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Supreme Court of Ohio Clerk of Court - Filed April 12, 2018 - Case No. 2018-0520 IN THE SUPREME COURT OF OHIO ROBERT BROSNAN, et al. : On Appeal from the Cuyahoga County Court : of Appeals, Eighth Appellate District Appellants : : -vs- : Court of Appeals Case No. CV-16-105207 : HEINEN’S, INC., et al. : : Appellee : _________________________________________________________________________________________________________ APPELLANTS’ MEMORANDUM IN SUPPORT OF JURISDICTION _________________________________________________________________________________________________________ STEPHEN G. THOMAS (0007382) [email protected] Stephen G. Thomas Co., L.P.A. 100 North Main Street, Suite 235 Chagrin Falls, Ohio 44022 (440) 247-4765 (440) 247-7446 - fax Attorney for Appellants PATRICK M. ROCHE (0071359) [email protected] Collins, Roche, Utley & Garner, LLC 800 Westpoint Drive, Suite 1100 Cleveland, Ohio 44115 (216) 916-7730 (216) 916-7725 - fax Attorney for Appellee TABLE OF CONTENTS Page EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST. 1 STATEMENT OF THE CASE AND FACTS. 2 ARGUMENT IN SUPPORT OF PROPOSITION OF LAW. 7 Proposition of Law No. I: AN ELEVATION CHANGE IN EXCESS OF TWO INCHES IN A PATH FOR PEDESTRIAN TRAVEL, WHICH NEED NOT BE ON A MUNICIPAL SIDEWALK, CREATES AN ISSUE OF NEGLIGENCE FOR RESOLUTION BY A JURY IN THE ABSENCE OF INDISPUTABLE EVIDENCE OF CONTRIBUTORY NEGLIGENCE. 7 Proposition of Law No. II: THE OPEN AND OBVIOUS DEFENSE NO LONGER APPLIES IN OHIO JURISPRUDENCE.. 12 CONCLUSION.. 14 CERTIFICATE OF SERVICE. 16 APPENDIX Appx. Page APPENDIX A - Court of Appeals Journal Entry dated 2/28/18. 17 APPENDIX B - Court of Appeals Journal Entry dated 2/28/18. 20 APPENDIX C - Court of Appeals Journal Entry dated 1/8/18. 21 APPENDIX D - Court of Appeals Journal Entry and Opinion dated 11/2/17. 22 APPENDIX E - Court of Common Pleas Journal Entry dated 11/16/16. 40 -i- EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST This case presents a matter of public or great general interest because the lower courts of Ohio, and especially panels in the Eighth District Court of Appeals, have been unable to develop a reasonably consistent method for resolving trip and fall cases. This appeal asks the Supreme Court to re-evaluate if the open and obvious defense should continue as a complete bar in a premises liability case, and if so, to evaluate how the so-called “two-inch rule” implicates that doctrine. The subject case concerns a slightly more than two-inch change in elevation in a parking area through which patrons of Appellee’s grocery store were invited to walk. Appellee Heinen’s, Inc. (“Heinen’s”) negligently maintained and tolerated the elevation change as a trip hazard that caused Appellant Robert Brosnan (“Brosnan”) to fall on a bright sunny day, with the consequential loss of vision in his right eye. Appellants assert that the more-than-two-inch change in elevation created an unreasonable trip hazard and that the elevation change raised an inference of negligence either because a more-than-two-inch change in elevation should be analyzed under a landlord’s duty of ordinary care rather than under the no-duty rule of the open and obvious doctrine, or alternatively, that the open and obvious doctrine should be abrogated in Ohio. Inconsistent appellate treatments of the two-inch rule and the open and obvious defense make clarity of decision a matter of public or great general interest for both owners and occupiers and the invitees to their premises. The courts below disposed of the case by applying the open and obvious defense to Appellants’ claims. The courts’ reliance upon the open and obvious defense necessarily -1- disregarded evidence that the change in elevation was not open and obvious because of the effect of bright sunlight conditions on the coloration of concrete, that the trip hazard was not open and obvious because sunlight obviated definitive shadowing, and because the proximity of the trip hazard to a private street for vehicular traffic in front of the subject grocery store, which diverted Brosnan’s attention, was a fact from which reasonable persons could conclude that attendant circumstances imposed a duty of care on Heinen’s notwithstanding the open and obvious defense. Thus, this case presents a full spectrum of operative facts that would allow a thorough analysis of premises liability standards that have begged for clarification since Cash v. City of Cincinnati (1981), 168 Ohio St.2d 319, was decided almost 40 years ago. STATEMENT OF THE CASE AND FACTS The Cuyahoga County Court of Common Pleas disposed of Appellants’ claim by granting Appellee’s Motion for Summary Judgment. In its opinion, attached hereto as Appendix E, the trial court found “no evidence of a defective or unsafe condition in the parking lot that caused plaintiff’s fall [and that] traffic in the parking lot [did not constitute an attendant circumstance because] the traffic in the parking lot at the time was not out of the ordinary.” In essence, the trial court held that ordinary conditions in a parking lot can never rise to the level of attendant circumstances, and that a greater than two-inch change in elevation would never implicate whether a defective or unsafe condition has been negligently maintained in a path for pedestrians. The decision of the Eighth District Court of Appeals involved an extensive discussion of the two-inch rule and the open and obvious defense, but failed to explain how those -2- principles apply to the facts of the case. Rather, the court of appeals in its conclusion merely adopted and reiterated the trial court’s opinion granting summary judgment, and did so without analyzing Appellants’ challenge to the open and obvious defense. See Appendix D. Following that decision, Appellants applied for reconsideration based on a factual issue in the court of appeals’ decision as to whether a defect of more than two inches was involved. In denying Appellants’ Application for Reconsideration, the panel said the “[m]otion . does not call the court’s attention to any obvious errors . .” See Appendix B. Appellants also applied for certification of a conflict. That application was denied without opinion. See Appendix C. Appellants also sought an en banc review based on how specific panels of the Eighth District Court of Appeals have variously applied the two-inch rule. Denying en banc consideration, a panel of the Eighth District found none of the cases cited in the application “held that when changes in elevation exceed two inches, the open and obvious doctrine is not available as a complete bar to liability.” (Emphasis in original.) The decision also held that the two-inch rule applies only to municipal sidewalks, and denied en banc review, without analyzing how the two-inch rule could affect an open and obvious defense. See Appendix A. Brosnan suffered complete blindness in his right eye on August 6, 2013, after he tripped over a hazard in a pedestrian path for entry into Heinen’s grocery store. Brosnan had parked and was about to cross a private street for vehicular traffic that services a string of stores, when he tripped while looking to avoid possible traffic from his right. -3- Brosnan’s was 71 years of age. He had stopped at approximately 10:15 a.m. on August 6, 2013, on his way to work to buy an orange. He tripped over the hazard because it was not easily discernible and he was watching out for cross-traffic. Brosnan described the hazard as a “tail” that he first observed after he fell. Using a copy of a contemporaneous photograph of the accident site, Heinen’s had Brosnan identify the diagonal path from where he had parked to where he fell. The photograph was never identified as a fair and accurate portrayal of conditions at the accident site, and it was taken looking at the location from which Brosnan had walked rather than from where he walked in the direction that he was walking. It did not photo- graph conditions he would have seen. As a result, the photograph did not portray the conditions Brosnan would have observed before he fell. The “tail” was a low-rise artifact wedged between a higher concrete triangular, gravel-filled planter to the left of where he fell, and a still-higher concrete parking divider (or “bumper strip”) to the right, and over which Brosnan walked before he fell. Brosnan described the color of the asphalt where he fell as “grayish,” “it wasn’t fresh asphalt” and he said the “tail” probably was “a couple inches high,” as opposed to a three- to four-inch high “bumper strip” he crossed before he encountered the tail. He saw the triangular planter on his left and the parking divider on his right before he tripped on the “tail.” The “tail” lay across his path of travel, at the edge of and parallel to the nearest of two lanes for traffic entering and exiting Ohio State Highway Route 306. Brosnan said he did not observe the “tail” because “it was blending in with the - - with everything,” because “it was a bright sunny day and so, you know, it blended in pretty -4- good with the concrete” and because his attention was diverted before tripping “to make sure there were no cars coming” from his right, “to make sure there wasn’t going to be a car coming down” from the Ohio State Highway Route 306 entrance to the shopping center. He said that he didn’t see the “tail” in part because “the tail, as I call it, I guess I just didn’t expect it to be there either. It wasn’t making any logic.” In summary, Brosnan was the only “witness” to his accident and based solely on

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