF THE CASE AND FACTS ARGUMENTS IN SUPPORT OF THE PROPOSITIONS OF LAW Proposition of Law No. I: In applying the open and obvious doctrine, the determinative question is whether the alleged hazard was observable upon ordinary inspection Proposition of Law No. II: A clear liquid on the floor of a store is open and obvious where it is observable to customers upon ordinary inspection Pro^2osition of Law No. III: Whether an alleged hazard is one that a customer would expect to encounter is irrelevant to the application of the open and obvious doctrine CONCLUSION PROOF OF SERVICE APPENDIX Anpx. Page Opinion of the Montgomery County Court of Appeals (July 9, 2010)... 1 Judgment Entry of the Montgomery County Court of Appeals (July 9, 2010).:...11 Judgment Entry of the Montgomery County Court of Appeals (January 12, 2011) G R ^ E N G R E N T. A W Y E R S -i-

3 EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST This case is of public and great general interest since it involves issues of first impression for this Court to consider and an important area of law that is being inconsistently applied by the District Courts of Appeal, both within and among the Districts. The open and obvious doctrine is of vital importance to the store owners and business operators of this State as it prevents them from in effect becoming insurers of their customers' safety.' By providing a clear and understandable parameter on liability the doctrine assists Ohio businesses in determining their risk and consequently the viability of their business when operating in this state. The reasoning underlying this doctrine as held by this Court is that a store owner "may reasonably expect that persons entering the premises will discover [open and obvious] dangers and take appropriate measures to protect themselves."2 Because of this, a retail business may consider his risk and cost of operations reduced to that extent. In other words, economically speaking, each individual customer or business invitee is in a better position to avoid open and obvious hazards by acting with ordinary observation than it is for the business owner or operator to whom it could be financially crippling, not to mention near impossible, to require it to constantly 1 Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203, Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, at '111, quoting Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 644, 1992-Ohio-42. G R ^ E N G R E N L A W Y E R 5-1-

4 monitor its entire premises for all hazards that its customers should have seen and avoided of their own accord. For these, among other reasons, Ohio has long held that a store owner does not owe a customer any duty with respect to open and obvious hazards since the open and obvious condition of the hazard "absolves the property owner from taking any further action to protect the plaintiff.i3 Stated otherwise by this Court, the "open and obvious" doctrine completely nullifies any duty that a business owner may owe to a business invitee and acts as a complete defense to all negligence claims 4 This protection provides plain and easily applicable guidelines by which businesses can operate, evaluate their risks and determine their potential liability. Because the open and obvious doctrine eliminates a store owner's duty to its customers, a court may not reject the application of the doctrine merely because of the composition of the hazard (i.e. whether the hazard consists of laundry detergent, ice, snow, water, etc.), the source of the hazard (i.e. whether created by customers, a store employee, etc.) and/or the color of the hazard. Likewise, it is also inappropriate for a court to apply the open and obvious doctrine to only those hazards that a customer may "expect" to encounter. Properly applying the law as established by this court, the only relevant 3 Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 2003-Ohio-2573, at J[ Armstrong at y[ 5. G R E N G R ^ E N 1. A W Y E R S -2-

5 question a court should consider in determining whether a hazard qualifies as open and obvious is whether it was observable upon ordinary inspection 5 Unfortunately, District Courts of Appeals have applied this doctrine inconsistently. Numerous Districts, including the Second, have correctly applied the open and obvious doctrine to situations involving clear observable liquids.6 However, in the present case, the Second District issued a three opinion decision overruling the trial court's grant of summary judgment that departed from its own previous decision in a case captioned Brant v. Meijer, Inc. and attempted to distinguish weather related water and snow tracked into a store by customers from other clear substances located on the floor of a store. Such a distinction is irrelevant and improper. Indeed, this distinction is contrary to the Second District's own previous decisions as well as to the decisions of other Ohio District Courts of Appeals that have properly applied the doctrine. Simply put, neither the source, nor the composition, nor the color of the hazard should have been determinative of whether the 5Id. 6 Brant v. Meijer, Inc., 2d Dist. No , 2006-Ohio-6300 at y[ 10-31, ("reasonable minds could only conclude that the puddle was neither latent nor hidden from view nor non-discoverable by ordinary inspection."); Andamasaris v. Annunciation Greek Orthodox Church 9th Dist. No , 2005-Ohio-475, at ; Caravella v. West-WHI Columbus N.W. Part., 10th Dist. No. 05 AP-499, 2005-Ohio-6762 at q[ 17-23; Francill v. The Andersons, Inc., (Feb. 15, 2001), 10th Dist. No. 00AP-835, 2001 Ohio App. LEXIS 522, *8 *9; Christovich v. Realty (Apri14, 1996) 8th Dist. No , 1996 Ohio App. LEXIS 1422, *4- *7. G R ^ E N G R E N L A W Y E R. 5-3-

6 hazard was open and obvious. As Judge Donovan noted in her dissent, the analysis should have ended upon the undisputed determination that the hazard was observable. In reaching its conclusion, the majority relied upon a case out of the Tenth District, Nienhaus v. Kroger', which distinguished the application of the open and obvious doctrine in cases involving water put on the floor of a business by a cleaning crew from cases involving weather related water tracked into the store by other customers:8 Not only has this distinction never been made or propounded as part of the open and obvious doctrine by this court but, again, such a distinction is irrelevant because the source of the water has no bearing on the determination of whether the water constitutes an open and obvious hazard. Instead, the court in Nienhaus, as well as the majority in this case, should have focused on whether the hazard was observable. Interestingly, several years prior to the present decision, the Second District actually distinguished the holding in Nienhaus, correctly holding that "(i]n each case, the crucial inquiry is whether a customer exercising ordinary care under the circumstances would have seen and been able to guard him or herself against the condition, " thus recognizing that simple observability is ultimately the only relevant issue in applying the open and obvious '(June 14, 2001) 10th Dist. No. OOAP-103, 2001 Ohio App. LEXIS Id. at *6 * G R G R L A W E N E N Y E R S

7 doctrine 9 It should also be noted that the Eighth District specifically rejected an argument similar to that adopted by the Second District in this case, recognizing that the issue of whether the alleged hazard consisted of tracked in snow is irrelevant to an application of the open and obvious doctrine.10 In addition to the majority opinion, Judge Grady issued a separate concurring opinion in this case, stating that the open and obvious doctrine should only apply to those hazards that a customer would expect to encounter. The basis of Judge Grady's reasoning is that all of the Supreme Court cases discussing the issue of open and obvious involve hazards that the plaintiff would have expected to encounter. Judge Grady had previously raised this position in the dissenting opinion he authored in Brant, and while the majority in this case never expressly adopts this position, it does cite to it in reference to Judge Grady's dissent in Brant. Judge Donovan issued a dissenting opinion in this case, agreeing with the trial court that the hazard in question was open and obvious because it was observable and the decision in Brant was dispositive. As illustrated by the foregoing instances of inconsistent application of the open and obvious doctrine among the various District Courts of Appeals, including the Second District's own internal inconsistent application, a review of these issues by this Court is 9 Kidder v. Kroger Co., 2d Dist. No , 2004-Ohio-4261, at Q 11. lo Christovich supra at *4-*7. G R E N G R ^ E N L A W Y E R 5-5-

8 required to provide clarification and ensure consistent application throughout the State. Indeed, the very fact that there are three separate opinions in this case and an earlier conflicting decision from the same court provides further evidence that this area of law is in need of clarification and guidance from this Court. While this Court has issued recent decisions reaffirming the viability of the open and obvious in Ohio, these decisions only addressed when this doctrine was applicable." In fact, this Court has not issued a decision directly addressing the substantive application of the open and obvious doctrine since Armstrong v. Best Buy in 2003 and has never issued a decision directly addressing whether the color, composition, and/or source of a hazard precludes the application of the open and obvious doctrine where the hazard is otherwise observable upon ordinary inspection. Accordingly, Appellant respectfully requests this Court to accept jurisdiction over this case in order to clarify the application of the open and obvious doctrine and determine the issues of first impression raised herein. STATEMENT OF THE CASE AND THE FACTS This case involves a slip and fall by Appellee, James Middleton, a Meijer customer, that occurred in the main aisle of a Meijer store on February 27, Middleton testified " Lang at the syllabus of the Court (finding that "[t]he open-and-obvious doctrine may be asserted as a defense to a claim of liability arising from a violation of the Ohio Basic Building Code); Robinson v. Bates, 112 Ohio St.3d 17, 25, 2006-Ohio-6362, at Q 25 (finding that the open and obvious doctrine does not dissolve a landlord's statutory duty to repair). G R fe,^ E N G R ^" E N L A W Y E R 5-6-

9 during his deposition that he was very familiar with the store because he regularly shopped there and that the store was only moderately busy at the time of his accident. Immediately prior to the accident, Middleton selected two gallon jugs of milk in and began walking toward the front of the store carrying a gallon jug of milk in each hand. As he was walking, Middleton's left foot slipped forward and at a slight angle to the left, causing him to do, as he described it, "the splits," with his right leg behind him. While he was on the ground, Middleton looked at what had caused him to slip and saw a puddle of clear liquid "ten feet long and fifteen to eighteen inches wide." After the fall, Middleton was able to get up off the ground under his own power and did so. Middleton admitted that prior to his fall he had not been looking where he was walking and that nothing had obstructed his view of the floor. Moreover, Middleton also admitted to being able to clearly see the ten foot long puddle in which he had slipped from a standing position once he got up of the ground. In fact, Middleton specifically testified that he would have been able to see the puddle while standing or walking down the aisle had he been watching where he was walking prior to his fall and that he simply did not see it because he was not watching where he was walking before he fell. Middleton initiated this case by filing suit against Meijer on February 5, 2009, seeking recovery for injuries he purportedly incurred as a result of the slip and fall. Meijer took Middleton s deposition on September 1, 2009, and a written copy of the transcript G R ^,`^ E N G R $ E N L A W Y E R S -7-

10 from this deposition was filed with the trial court on September 15, Meijer then filed a Motion For Summary Judgment on September 22, 2009, seeking summary judgment on the basis that among other things, the alleged hazard was open and obvious. The trial court issued a Decision, Order, and Entry Sustaining Meijer's Motion for Summary Judgment on November 24, As to the premise liability claim, the trial court correctly held that the alleged hazard constituted an open and obvious hazard as a matter of law and that Middleton had failed to present evidence of any attendant circumstances. In its decision, the trial court specifically cited to and relied upon the Second District's prior decision in Brant finding that both the facts and the reasoning set forth therein were dispositive. On December 16, 2009, Middleton filed a notice of appeal to the Second District Court of Appeals. After the appropriate briefs were filed and oral argument was held, on July 9; 2010 the Second District issued a decision overruling the trial court's application of the open and obvious doctrine in this case. As previously noted, this decision included three separate opinions. The majority opinion was authored by Judge Brogan and distinguished the application of the open and obvious doctrine based upon whether the hazard related to snow and/or water tracked in by customers or some other source. Judge Grady issued a separate concurring opinion, stating that the open and obvious doctrine should only apply to those conditions that a customer would expect to encounter. Judge G R ^,`^ E N G R E E N L A W Y E R S -8-

11 Donovan dissented, agreeing with the trial court that the hazard in question was open and obvious as a matter of law because it was observable and the decision in Brant was dispositive. Again, the number and diversity of opinions regarding the proper application of the open and obvious doctrine illustrates why it is appropriate for this Court to exercise jurisdiction over this case. On July 19, 2010 Meijer filed Applications for Reconsideration and for En Banc Consideration of this case to address the inconsistencies in the application of the law. On September 24, 2010, the Second District initially granted the request for en banc review, however, this decision was vacated by an October 18, 2010 order. Subsequently, on January 12, 2011, the Second District issued its decision and entry overruling Meijer's request for en banc consideration. Judge Grady dissented from this decision finding that the present matter did in fact conflict with the Second District's previous decision in Brant, stating in his conclusion of that dissent: Meijer, Inc., which was the defendant store owner both in Brant and Middleton, is no doubt perplexed to understand how we came to different conclusions in the two cases. However, and more importantly, the bench and bar in this appellate district is likewise likely to be confused concerning the application of the "observable" rule in cases of this kind. This neat summary by Judge Grady of the reason why en banc consideration should have been granted applies equally to why this case is one of public or great general interest that should be addressed by this Court. G R ^ E N G R E N L A W Y E R S -9-

12 ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW Proposition of Law No. I: In applying the open and obvious doctrine, the determinative question is whether the alleged hazard was observable upon ordinary inspection. The viability of the open and obvious doctrine has been continuously reaffirmed by this Court.12 Recently, this Court held as follows in Lang: As we have repeatedly recognized, "It]he open-and-obvious doctrine remains viable in Ohio. Where a danger is open and obvious, a landowner owes no duty of care to individuals lawfully on the premises." "[T]he owner or occupier may reasonably expect that persons entering the premises will discover those dangers and take appropriate measures to protect themselves." Thus, when a plaintiff is injured by an open and obvious danger, summary judgment is generally appropriate because the duty of care necessary to establish negligence does not exist as a matter of Iaw.13 Applying this law, courts have recognized that the open and obvious doctrine is concerned with an objective determination of the nature of the alleged hazard rather than plaintiff's subjective knowledge of the condition and that a business invitee has a duty to look where he/she is walking.14 Therefore, the relevant question in determining whether a condition is open and obvious is not whether the plainfiff observed the alleged hazard but lz Armstrong, supra, at the syllabus of the Court; Lang, supra, at Lang at Q 11 (internal citations omitted). 14 Brant at y[ 8 and 31, citing Backus v. Giant Eagle (1996), 115 Ohio App.3d 155, 158. G R ^,`^ E N G R E E N L A W Y E R S -10-

13 whether the hazard was observable.t5 "Put another way, the crucial inquiry is whether an invitee exercising ordinary care under the circumstances would have seen and been able to guard himself against the condition."16 In Brant, the Second District's own precedent, the Court of Appeals held: Brant's testimony makes clear that she would have been able to discover and avoid the puddle if she had exercised ordinary care in watching where she was going. Brant testified that her view of the floor was not obstructed. Her testimony that she saw the water after her fall establishes that it was visible to an ordinary observer looking directly where she was walking. By looking elsewhere, Brant "abandoned the duty imposed to look." [Citation omitted]. Had she not done so, she would have seen the puddle." Thus, the Court plainly knew, followed and applied the proper concept that as long as the alleged hazard was observable to an "ordinary" observer, it is "open and obvious" as a matter of law. Yet, it deviated from this simple, plain rule of law subsequently when deciding a case where nearly identical testimony was offered by Middleton. Such inconsistency makes it nearly impossible for a business owner to evaluate risks in its enterprise. 15 Caravella at y[ 14 (emphasis added). 16 Id.; McConnell v. Margello, 10th Dist. No. 06AP-1235, 2007-Ohio-4860, at 9[ 10, citing Kidder v. Kroger Co., 2d Dist. No , 2004-Ohio-4261, at y[ Brant, supra at y[ 31. See also, Springer v. University of Dayton, 2006-Ohio-3198 (2"a Dist., Montgomery Cty). G R ^ E N G R E N L A W Y E R S -11-

14 The open and obvious doctrine "absolves the property owner from taking any further action to protect the plaintiff."' $ There is no exception to this rule for whether there is notice to anyone, including the premises owner, before the plaintiff falls nor does it depend on the person or agency who created the observable condition - the doctrine merely applies to obviate duty if the claimed hazard is "observable" to "ordinary inspection." Accordingly, it is error for a court to refuse to apply the open and obvious doctrine based upon the composition, source, or color of the hazard. While these factors may ultimately be relevant in determining whether the hazard was observable, none are themselves determinative of whether the open and obvious doctrine should apply. For example, where the plaintiff him or herself testifies that the substance of the hazard was observable, particularly from a standing position, the hazard is "open and obvious" as a matter of law, period. In this case, the majority opinion drew a distinction between weather related water tracked into a store and other clear liquids that come to be on the floor of a store. Such a distinction is improper and irrelevant. This illogic is also demonstrated by comparison to other "foreign substance" cases where plainly the alleged hazard is not "tracked in" rain or may even be placed or created by the property owner such as: pallets, oil, unstacked 18 Armstrong at 9[ 13. G R E N G R ^ E N L A W Y E R S _12-

15 product, a hole, or darkness but is yet found to be "open and obvious'.19 The only issue the court should have focused on is whether the hazard was observable. Because the liquid in this case was admittedly and undisputably observable, the trial court was correct in granting summary judgment. Proposition of Law No. II: A clear liquid on the floor of a store is open and obvious where it is observable to customers upon ordinary inspection. As discussed above regarding Proposition of Law No. I, a finding of open and obvious depends on whether the hazard involved was observable to the plaintiff upon ordinary inspection. Simply because the hazard happens to be a clear liquid does not preclude the application of the open and obvious doctrine. This proposition of law reaffirms this conclusion and the need for a court considering the open and obvious doctrine to focus on the overall observability of the hazard rather than its isolated characteristics. This court has specifically noted with regard to the open and obvious doctrine that "if an alleged hazard is open and obvious, whether the plaintiff can prove the elements of negligence other than duty is superfluous."20 19 E.g., Boroff v. Meijer Stores Limited Partnership, 2007-Ohio-1495 (10"' Dist., Franklin Cty), (pallet); Brown v. Whirlpool Corp., 2004-Ohio-5101 (3`d Dist., Marion Cty), (hydraulic oil); Carter v. Miles Supermarket, 2010-Ohio-6365 (8tr' Dist., Cuyahoga Cty), (small box of unstacked product); Gingrich v. D'Ambrosio, 2009-Ohio-2956 (11"' Dist. Trumbull Cty), (hole in floor inside door); Johnson v. Regal Cinemas, 2010-Ohio-1761 (St" Dist. Cuyahoga Cty), (unlit steps in movie theater). 20 Caravella v. West-WHI Columbus N.W. Part., 2005-Ohio-6762, at y[ 13, (10th Dist.) G R E N GREEN L A W Y E R S -13-

16 Proposition of Law No. III: Whether an alleged hazard is one that a customer would expect to encounter is irrelevant to the application of the open and obvious doctrine. The open and obvious doctrine is based upon the a store owner's expectation that "persons entering the premises will discover [open and obvious] dangers and take appropriate measures to protect themselves."zt As such, this doctrine eliminates a property owner's duty to the plaintiff.22 The question of whether the specific hazard is one that a customer would "expect" to encounter simply does not pertain to the determination of whether the hazard was open and obvious. As specifically recognized by the Court in Armstrong: We continue to adhere to the open-and-obvious doctrine today. In reaching this conclusion, we reiterate that when courts apply the rule, they must focus on the fact that the doctrine relates to the threshold issue of duty. By focusing on the duty prong of negligence, the rule properly considers the nature of the dangerous condition itself, as opposed to the nature of the plaintiff's conduct in encountering it. The fact that a plaintiff was unreasonable in choosing to encounter the danger is not what relieves the property owner of liability. Rather, it is the fact that the condition itself is so obvious that it absolves the property owner from taking any further action to protect the plaintiff.z3 Thus, it is improper for a court to focus on a plaintiff's actions in encountering the hazard and consider whether a plaintiff could "expect" to encounter such a hazard Lang at y[ 11. Armstrong at l Id G R ^,`^ E N G R E E N L A W Y E R S

17 Regardless of whether it was "expected", if the hazard was observable upon ordinary inspection, it was open and obvious and the premise owner owes no duty of care. In fact, to make a point, the hazard could be a large pit of writhing vipers - a hazard which one would obviously not expect to find on the premises of a retail store - and the premise owner would still be entitled to summary judgment under the open and obvious doctrine as long as the hazard was been observable to the plaintiff upon normal inspection. CONCLUSION For the reasons discussed above, this case involves matters of public and great general interest. Therefore, Appellant, Meijer Stores Limited Partnership, requests that this Court accept jurisdiction in this case to consider the issues presented herein and resolve the inconsistent application of the open and obvious doctrine by the various District Courts of Appeals. G R E N C R ^ E N L A W Y E R S -15-

18 Respectfully submitted, JARED A. WAGNER ( ) (Counsel of Record) ERIN MOORE ( ) GREEN & GREEN, Lawyers 800 Performance Place 109 North Main Street Dayton, Ohio Tel Fax Counsel for Appellant Meijer Stores Limited Partnership Certificate of Service I certify that a copy of this Notice of Appeal was sent by ordinary U.S. mail to counsel for appellee, James E. Swaim and Brock A. Schoenlein, Flanagan, Lieberman, Hoffman & Swaim, 15 West Fourth Street, Suite 100, Dayton, Ohio on the 28"' day of January, fn JARED A. WAGNER ( ) COUNSEL FOR APPELLANT MEIJER STORES LIMITED PARTNERSHIP G R E N G R ^ E N L A W Y E R 8-16-

19 IN THE COURT OF APPEALS OF OHIO MONTGOMERY COUNTY JAMES LOUIS MIDDLETON, et al. Plaintiff-Appellant V. MEIJER, INC., et al. Appellate Case No Trial Court Case No CV-0973 (Civil Appeal from Common Pleas Court) Defendant-Appellant OPINION Rendered on the 9`h day of July, JAMES E. SWAIM, Atty. Reg. # , and BROCK A. SCHOENLEIN, Atty. Reg. # , Flanagan, Lieberman, Hoffman & Swaim, 15 West Fourth Street, Suite 100, Dayton, Ohio Attorneys for Plaintiff-Appellant ERIN B. MOORE, Atty. Reg. # , and JARED A. WAGNER, Atty. Reg. # , Green & Green, 800 Performance Place, 109 North main Street, Dayton, Ohio Attorneys for Defendant-Appellees BROGAN, J. James Middleton appeals from the trial court's grant of summary judgment to Meijer's Stores in his "slip and fall" lawsuit. THE COURT OF APPEALS OF OHIO

20 On February 27, 2007 in the late afternoon Middleton entered the Meijer Store located at Stroop and Wilmington Pike in Kettering, Ohio. Middleton walked to the rear of the store and picked up two gallons of milk, one in each hand. Middleton walked through the main grocery aisle to look at sale displays. As he waswalking, Middleton felt his left foot slide out from beneath him, causing him to "do the splits and hit his knee on the ground." (Deposition at 22.) Middleton thought he must have slipped on water, but a Meijer employee who was standing nearby said Middleton had slipped on liquid laundry detergent. Middleton said a person named Betty Swihart witnessed his fall and asked if he was all right. She provided her name and address and. advised Middleton to go home and ice his knee right away. Middleton said the puddle was about ten feet long forward of him and got all over his clothes. Middieton said the liquid smelled likeiiquid laundry detergent. (Deposition at 34.) Middleton noticed no one in front of him and he could not say how long the liquid had been on the floor. (Deposition at 36.) He did not see anything that was leaking or causing the puddle. He described the liquid as clear. (Deposition at 37.) When on the floor, Middleton could see that the "substance had been all tracked through." (Deposition at 34.) Middleton stated the floor color was light colored. Betty Swihart told Middleton she had seen the clear substance on the floor prior to Middleton's fall and had gone to tell a Meijer staff member about the spill. (Deposition at 41.) In an affidavit, Betty Swihart stated she saw a clear substance on the floor which appeared dangerous, and she went to inform Meijer management about the spill. She stated she returned to find that James Middleton had fallen on the substance. She stated the elapsed time between when she first saw the substance on the floor and when she saw Mr. Middleton had fallen in it was approximately ten minutes. A supervisor eventually THE COURT OF APPEALS OF OHIO

21 appeared and asked if Middleton was hurt. The next day when his knee kept bothering him, Middleton went to the emergency room at Miami Valley Hospital. He was later diagnosed with a torn meniscus in his knee and he underwent surgery for its repair. The trial court found that Meijer's had no duty to protect Middleton from an "open and obvious" danger and the clear liquid laundry detergent was just such a danger. The court found the facts in our previous case of Brant v. Meijer, Inc., Montgomery App. No , 2006-Ohio-6300, to be persuasive. In that case we found that a puddle of water on a main aisle inside the store was an open and obvious danger. We also found that even if the puddle was not open and obvious, there was no evidence that a Meijer's employee had created the puddle or that the store had actual or constructive knowledge of the presence of the puddle. Further, Judge Donovan in Brant noted that because the plaintiff saw the puddle of water after her fall it established that it was visible to an ordinary observer looking directly where he was walking. We also found there were no attendant circumstance that would have created an exception to the puddle being an open and obvious danger to Brant. The trial court noted in this matter that there was no evidence that a Meijer employee caused the spill of the detergent and there was no evidence Brenda Swihart actually contacted a Meijer employee about the spill she observed prior to Middleton's fall. In Brant, Judge Grady dissented. He stated that a puddle of water on the tile floor of a large retail store is not a condition which is so readily observable that Brant should have discovered it as she walked through the Meijer's store. Judge Grady also stated that a puddle of water on the floor is not a condition which an invitee should reasonably expect to exist on the premises of a store like Meijer's, and the puddle was not an open and THE COURT OF APPEALS OF OHIO

22 obvious hazard. The ground rules for the grant of summary judgment are well known. There must be no material fact in dispute, and the movant must be entitled to judgment as a matter of law. Civ.R. 56(C); Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978). The evidence must, however, be construed moot strongly in favor of the non-moving party and the burden of showing that no genuine issue exists as to any material fact is upon the moving party. Mitseffv. Wheeler, 38 Ohio St.2d 112 (1988). Long ago, the Ohio Supreme Court held that a shopkeeper owes his business invitees a duty of ordinary care n maintaining the premises in a reasonably safe condition so that its customers are not unnecessarily and unreasonably exposed to danger. Campbell v. Hughes Provision Co. (1950), 153 Ohio St. 9. 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 discover them and protect himself against them." Sidle v. Humphrey (1968), 13 Ohio St.2d 45, Syllabus, 1. In Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203, the Supreme Court held that the defendant was not liable to the plaintiff who slipped in a puddle of water near the entrance to the store caused by snow tracked into the pharmacy. Paschal however was distinguished in Nienhaus v. Kroger Co. (June 14, 2001), Franklin App. No. OOAP In that case, the appellant slipped and fell on a puddle of water caused by a cleaning crew and injured her back and knee. The trial court sustained the defendant's motion for summary judgment. In reversing the trial court, Judge McCormac writing for the Franklin County Court of Appeals noted that it is obvious that the THE COURT OF APPEALS OF OHIO

23 puddle of water was not weather related like in Paschal. The court also rejected the argument that shoppers who happen to frequent a store during cleaning hours assume the risk of being injured. The court noted that it is obvious that water is transparent and may not be easily detected by unsuspecting shoppers. The court noted that the duty is on the shopkeeper to make sure that its premises are safe. In Johnson v. Wagner Provision Co. (1943), 141 Ohio St. 584, the Supreme Court held that in order for a customer to recover for injuries sustained in a fall in a store as a result of stepping on a substance on the floor of the store, the customer must show that the storekeeper, through its officers or employees, was.responsible for the hazard, or that at least one of such persons had actual knowledge of the hazard and neglected to give adequate notice of its presence or remove it promptly or that such hazard had existed for a sufficient length of time reasonably to justify an inference that failure to warn against it or remove it was attributable to want of ordinary care. In Johnson, the plaintiff stepped on mayonnaise which had spilled from a jar dropped by another customer. In Sempireckv. KrogerCompany(Mar. 10, 1977), BelmontApp. No. 1224, the court of appeals reversed the trial court's grant of summary judgment where the plaintiff fell on a foreign substance in the aisle of one of the defendant's stores which turned out to be a jar "of mushrooms which had been knocked off a speciality rack onto the floor by a customer. The customer called the matter to the attention of a store employee, a Shirley Lucas, who blocked the area off with cardboard boxes and then went to get some clean-up materials. The store employee stated the accident occurred two to three minutes prior to her knowing about the broken jar of mushrooms. The court further noted in the opinion that: THE COURT OF APPEALS OF OHIO

24 "Defendant took the deposition of plaintiff, which was filed in this case. In her deposition plaintiff stated that on December 24, 1973, around 4:00 p.m. she slipped and fell in an aisle of defendant's store while shopping; that she did not look at the floor before it happened but was looking to the left for Busch beer to buy for her father when her right foot slipped and she fell forward; that she did not see the cause of her fall until after she fell when she felt something wet on the floor and saw 'something slick on the floor' ; that the area of the floor that was wet was somewhat circular and about a foot long and was sprayed at the edges described by plaintiff as 'splattered all over the place'; that she felt something sharp on her leg but did not see any glass; that the area was clear; that she did not see any pieces of vegetable, fruit, or boxes in the area where she fell; that after approximately fifteen minutes she told Shirley about her accident; that Shirley told her that she had picked up the pieces of glass and 'went back to get Nandi-wipes' (P..10, 26, 36-42, 45-51)." Judge Lynch, in reversing the trial court's grant of summary judgment to defendant, explained: "Construing the evidence most strongly for plaintiff we find that inferences from the record can be made that the accident in this case occurred after Shirley Lucas was informed that a jar of mushrooms packed in oil fell and broke in the subject aisle and after either Shirley or 'one of the boys' had cleaned up the area and removed the cardboard boxes that Shirley Lucas had placed around such area. "Although apparently a short time elapsed between the time the jar of mushrooms fell and broke in defendant's store and the accident we feel that there are factual questions whether sufficient time elapsed for defendant's employees to clean up such area and THE COURT OF APPEALS OF OHIO

25 whether the efforts of defendant's employees to clean up such area were reasonably adequate under the circumstances. Therefore, we feel that the facts of this case can be distinguished from the facts in the cases of Johnson v. Wagner Provision Co., 141 Ohio St. 584; Hardgrove v. Isaly Dairy Co., 139 Ohio St. 641; and Sherlock v. Strouss-Hirshbert Co., 132 Ohio St. 35. See Duke v. Sanymetal Products Co., 31 Ohio App.2d 78 and Bounds v. Baldwin, 32 Ohio Law Abstract 91." Although store owners have no duty to protect its patrons from tracked-in waterfrom snow or rain near the entrance to the stores, they do have a duty to protect patrons from clear substances on their store floors that are not open and obvious dangers. We believe a jury could find from the plaintiff's evidence that the laundry detergent was not an open and obvious danger to the plaintiff Middleton and that the defendant had sufficient notice of its presence in order to protect the plaintiff from falling in it. The assignment of error is Sustained. Judgement Reversed and this cause Remanded. GRADY, J., concurring: In Brant v. Meijer, Inc., Montgomery App. No , 2006-Ohio-6300, this court held that because a puddle of water on the floor of a retail store that caused the plaintiff to slip and fall presented an open and obvious hazard, the owner and operator of the premises was relieved of its common-law dutyto eitherwarn patrons who entered the store of the condition that created the hazard permitting patrons to avoid the risk of injury the hazard presented, or, alternatively, to cure the condition from which the hazard arose. THE COURT OF APPEALS OF OHIO

26 Lacking any duty to do either, the owner/operator could not be liable for injuries to the plaintiff that proximately resulted from her slip and fall. We reasoned in Brant that the puddle of water presented an open and obvious -8- hazard because it was "observable," citing our prior holding in Springer v. University of Dayton, Montgomery App. No , 2006-Ohio In Springer, the plaintiff was injured when, upon leaving a sporting event at about 11:00 p.m., he tripped and fell over a steel cable suspended between two posts in a university's parking lot. The open and obvious doctrine derives from the holding in Sidle v. Humphrey (1968), 13 Ohio St.2d 45, in which a minor delivering newspapers was injured when he slipped and fell on ice that had accumulated on the front steps of a residence during December. The Supreme Court held: "The dangers from natural accumulations of ice and snow are ordinarily so obvious and apparent that an occupier of premises may reasonably expect that a business invitee on his premises will discover those dangers and protect himself against them. (Debie v. Cochran Pharmacy-Benvick, Inc., 11 Ohio St.3d 38, 227 N.E. 2d 603, approved and followed.)" Syllabus by the Court, paragraph two. Debie, on which Sidle relied, likewise involved a natural accumulation of snow and ice, but on a public sidewalk. More recently, in Armstrong v. Best Buy, Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, a shopping-cart guardrail affixed to the floor of an exit vestibule at a store premises, on which the plaintiff tripped, was held to present an open and obvious danger. Also, in Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, a set of steps that failed to conform to a building code was held to present an open and obvious danger, preventing liability for injuries an invitee suffered when he fell while ascending the steps. THE COURT OF APPEALS OF OHIO

27 The common thread running through the holdings in Sidle, Debie, Armstrong, Lang, and Springer, is that the particular physical condition that presentedthe hazard or danger was a condition which the invitee could or should have anticipated would be present when and where it was encountered on the premises. In that circumstance the hazard the condition presents is deemed open and obvious. The invitee is then charged with a duty to apprehend and protect himself from the risk of harm the hazard presents, from which his injuries resulted. In the present case, the condition that presented the hazard was not one that the invitee could or should have anticipated would be present when he encountered it on the premises, because the condition was one foreign to where it was encountered. In that circumstance, the prospect that the invitee will apprehend the risk of harm the hazard -9- presents is diminished. That diminution should be taken into consideration when IiabiGty is in issue. On a motion for summary judgment by the defendant, in which the evidence must be construed most strongly in the plaintiff's favor, the diminution ordinarily preponderates against granting the motion. Reasonable minds could find that the patch of spilled liquid detergent on which Plaintiff Middleton slipped and fell, being a condition foreign to when and where Plaintiff encountered it, presented a hazard that was not open and obvious. The fact that it was observable on subsequent examination may be determinative of whether the Plaintiff should have seen it, but not whether it was as a matter of law open and obvious. Therefore, I agree with Judge Brogan that the trial court erred when it granted summary judgment for Meijers. Our holding in Brant should be limited to the particular facts of that case. THE COURT OF APPEALS OF OHIO

28 -10- DONOVAN, P.J., dissenting: In Brant, the majority noted that the open and obvious doctrine relates to the threshold issue of duty and whether a dangerous condition is observable. The critical issue is whether an invitee exercising ordinary care couid have seen the condition had he or she looked. This court noted in Brant an abandonment by plaintiff of the duty imposed upon her to look. Here, Middleton too admitted in his deposition testimony that he was not looking either as he walked down the unobstructed grocery store aisle. Utilizing an objective standard, this liquid detergent was observable. Clearly, Betty Swihart, another shopper, was able to observe it. I agree with the trial court, based on Middleton's deposition testimony and Betty Swihart's affidavit, the condition was readily observable and recovery is barred by the open and obvious doctrine. I would affirm. Copies mailed to: James E. Swaim Brock A. Schoenlein Erin B. Moore Jared A. Wagner Hon. Mary K. Huffman THE COURT OF APPEALS OF OHIO

29 IN THE COURT OF APPEALS OF OHIO MONTGOMERY COUNTY JAMES LOUIS MIDDLETON, et al. Plaintiff-Appellant V. MEIJER, INC., et al. Defendant-Appellant Appellate Case No Trial Court Case No CV-0973 (Civil Appeal from Common Pleas Court) FINAL ENTRY Pursuant to the opinion of this court rendered on the 9th day July, 2010, the judgment of the trial court is Reversed and this cause is Remanded to the trial court for further proceedings consistent with the Opinion. Costs to be paid as stated in App.R. 24. MARY E. DONOVAN, Presiding Judge OMAS J. G THE COURT OF APPEALS OF OHIO

30 Copies mailed to: James E. Swaim Brock A. Schoenlein Flanagan, Lieberman, Hoffman & Swaim 15 W. Dourth Street, Suite 100 Dayton, OH Jared A. Wagner Erin B. Moore Green & Green 800 Performance Place 109 N. Main Street Dayton, OH Hon. Mary K. Huffman Montgomery County Common Pleas Court 41 N. Perry Street Dayton, OH THE COURT OF APPEALS OF OHIO

31 IN THE COURT OF APPEALS OF OHIO MONTGOMERY COUNTY JAMES LOUIS MIDDLETON, ET AL. Appellate Case No Plaintiff-Appellant Trial Court Case No. 09-CV-0973 MEIJER, INC., ET AL. Defendant-Appellee DECISION AND ENTRY Rendered on-the 12th day ofjanuary; PER CURIAM: On July 9, 2010, this Court issued its Final JudgmenYEntry and Opinion in this case, in which we reversed a summary judgment that the trial court had granted in favor of Defendant Meijer Stores Limited Partnership on Plaintiff James Middleton's claim for damages arising from his "slip and fall" while a customer at a Meijer store. We also remanded the case to the trial court for further proceedings consistent with our opinion. On JuSy 19, 2010, Meijer moved for en banc consideration of this case. Middleton filed a memorandum on August 17, 2010 in opposition to Meijer's motion for en banc review; Meijer filed a reply memorandum in support of its en banc motion on August 27, On September 24, 2010, we granted Meijer's motion for en banc review and ordered additional briefs to be filed in the case. THE COURT OF APPEALS OF OHIO

32 Upon further review of Meijer's motion for en banc consideration of this case, we 2 vacated, on October 18, 2010, our order of September 24, 2010, that had granted en banc review. As a result of our October 18, 2010 decision, Meijer's July 19, 2010 motion for en banc review remains pending before this Court (and thus, Meijer's time to appeal our July 9, 2010 Final Judgment Entry to the Ohio Supreme Court remains tolled per S.Ct. Prac. R. 2.2 (A) (6)). Further, as stated in our October 18, 2010 order, the question of whether this appeal should be decided en banc is itself to be decided by the entirety of this Court. Upon consideration of the parties' memoranda in support of and in opposition to en banc review, we conclude that our Finai Judgment and Opinion previously rentlered herein is not in conflict with a prior decision (or decisions) of this Court. Thus, en banc consideratior, of this appeal is not warranted (see App. R. 26 (A)(2)), and accordingly, Meijer's motion of July 19, 2010 seeking such review is OVERRULED, SO ORDERED. MIKE FAIN, Judge M-w- MA Y E. ONOVAN, Judge THE COURT OF APPEALS OF OHIO SECOND APPELLATE.DISTRICT

33 3 Grady, P. J., dissenting: Our holding in the present case is in conflict with our prior holding in Brant v. Meijer, Inc., Montgomery App. No , 2006-Ohio We should therefore grant the motion for en banc review filed in the present case by Defendant-Appellant, Meijer, Inc., pursuant to App.R. 26(B)(2). Both Brant and the present case, Middleton, involved claims for personal injuries proximately resulting from a customer's slip-and-fall in a retail store. Both appeals were from summary judgments the trial court granted to the defendant store owner on its motion. In Brant, we sustained the summary judgment for the store owner on a finding that a puddle of water on the floor of the store that allegedly caused the plaintiff customer who stepped in the puddle to slip andfiall to the floor, and which the customer said he had not seen before his fall, was nevertheless "observable." Therefore, applying the rule regarding open and obvious hazards announced in Armstrong v. Best Buy, Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, we held that the store owner could not be liable for the plaintiffs injuries. In the present case, Middleton, we reversed a summary judgment for the store on a finding that a puddle of clear liquid detergent on thefloor of the store that allegedly caused the plaintiff customer who stepped in the puddle to slip and fall to the floor, and which the customer said he had not seen before his fal(, was not "observable." Therefore, we rejected application of the rule of Armstrong and remanded the case for trial. The only difference between Brant and Middleton is that in Middleton there was evidence that another customer had seen the puddle and reported it to store management, shortly before the plaintiff's slip-and-fall, If so, that evidence shows that the owner was on notice of the condition and the hazard it presented. However, that fact has no bearing on a THE COURT OF APPEALS OF OHIO

34 finding that the condition was "observable," as a matter of law, such that it relieves the defendant store owner of any liability. Our holding in Brant that the condition was observable derives from the rule regarding open and obvious hazards discussed in Armstrong. My concurring opinion in the present case discussed why Armstrong has no application on the facts of this case or Brant, in which I dissented. The open and obvious test grows out of a line of cases, beginning with Sidle v. Humphrey (1968), 13 Ohio St.2d 45, that involved fixed or naturallyoccurring conditions that are open and obvious. In that circumstance, one who enters on property where the condition exists is charged by law with notice of the hazard the condition presents. That theory has no like application to conditions which are of a temporary nature and foreign to the location where they are found. Both the present case and Brant involved conditions of that kind. In that event, whether the plaintiff should have seen the condition generally pre$ents an issue of fact for a jury to determine. Furthermore, whether a condition is "observable" is not the same as whether it is open and obvious. Whether it is open and obvious depends on its character. Whether it is obsenrable, as we applied that test in Brant, turns on whether it was seen. In both cases the plaintiff stated that he saw the condition after he fell to the floor. We reasoned in Brant that, therefore, the condition was "observable." Unless they are rendered unconscious by the accident, plaintiffs almost always see the condition that caused their fall after they're on the floor. To reason that therefore they reasonably should have seen the condition before they fell is inconsistent with the basic rule that holds the owner or occupier of a business premises liable for an injury an invitee suffers from an inherently dangerous condition on the premises, except one that is open and obvious. THE COURT OF APPEALS OF OHIO