U 8 - 2 3 25 Case No

U 8 - 2 3 25 CASE NO.

In the Supreme Court of Ohio

ON APPEAL FROM THE COURT OF APPEALS EIGHTH APPELLATE DISTRICT CUYAHOGA COUNTY, OHIO CASE No. CA 07 90668

MADELINE SIMEONE

Plaintiff-Appellee,

vs.

SCHWEBEL'S BAKING COMPANY

Defendant-Appellant.

MEMORANDUM IN SUPPORT OF JURISDICTION OF SCHWEBEL'S BAKING COMPANY

PAUL W. FLOWERS (0046625) MICHELLE J. SHEEHAN (0062548) Terminal Tower, 35th Floor PAUL-MICHAEL LAFAYETTE (0067031) 50 Public Square REMINGER CO., L.P.A. Cleveland, Ohio 44113 1400 Midland Building Ph: 216-344-9393 101 Prospect Avenue West Cleveland, Ohio 44115-1093 MICHAEL SHROGE (0072667) Telephone: (216) 687-1311 55 Public Square, Suite 2222 Email: msheehan(c)reminger.com Cleveland, Ohio 44113 Ph: 216-861-0804 Counsel for Defendant-Appellant

Counsel for Plaintiff-Appellee

CLERK OF COURT SUPREME COURT OF OHIO TABLE OF CONTENTS

TABLE OF CONTENTS ...... i

TABLE OF AUTHORITIES ...... ii

1. EXPLANATION OF WHY THIS CASE IS A MATTER OF PUBLIC OR ...... 1 GREAT GENERAL INTEREST ...... 1

II. STATEMENT OF THE CASE AND FACTS ...... 3

IH. ARGUMENT ...... 8

A. FIRST PROPOSITION OF LAW ...... 8 WHETHER OHIO RECOGNIZES ATTENDANT CIRCUMSTANCES AS AN EXCEPTION TO THE OPEN AND OBVIOUS DOCTRINE

B. SECOND PROPOSITION OF LAW ...... 10 IF THE COURT RECOGNIZES ATTENDANT CIRCUMSTANCES AS AN EXCEPTION TO THE OPEN AND OBVIOUS DOCTRINE, ATTENDANT CIRCUMSTANCES CANNOT BE USED TO CREATE A DEFECT OR HAZARD ON COMMERCIAL PREMISES

C. THIRD PROPOSITION OF LAW ...... 11 WHAT CONSTITUTES ATTENDANT CIRCUMSTANCES?

D. FOURTH PROPOSITION OF LAW ...... 12 WHETHER A PREMISES OWNER OWES A DUTY TO WARN OF NORMALLY ENCOUNTERED COMMERCIAL MATS AS A MATTER OF LAW

IV. CONCLUSION ...... 14

CERTIFICATE OF SERVICE ...... 15

V. APPENDIX ...... 16 Simeone v. Schwebel's Baking Company, Cuyahoga App. No. 90668, 2008-Ohio-5254...... 16

i TABLE OF AUTHORITIES

CASES

Armentrout v. Associated Dried Goods Corp. Hamilton App. No. C-890784 ...... 9

Armstrong v. Best Buy Company, Inc., 99 Ohio St. 3d 79, 2003-Ohio-2573, 788 N.E. 2d 1088,

...... 1, 6, 8

Backus v. Giant Eagle, Inc. (1996), 115 Ohio App. 3d 155, 158, 684 N.E.2d 1273 ...... 12

Boroff v. Meijer Stores, Ltd., Franklin App. No. 06APP-1150, 2007-Ohio-1495 ...... 12

Bounds v. Marc Glassman, Cuyahoga App. No. 90610, 2008-Ohio-5989 ...... 8, 10

Brown v. The Twins Group-PH, LLC, Clark App. No. 2004CA59, 2005-Ohio-4197 ...... 13

Cash v. City of Cincinnati (1981), 66 Ohio St.2d 319, 421 N.E.2d 1275 ...... 10

Collins v. McDonald Corp., Cuyahoga App. No. 83282, 2004-Ohio-4074 ...... 8

Cummin v. Image Mart Inc., Franklin App. No. 03APP-1284, 2004-Ohio-2840 ...... 12

Debie v. Cochran v. Pharmacy-Berwick, Inc. (1967), 11 Ohio St. 2d 38, 227 N.E. 2d 603 .. 12, 13

Klauss v. Marc Glassman, Inc., Cuyahoga App. No. 84799, 2005-Ohio-1306 ...... 10

Martin v. Christ Hospital, Hamilton App. No. C-060387, 2007-Ohio-2796 ...... 13

McGuire v. Sears Roebuck and Company (1996),

118 Ohio App. 3d 494, 693 N.E. 2d 807 ...... 9, 10, 11, 12

Menke v. Beerman (March 9, 1998), Butler App. No. CA97-09-182 ...... 12

Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St. 3d 2003, 480 N.E. 2d 474 ...... 8, 13

Jackson v. Kings Island (1979), 58 Ohio St. 2d 357, 390, N.E. 2d 810 ...... 8, 13

Perry v. Eastgreen Realty Co. (1978), 53 Ohio St.2d 51, 372 N.E.2d 335 ...... 10

Quinn v. Montgomery Cty. Educ. Serv. Ctr., Montgomery App. No. 20596, 2005-Ohio-808...... 8

Sidle v. Humphrey (1968), 13 Ohio St. 2d 45, 233 N.E. 2d 589 ...... 1, 8, 13

ii Simeone v. Schwebel's Baking Company, Cuyahoga App. No. 90668, 2008-Ohio-5254...... 16

Simmers v. Bentley Constr. Co. (1992), 64 Ohio St. 3d 642, 644, 597 N.E. 2d 504, 506...... 13

Smock v. Bob Evans Farms, Inc. Summit App. No. 02CA008075, 2003-Ohio-832 ...... 13

Whitley v. National City Bank, Cuyahoga App. No. 90095, 2008-Ohio-131 ...... 2, 5, 7

Wilson v. Big Bear Stores Co. (Apri14, 1994), Warren App. No. CA93-09-070 ...... 13

Yocono v. Rite Aid Corp. (Sept. 29, 1993), Summit App. No. 16065 ...... 9

iii I. EXPLANATION OF WHY THIS CASE IS A MATTER OF PUBLIC OR GREAT GENERAL INTEREST

This is a case of first impression. For ahnost two decades, Ohio Appellate Courts created and inconsistently applied "attendant circumstances" as an exception to the open and obvious doctrine. However, this Court has never addressed or adopted whether attendant circumstances are an exception to the open and obvious doctrine in premises liability cases. The last significant premises liability case this Court addressed was Armstrong v. Best Buy Company, Inc., 99 Ohio

St. 3d 79, 2003-Ohio-2573, 788 N.E. 2d 1088 whereby the Court clearly acknowledged in its syllabus that "the open and obvious doctrine remains viable in Ohio. Where a danger is open and obvious, a land owner owes no duty of care to individuals lawfully on the premises. Sidle v.

Humphrey (1968), 13 Ohio St. 2d 45, 233 N.E. 2d 589, approved and followed." However, this

Court has never specifically addressed whether attendant circumstances can be used as an exception to the open and obvious doctrine. The attendant circumstance doctrine impacts almost all premises liability cases, the duty owed by premises owners and is undoubtedly a matter of public or great general interest.

If this Court adopts the doctrine of attendant circumstances as an exception to the open

and obvious defense, this Court needs to address what constitutes an "attendant circumstance"

and when may a court consider attendant circumstances in a commercial premises liability case.

Courts throughout Ohio incorrectly label "attendant circumstances" as a wide range of

inconsistent circumstances. Some courts even use attendant circumstances to create a defect on a

premises where none exists.

If this Court adopts the attendant circumstances doctrine as an exception to the open and

obvious defense, then a necessary prerequisite is identification of when attendant circumstances

1 apply. Courts fail to consider the required three step analysis when analyzing the duty owed in premises liability matters that includes:

(1) whether a defect or hazardous condition exists;

(2) whether the defect of hazard is open and obvious; and

(3) if the defect or hazard is open and obvious, are there "attendant circumstances" that render the defect or hazard less likely to be appreciated or open and obvious.

Instead, appellate courts misconstrue an "attendant circumstance" as a defect on the

property. As a result, courts incorrectly define non-defective, non-hazardous conditions as

defects or hazards because of "attendant circumstances" It is vital that courts understand that

"attendant circumstances" are never considered unless fust a defect of hazardous condition is

identified on the property. Courts cannot use the concept of attendant circumstances to create a

defect or hazard on a property where one does not exist. Thus, this Court has a unique

opportunity to clarify what constitutes an "attendant circumstance" and the three step analysis

that should be employed to determine how and when attendant circumstances are to be

considered when analyzing commercial premises liability matters.

The Court also has an opportunity to address one of the most commonly litigated issues

in premises liability matter: commercial rubber backed mats. The common 4 feet by 6 feet 12

pound commercial rubber backed mat are normally encountered in almost every doorway and

commercial premises throughout the United States. Like natural accumulations of ice and snow

before the Obio Supreme Court addressed the standard to be employed, commercial rubber

backed mats are heavily litigated regarding numerous slip and falls each year. The Eighth

District Court of Appeals has on at least two occasions ruled that a standard commonly

encountered commercial rubber backed mat is a "hazard" because of attendant circumstances.

Whitley v. National City Bank, Cuyahoga App. No. 90095, 2008-Ohio-131; Simeone v.

2 Schwebel's Baking Company, Cuyahoga App. No. 90668, 2008-Ohio-5254. This Court needs to address the role of commonly encountered non-defective commercial rubber backed mats and whether a conunercial preniises owner, that chooses to utilize the mats to make an area more safe, owes a duty to warn an invitee of the presence of the commercial mat. Otherwise store owners will attempt to avoid liability and avoid using this safety feature.

For the foregoing reasons, this matter is of public and great general interest as it applies to almost every premises liability matter in Ohio. This is a matter of first impression before this

Court and desperately needs addressed in order to apply a consistent statement of law in premises liability matters.

II. STATEMENT OF THE CASE AND FACTS

The facts in this case are simple. As set forth in the Eighth District Court of Appeals opinion, the essential facts are as follows: "On February 16, 2006 at approximately 11:00 a.m.,

Mrs. Simeone, a 70 year old woman and her daughter Karen Matejka ("Matejka") arrived at

Schwebel's Baking Company Outlet Store ("Schwebel") in Strongsville, Ohio.

The entrance to Schwebel has two doors separated by a foyer. One door separates the parking lot and the foyer and the second door separates the foyer from the store. In the foyer, shopping carts are stored for the use of the customers. A large heavy black commercial mat is on the floor of the foyer. The commercial mat is 4 by 6 feet, has a rubber back and weighs approximately 12 pounds.

Mrs. Simeone and her daughter entered Schwebel through the first door, obtained a shopping cart in the foyer and entered the store. Mrs. Simeone and her daughter shopped for approximately 15 minutes and noticed that other customers entered the store as well. After paying for their bread, Mrs. Simeone and her daughter proceeded to leave the store.

3 Matejka walked out into the foyer and opened the door leading to the parking lot. Mrs.

Simeone, who was directly behind her daughter and still pushing the shopping cart, tripped over the commercial mat and fell to the floor, fracturing her right femur." Simeone, supra at ¶ 2-5.

It is important to note that Mrs. Simeone and her daughter both admitted that when they entered Schwebel they had no problems entering the store, obtaining a shopping cart and walking across the commercial mat to enter the store. (R. 11, Simeone at pgs 11-12; R. 10, Matejka at pgs

8-9.) It is also important to note that Matejka had no problems leaving the store. She did not notice anything wrong with the commercial mat nor did her foot trip on the mat. She admits nothing was blocking her view of the commercial mat and had she looked she could have seen the black mat on the white linoleum floor. (R. 10 Matejka at pgs. 10-13).

Mrs. Simeone also admitted that she did not look at or notice the commercial mat before she fell but "assumes" the mat was flipped over before her fall because the commercial mat was flipped over after she fell. (R. 11, Simeone at pgs. 16-17, 23-25, 34). Mrs. Simeone and her daughter admit that the glass enclosed foyer was filled with sunlight and nothing was blocking their vision of the black commercial mat. (R.11, Simeone at pgs. 18, 26-27; R. 10 Matejka at p.

13.) Moreover, no evidence exists that anything was wrong or hazardous with the commercial mat at issue. Rather it had been replaced the day before pursuant to an established weekly cleaning program with Aramark, the company from whom Schwebel rents the commercial mats from.

"On February 23, 2007, Mrs. Simeone filed a Complaint in the Cuyahoga County Court of Common Pleas against Schwebel alleging personal injury as a result of the fall. On

September 25, 2007, Schwebel filed its Motion for Sununary Judgment alleging that Mrs.

Simeone could not establish that there was a hidden defect. On October 20, 2007, Mrs. Simone

4 filed her Brief in Opposition arguing that the mat was a latent defect because it was not secured to the floor. She also alleged there were attendant circumstances that diverted her attention as a matter of law, to wit: she was pushing a shopping cart at the time of her fall. On November 7,

2007, the trial court granted Schwebel's Motion for Summary Judgment without opinion."

Simeone, supra at ¶ 7. Mrs. Simeone appealed the trial court's decision to the Eighth District

Court of Appeals.

In a 2 to 1 opinion, the Eighth District Court of Appeals concluded that pushing a shopping cart over a commercial mat was an "attendant circumstance" that created the mat a

"hazard." Specifically, the Eighth District Court of Appeals concluded "we find that these circumstances constitute attendant circumstances, because the possibility of customers pushing shopping carts over a commercial mat increases the risk of the mat curling, rumpling, buckling or sliding; thereby creating a risk of customers tripping and falling. The condition was not open and obvious because Mrs. Simeone testified that she did not notice the mat curled up prior to her fall. However she and her daughter both noticed that the mat was curled up and rumpled after she fell. See Whitley v. National City Bank, Cuyahoga App. No. 90095, 2008-Ohio-131.

Accordingly, we conclude that there was a genuine issue of fact with regard to whether attendant circumstances created conditions that made the curling of the mat not open and obvious. That is, the number of customers pushing shopping carts over the mat made it impossible to anticipate when it would curl or flip over. Id. The sole assignment of error is sustained. Judgment reversed and remanded." Simeone at ¶ 18-20. Thus the court also assumed that the commercial mat was curled up or rurnpled before Plaintiff fell because the mat was curled up after Plaintiff fell.

5 However, as noted by Judge Christine McMonagle in her well written dissenting opinion, nothing was defective with the commercial mat at issue. The majority opinion misconstrued the open and obvious and attendant circumstance doctrines. Specifically, Judge McMonagle's dissenting opinion provides:

I respectfully dissent and would affinn the ruling of the trial court granting summary judgment for the following reasons: 1. There is no evidence in the record that the heavy black commercial rabber-backed mat in the foyer of the bakery was in any manner defective. 2. There is no evidence, expert or otherwise, that such a mat could, or should, be secured to the floor. 3. There is no evidence that the mat was "curled-up" before the fall, and it follows inexorably that there is no evidence that Schwebel Bakery knew or should have known that the mat was curled up. 4. There is no evidence that anyone had ever slipped or tripped on this mat before. 5. The majority's reference to the doctrine of open and obvious is misplaced. There is no evidence on behalf of either party that the mat was an open and obvious danger such that the very nature of the danger served as a waming; a priori, the doctrine of attendant circumstances is not applicable to this case.'

FNl: Attendant circumstances are conditions that surround an open and obvious hazard that tend to obscure the hazard or deflect the invitee's attention away from the hazard. When attendant circumstances exist, a duty to warn of an open and obvious danger may exist.

I would hold that `a shopkeeper owes its business invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition and has the duty to warn its invitees of latent or hidden dangers.' Armstrong v. Best Buy, 99 Ohio St.3d 76, 2003-Ohio-2573, 788 N.E.2d 1088. There is no evidence that Schwebel's maintenance of the premises was anything but appropriate and reasonably safe. Further, I discern no danger here-latent, patent, or otherwise. (Emphasis added.)

Simeone, supra at ¶ 21-27.

6 As noted above by Judge McMonagle, "the majority's reference to the doctrine of open and obvious...[and] the doctrine of attendant circumstances is not applicable to this case."'

Footnote 1 explains that "attendant circumstances are conditions that surround an open and obvious hazard that tend to obscure the hazard or deflect the invitee's attention away from the hazard. When attendant circumstances exist, a duty to warn of an open and obvious danger may exist."

Judge McMonagle's dissent correctly analyzed the role of attendant circumstances and the fact that they are not to be considered unless and until a defect or hazard is established. In this case, no evidence exists that the 12 pound 4 foot by 6 foot standard commercial mat was defective or hazardous. The majority's opinion held that the attendant circumstances of Plaintiff pushing a shopping cart somehow made the mat defective or hazardous. This case and the

Eighth District's previous case of Whitley v. National City Bank, Cuyahoga App. No, 90095,

2008-Ohio-131 exemplifies Ohio Appellate Courts' failure to properly analyze "attendant circumstances" and their role in commercial premises liability cases. In fact Justice Colleen

Conway Cooney noted in her dissenting opinion in YVhitley, supra that no evidence existed that the black commercial mat in Whitley "was a hazard or that National City knew or should have known that it was dangerous." Whitley, supra (Court concluded issue of fact existed regarding whether attendant circumstances created conditions that made the rumpling of the carpet not open and obvious. Specifically, the court held that while the allegedly flipped up mat was an

open and obvious condition, attendant circumstances of customers shuffling over the mats which

were not tacked to the carpeting made it impossible to anticipate when they would rumple or flip

over and therefore the flipped over mat was not open and obvious.) Therefore, this case is a

matter of public or great general interest as it defines whether attendant circumstances are an

7 exception to the open and obvious doctrine; if so what constitutes attendant circumstances and how are they to be applied in commercial premises liability cases.

III. ARGUMENT

A. FIRST PROPOSITION OF LAW

WHETHER OHIO RECOGNIZES ATTENDANT CIRCUMSTANCES AS AN EXCEPTION TO THE OPEN AND OBVIOUS DOCTRINE.

It is well established that a shopkeeper owes a business invitee "a duty of ordinary care in maintaining the premises in a reasonably safe condition and has the duty to warn the invitees of latent or hidden dangers." Armstrong v. Best Buy Co. 99 Ohio St. 3d 79, 80, 2003-Ohio-2573 at

¶5, 788 N.E. 2d 1088, 1089-1090, citing Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.

3d 2003, 480 N.E. 2d 474; Jackson v. Kings Island (1979), 58 Ohio St. 2d 357, 390, N.E. 2d 810.

"When applicable, however, the open and obvious doctrine obviates the duty to warn and acts as a complete bar to any negligence claims." Id. at ¶5. As this Court pointed out in Armstrong, supra, "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."

Id. at ¶13. Thus, "where a danger is open and obvious, a landowner owes no duty of care to

individuals lawfully on the premises." Id. at ¶14 citing Sidle v. Humphrey (1968), 13 Ohio St. 2d

45, 233 N.E. 2d 589 approved and followed.

Case law created an exception to the open and obvious doctrine. Specifically, appellate

courts have held that "attendant circumstances may create a genuine issue of material fact as to

whether a danger was open and obvious." Bounds v. Marc Glassman, Cuyahoga App. No.

90610, 2008-Ohio-5989 at ¶24 citing Quinn v. Montgomery Cty. Educ. Serv. Ctr., Montgomery

App. No. 20596, 2005-Ohio-808; Collins v. McDonald Corp., Cuyahoga App. No. 83282, 2004-

Ohio-4074. This new exception appears to have stemmed from the First District Court of

8 Appeals decision of Armentrout v. Associated Dried Goods Corp. Hamilton App. No. C-890784,

cert. denied (1991), 60 Ohio St. 3d 712, 573 N.E. 2d 672 as cited by McGuire v. Sears, Roebuck

and Co. (1996), 118 Ohio App. 3d 494, 693 N.E. 2d 807. In McGuire, the Hamilton County

Court of Common Pleas addressed whether a customer's assertion that she was distracted by a jewelry and clothing display was sufficient to overcome an "open and obvious" condition on the

floor that caused her to trip and fall. The court acknowledged: "concededly, this court in

Armentrout v. Associated Dried Goods Corp. (Jan. 9, 1991), Hamilton App. No. C-890784,

acknowledged that a store owner may be required to take added precautions despite the obvious

nature of a condition when the store owner has reason to expect that the customer's attention

may be distracted by goods on display, or that the customer may forget the condition after a lapse

of time. Armentrout, should not be read so broadly to apply to any and all displays that are

customarily encountered in retail settings. If this were true, a jury question would always exist in

such cases because the store owner displayed goods for sale and subject to the customer's view.

Rather, the exception to the open and obvious doctrine discussed in Armentrout applies only

where the Plaintiff offers evidence of particular circumstances rendering a particular display or

area of display foreseeably unsafe. See Yocono v. Rite Aid Corp. (Sept. 29, 1993), Summit App.

No. 16065 (distinguished Armentrout)." Id. at 498.

However, the Ohio Supreme Court has never directly addressed or recognized whether

attendant circumstances are an exception to the open and obvious doctrine. Rather this

significant legal exception to the open and obvious doctrine has been allowed to be created and

applied by lower appellate courts without any uniform application. While this Court has

discussed attendant circumstances decades ago as they relate to various circumstances on a case

by case basis such as whether a height differential in a sidewalk is "substantial" or whether ajury

9 question exists because of the surrounding circumstance, this Court has never directly addressed the legal significance of attendant circumstances and the proper analysis courts must employ

when considering them in relation to a premises owner's duty of care. See e.g. Cash v. City of

Cincinnati (1981), 66 Ohio St.2d 319, 421 N.E.2d 1275; Perry v. Eastgreen Realty Co. (1978),

53 Ohio St.2d 51, 372 N.E.2d 335. Therefore, Appellant respectfully requests this Court to

specifically address whether Ohio recognizes attendant circumstances as an exception to the

open and obvious doctrine.

B. SECOND PROPOSITION OF LAW

IF THE COURT RECOGNIZES ATTENDANT CIRCUMSTANCES AS AN EXCEPTION TO THE OPEN AND OBVIOUS DOCTRINE, ATTENDANT CIRCUMSTANCES CANNOT BE USED TO CREATE A DEFECT OR HAZARD ON COMMERCIAL PREMISES.

Appellate Courts have acknowledged as recently as November 20, 2008 that "there is no

precise definition of `attendant circumstances'." Bound, supra at ¶24 citing Klauss v. Marc

Glassman, Inc., Cuyahoga App. No. 84799, 2005-Ohio-1306; McGuire v. Sears Roebuck and

Company (1996), 118 Ohio App. 3d 494, 693 N.E. 2d 807. As a result, and as will be discussed

in further detail below, lower appellate courts cite varying definitions of what constitutes an

attendant circumstance and when they apply. Therefore, it is axiomatic that if this Court

acknowledges attendant circumstances as an exception to the open and obvious doctrine, that the

Court articulate a standard for when courts may consider attendant circumstances. As previously

discussed, a three step analysis needs to be articulated and established that before a court may

consider attendant circumstances in a premises liability case, a court must consider:

(1) A premises owner only owes a duty to warn of hidden or latent defects or hazards on the property. A defect or hazard must first be identified in order to impose liability on a premises owner;

10 (2) If a defect or hazard exists, is it an open and obvious condition? If it is an open and obvious condition, a property owner is relieved of its duty to wam of the defect or hazard; and

(3) A property owner will not be relieved of its duty to wam of open and obvious conditions if attendant circumstances exist that obscure the hazard or defect and deflects the invitees' attention away from the defect of hazard.

Attendant circumstances cannot create a defect or hazard on the property. Attendant circumstances can only be used to obscure an already existing open and obvious hazard. This three step approach would define a uniform analysis of when attendant circumstances should be considered. A structured analysis would clarify when attendant circumstances may be considered and would not permit courts to create or assume a defect or hazard exists on a commercial premises because of attendant circumstances. A uniform analysis or standard would apply to all commercial premises cases, create a clear legal standard and avoid future litigation.

Thus, this issue is a matter of public or great general interest.

C. THIRD PROPOSITION OF LAW

WHAT CONSTITUTES ATTENDANT CIRCUMSTANCES?

As previously stated, Ohio Appellate Courts admit there is no precise definition of

"attendant circumstances." On November 20, 2008, the Eighth District Court of Appeals in

Bounds held: "while `there is no precise definition of 'attendant circumstances' *** they generally include `any distraction that would come to the attention of a pedestrian in the same circumstances and reduce the degree of care an ordinary person would exercise at the time."'

Bounds at ¶24 citing Klauss; See also McGuire v. Sears Roebuck and Company (1996), 118

Ohio App. 3d 494, 693 N.E. 2d 807. Attendant circumstances have also been defined as

"something beyond the plaintiff s control" that "contributes to the fall - other than, or in addition to, the open and obvious danger." Boroff v. Mefjer Stores, Ltd., Franklin App. No. 06APP-1150,

11 2007-Ohio-1495 citing Cummin v. Image Mart Inc., Franklin App. No. 03APP-1284, 2004-Ohio-

2840; Backus v. Giant Eagle, Inc. (1996), 115 Ohio App. 3d 155, 158, 684 N.E.2d 1273.

Attendant circumstances have also been broadly defined as "all facts relating to the event, such as time, place, surroundings or background, and the conditions normally existing that would unreasonably increase the normal risk of a harmful result of the event," even if they are within the plainiffs control. Menke v. Beerman (March 9, 1998), Butler App. No. CA97-09-182;

McGuire v. Sears Roebuck and Co., supra. Justice McMonagle in her dissenting opinion in this case appropriately defined attendant circumstances as "conditions that surround an open and obvious hazard that tend to obscure the hazard or deflect the invitee's attention away from the hazard. When attendant circumstances exist, a duty to warn of an open and obvious danger may exist." Simeone, supra at ¶ 26.

Thus, Ohio Appellate courts have created a multitude of definitions for an "attendant circumstance" for almost two decades. Therefore, it is a matter of public or great general interest to have a uniform definition of what constitutes an "attendant circumstance" and to provide guidance to the courts in their application of Ohio commercial premises law. Thus, it is respectfully requested that this Court accept jurisdiction of this vital legal issue.

D. FOURTH PROPOSITION OF LAW

WHETHER A PREMISES OWNER OWES A DUTY TO WARN OF NORMALLY ENCOUNTERED COMMERCIAL MATS AS A MATTER OF LAW.

Liability of a store owner for failure to protect a customer against injuries on the premises is predicated in Ohio on the store owner's superior knowledge of the specific condition which caused the injury. Debie v. Cochran v. Pharmacy-Berwick Inc. (1967), 11 Ohio St. 2d 38, 227

N.E. 2d 603. A store owner however owes no duty to warn business invitees of open and

12 obvious dangers on the prenuses. Paschal v. Rite Aid Pharmacy, Inc. supra at 203, 480 N.E. 2d at 475. The rationale is that an open and obvious danger is itself a warning and the store owner

"may reasonably expect that persons entering the premises will discover those dangers and take appropriate measures to protect themselves." Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.

3d 642, 644, 597 N.E. 2d 504, 506. This Court has held that "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." Sidle v. Humphrey (1968), 13 Ohio St. 2d 45, 233

N.E. 2d 589, syllabus 2 citing Debie, supra. Similar to natural accumulations of ice and snow, appellate courts have consistently held that commercial rubber backed mats that exist in the entrance ways of almost every commercial premises and normally encountered by patrons are open and obvious as a matter of law and discoverable through ordinary inspection. Smock v. Bob

Evans Farms, Inc. Summit App. No. 02CA008075, 2003-Ohio-832 (curled up corner of floor mat was open and obvious as a matter of law); Wilson v. Big Bear Stores Co. (April 4, 1994),

Warren App. No. CA93-09-070 (rug was open and obvious as it was a darker color than the floor and the area was well lit); Martin v. Christ Hospital, Hamilton App. No. C-060387, 2007-Ohio-

2796 (wrinkled rug was open and obvious as a matter of law and discoverable through ordinary

inspection). In Brown v. The Twins Group-PH, LLC, Clark App. No. 2004CA59, 2005-Ohio-

4197, the Second District Court of Appeals held similar mats were open and obvious where

plaintiff walked on identical mats at other restaurants, she knew the mats were located where she

was walking and the mats were a different color than the flooring. The court noted that mats

"are placed on the floor as a safety measure to prevent people from falling. Although it is

13 common for a mat's corner to flip up, the mats were not hazardous. Even if they had been, they were open and obvious." Id. at ¶16 (emphasis added).

Standard mbber backed commercial mats are located in almost every entrance way of retail establishments. Any potential danger of normally encountered commercial mats flipping over, curling or rampling are an obvious danger that a store owner should expect that an invitee on his premises will discover and realize and protect himself or herself against it. Therefore, store owners should not owe a duty to warn of a normally encountered commercial mat as a matter of law similar to a store owner's duty to warn of a natural accumulation of ice and snow.

Because the duty owed for normally encountered commercial mats is inconsistently applied by

Ohio Appellate Court, is the subject of substantial litigation, and a matter of public or great general interest, Appellant respectfully requests this Court to address the legal standard owed for nonnally encountered commercial mats at retail establishments.

IV. CONCLUSION

The law requires clarification regarding the concept of attendant circumstances. Because this broad concept effects almost all commercial premises liability matters in Ohio and is a matter of public or great general interest, Appellant requests this Court to accept jurisdiction of this matter.

MICHELLE T. SHEE (0 6Z8) PAUL-MICHAEL LAF T 006703 1) REMINGER CO., L.P.A. 1400 Midland Building 101 Prospect Avenue, West Cleveland, OH 44115-1093 PHONE: 216/687-1311 FAX: 216/687-1841 Attomey for Defendant-Appellant

14 CERTIFICATE OF SERVICE

A copy of the foreg oin g was gu mailed q by Decemberre lar U.S. mail on 2008 to:

Paul W. Flowers Attorneys for Appellee Terminal Tower, 35th Floor 50 Public Square Cleveland, Ohio 44113 Ph: 216-344-9393

Michael Shroge 55 Public Square, Suite 2222 Cleveland, Ohio 44113 Ph: 216-861-0804

MICHELLE4. SHEE PAUL-MICHAEL LAF REMINGER CO., L.P.A.

15 VI. APPENDIX

Simeone v. Schwebel's Baking Company, Cuyahoga App. No. 90668, 2008-Ohio-5254.

16 OCT 2 6 2008 CCmtrt af Appeal's uf (94in

EIGHTH APPELLATE DISTTZICT COUNTY OP CUYA.HOGA.

JOUR.NAL ENTRY AND OPINION No. 90668

MADELINE SIMEONE

PLAINTIFF-APPELLANT

vs. SCHWEBEL BAKING COMPANY

DEFENDANT-APPELLEE

JUDGMENT: REVERSED AND REMANDED

Civil Appeal from the Cuyahoga County Common Pleas Court Case No. CV-616709

BEF0RE: Sweeney, A.J., McMonagle, J., and Blackmon, J.

RELEASED: October 9, 2008

JOURNALIZED: OCT 2 0 2008 UCi' 2 4 2008

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ATTORNEYS FOR APPELIANT

Paul W. Flowers Terminal Tower, 35"' Floor 50 Public Square Cleveland, Ohi.o 44113

Leon M. Plevin 55 Public Square, Suite 2222 Cleveland, Ohio 44113

ATTORNEY FOR APPELLEE FILED AND JOURNALIZED PER APP. R. 22(E) Michelle J. Sheehan Reminger & Reminger Co., L.P.A. OCT 2 0 1008 1400 Midland Building 101 Prospect Avenue, West GEIiALU E. FUER T CLERK OF,F4W WU0T APPE :LS Cleveland, Ohio 44115-1093 DEP. A%NO[JidCEiyIE^OFDECiSION PRR APP. R UB), 2Q1 AW 2 RE^`PTV ^ OCT 9 .. 2008

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N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision wi'd be journalized a.n.d wiIl become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this Court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct. Prac.R.11, Section 2(A)(1).

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JAMES J. SWEENEY, A.J.:

Plaintiff-appellant, Madeline Simeone ("Simeone" or "Mrs. Simeone"), appeals from the judgment of the Cuyahoga County Court of Common Pleas which granted the motion for summary judgment of defendant-appellee,

Schwebel Baking Company ("Schwebel"). For the reasons that follow, we reverse

and remand.

A review of the record reveals the following: On February16, 2006, at

approximately 11:00 a.m., Mrs. Simeone, a 70-year old woman, andher daughter

Karen Matejka ("Matejka") arrived at Schwebel Baking Company Outlet Store

("Schwebel") in Strongsville, Ohio.

The entrance to Schwebel has two doors separatedby a foyer. One door

separates the parking lot and the foyer and the second door separates the foyer

from the store. In the foyer, shopping carts are stored for the use of the

customers. A large heavy black commercial mat is on the floor of the foyer. The

commercial mat is 4x6 feet, has a rubber back, and weighs approximately 12

pounds.

Mrs. Simeone and her daughter entered Schwebel through the first door,

obtained a shopping cart in the foyer, and entered the store. Mrs. Simeone and

her daughter shopped for approximately 15 minutes and noticed that other

%@668 '980257 -2- customers entered the store as well. After paying for their bread, Mrs. Simeone and her daughter proceeded to leave the store.

Matejka walked out into the foyer and opened the door leading to the parking lot. Mrs. Simeone, who was directly behind her daughter and still pushing the shopping cart, tripped over the commercial mat and fell to the floor, fracturing her right femur.

On February 23, 2007, Mrs. Simeone filed a complaint in the Cuyahoga

County Court of Common Pleas against Schwebel alleging personal injury as a result of the fall.

On September 25, 2007, Schwebel filed its motion for summary judgment alleging that Mrs. Simeone could not establish that there was a hidden defect.

On October 29, 2007, Mrs. Simeone filed her brief in opposition arguing that the mat was a latent defect because it was not secured to the floor. She also alleged that there were attendant circumstances that diverted her attention as a matter of law, to wit: she was pushing a shopping cart at the time of her fall. On

November 7, 2007, the trial court granted Schwebel's motion for summary judgment without opinion.

It is from this decision that Mrs. Simeone now appeals and raises one

assignment of error for our review.

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"I. The trial judge erred, as a matter of law, in granting summary judgment in favor of defendant-appellee upon all claims."

In this assignment of error, Mrs. Simeone claims that the trial court erred in granting summary judgment in favor of Schwebel because genuine issues of

material fact existed concerning her claim for personal injury.

An appellate court reviews a trial court's grant of summary judgment de

novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102,105,1996-Ohio-336.

"De novo review means that this court uses the same standard that the trial

court should have used, and we examine the evidence to determine if as a matter

of law no genuine issues exist for trial." Brewer v. Cleveland City Schools (1997),

122 Ohio App.3d 378, citing Dupler v. Mansfield Journal (1980), 64 Ohio St.2d

116, 119-120.

Summary judgment is appropriate where it appears that: (1) there is no

genuine issue as to any material fact; (2) the moving party is entitled to

judgment as a matter of law; and (3) reasonable minds can come to but one

conclusion, and that conclusion is adverse to the party against whom the motion

for summary judgment is made, who is entitled to have the evidence construed

most strongly in his favor. Harless v. Willis Day Warehousing Co., Inc. (1978),

54 Ohio St.2d 64, 66; Civ.R. 56(C).

48668 °00259 -4-

The burden is on the movant to show that no genuine issue of material fact exists. Id. Conclusory assertions that the nonmovant has no evidence to prove its case are insufficient. The movant must specifically point to evidence contained within the pleadings, depositions, answers to interrogatories, written admissions, affidavits, etc., which affirmatively demonstrate that the nonmovant has no eviclence to support his claims. Dresher v. Burt (1996), 75 Ohio St.3d 280,

293,1996-Ohio-107; Civ.R.56(C). Unlessthenonmovantthensetsforthspecific facts showing there is a genuine issue of material fact for trial, summary judgment will be granted to the movant.

With these principles in mind, we proceed to consider whether the trial court's grant of summary judgment in favor of Schwebel was appropriate.

In order to defeat a motion for summary judgment on a negligence claim, a plaintiff must establish that a genuine issue of material fact remains as to whether: (1) the defendant owed a duty of care to the plainti.ff; (2) the defendant breached that duty; and (3) the breach of duty proximately caused the plaintiff's injuxy. 7'exler v. D.O. Summers Cleaners & Shirt Laundry Co. (1998), 81 Ohio

St.3d 677, 680.

Here, it is undisputed that Mrs. Simeone was a business invitee at the time of her fall. Accordingly, Schwebel owed Mrs. Simeone a duty of ordinary

I^:^0668 wwAn -5- care to maintain the premises in a reasonably safe conditioti and to warn of hidden defects. Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203.

Schwebel did not have a duty to warn Mrs. Simeone of dangers that were open and obvious. See Armstrong u. Best Buy, 99 Ohio St.3d 79, 80, 2003-Ohio-2573

(the nature of the open and obvious hazard itself serves as the warning). If the open and obvious doctrine is applicable, it obviates the duty to warn and acts as a complete bar to recovery unless the business invitee can establish attendant circumstances. Id. at 80; McGuire v. Sears, Roebuck & Co. (1996), 118 Ohio

App.3d 494. Attendant circumstances refer to circumstances surrounding the event, such as time and place of the event and the environment or background of the event, but particularly to conditions normally existing that unreasonably increase the normal risk of a harmful event. Id.

Here, Mrs. Simeone exited the store pushing a shopping cart full of bread.

She testified that she tripped and fell after the front wheels of the shopping cart got caught on the commercial mat. She testified that immediately after the fall, she noticed that the mat was "curled up." She testified that she did not know if the rug was flipped up before she fell because she was pushing the shopping cart filled with bread and not looking at the floor as she walked out.

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We find that these circumstances constitute attendant circumstances, because the possibility of customers pushing shopping carts over a commercial mat increased the risk of the mat curling, rumpling, buckling, or sliding; thereby creating a risk of customers tripping and falling. The condition was not open and obvious because Mrs. Simeone testified that she did not notice the mat curled up piior to her fall. However, she and her daughter both noticed that the mat was curled up and rumpled after she fell. See 4Vhitley v. National City

Bank, Cuyahoga App. No. 90095, 2008-Ohio-131.

The sole assignment of error is sustained.

Judgment reversed and remanded.

It is ordered that appellant recover from appellee her costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the

Court of Common Pleas to carry this judgment into execution.

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A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

PATRICIA A. BLACKMON, J., CONCURS CHRISTINE T. McMONAGLE, J., DISSENTS

CHRISTINE T. McMONAGLE, J., DISSENTING:

Respectfully, I dissent and would affirm the ruling of the trial court granting summary judgment for the following reasons:

1. There is no evidence in the record that the heavy black commercial rubber-backed mat in the foyer of the bakery was in any manner defective.

2. There is no evidence, expert or otherwise, that such a mat could, or should, be secured to the floor.

3. There is no evidence that the mat was "curled-up" before the fall, and it follows inexarably that there is no evidence that Schwebel Bakery knew or should have known that the mat was curled up.

4. There is no evidence that anyone had ever slipped or tripped on this mat before.

V0668 20262 -8-

5. The majority's reference to the doctrine of open and obvious is misplaced. There is no evidence on behalf of either party that the mat was an open and obvious danger such that the very nature of the dan.ger served as a warning; a priori, the doctrine of attendant circumstances is not applicable to this case.'

I would hold that "a shopkeeper owes its business invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition and has the duty to warn its invitees of latent or hidden dangers." Armstrong v. Best

Buy, 99 Ohio St.3d 76, 2003-Ohio-2573, 788 N.E.2d 1088. There is no evidence that Schwebel's maintenance of the premises was anything but appropriate and reasonably safe. Further, I discern no danger here-latent, patent, or otherwise.

'Attendant circumstances are conditions that surround an open and obvious hazard that tend to obscure the hazard or deflect the invitee's attention away from the hazard. When attendant circumstances exist, a duty to warn of an open and obvious danger may exist.

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