IN the SUPREME COURT of OHIO ROBERT BROSNAN, Et Al. : on Appeal from the Cuyahoga County Court : of Appeals, Eighth Appe

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 :

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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 photograph 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

Brosnan’s testimony, discernability of the “tail” was at issue because its presence behind obstacles in Brosnan’s path was not readily-visible before he tripped on the “tail;” because the bright sun of August 6, 2013, blended the color and contour of the “tail” with the surrounding “grayish,” weathered asphalt; because the bright sun cast no shadow on the

“tail” from Brosnan’s angle of approach; because other concrete installations funneled

Brosnan to cross the low-rise “tail;” because the “tail” was an unexpected and obscure obstacle for Brosnan; because the height of the “tail” posed a foreseeable and substantial risk for tripping; and because the “tail” was located adjacent to a private street where a prudent pedestrian would take special care while crossing to look for vehicles entering from a busy state highway.

A copy of the only photograph taken on the day of injury was offered as summary judgment evidence. Heinen’s’ store manager emailed this photograph from his cell phone to Heinen’s risk manager at 1:17 p.m. on August 6, 2013. The photograph was taken sometime after 10:15 a.m. and before 1:17 p.m. But no photograph was taken by Heinen’s from Brosnan’s approach on August 6, 2013, that would show how the subject “tail” would have appeared to Brosnan before, when or after he tripped.

-5- By comparison, other photographs taken on a similarly-sunny September 5, 2016, looking toward the “tail” that caused Brosnan’s fall, show there would have been no shadow on the elevation of the “tail” to signal its presence to a pedestrian following

Brosnan’s path and that the “tail” measured slightly more than two inches at the point where Brosnan tripped. Thus, Appellants presented photographs to support Brosnan’s testimony of non-discernability of a more-than-two-inch high trip hazard, in spite of which summary judgment was granted.

In addition to photographic evidence of non-discernability and of a more than a two- inch difference in elevations, there was evidence that Heinen’s has no protocols for deciding when and why its parking areas should be repaved, other than irregular inspec- tions by facilities managers. Heinen’s has no protocols for designating curbs and other parking lot features to be painted yellow, to warn cars or pedestrians. Heinen’s has no protocols for directing or marking paths of pedestrian travel. Thus, Heinen’s invites pedestrians to traverse its parking lots, with whatever risks the lots’ architectural and maintenance features may present, when visiting its stores.

Further, the pertinent parking lot had been under consideration for heavy maintenance as early as June 6, 2012, when Heinen’s received a repaving proposal. There is no record of why the Heinen’s lot was not repaved after the need was observed in 2012, but

“[i]t wasn’t a function of cost.” Rather, Heinen’s decided to repave following a second proposal on May 11, 2013, but the repaving was not undertaken until approximately six weeks after the subject incident. If the repaving had been performed before Brosnan’s fall, there would be no issue of coloration or discernability in this case.

-6- In summary, Brosnan is the only witness to discernability from Brosnan’s direction of pedestrian travel on August 6, 2013. There is no other evidence of what a reasonable person would have observed when walking in Brosnan’s path before he tripped. In the absence of direct contradictory evidence, inferences should have been drawn from

Appellants’ photographs and Heinen’s maintenance records, the totality of which would allow reasonable persons to conclude that the “tail” was a non-discernible, unexpected tripping hazard in excess of two inches high within Brosnan’s path of travel, and that he tripped when he reasonably diverted his attention to look out for traffic approaching from his right at the moment when he encountered the “tail.”

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

The pertinent case law for deciding trip and fall cases starts with Griffin v. City of

Cincinnati (1954), 162 Ohio St. 232, where a deviation of one-and-a-half to two inches between two sidewalk slabs gave rise to municipal liability for maintaining a nuisance.

Griffin, supra, was decided after Kimball v. City of Cincinnati (1953), 160 Ohio St. 370, which had held that a variation of one-half to three-quarters of an inch in adjacent sidewalk sections is a slight defect that does not give rise to liability. In Gallagher v. City of Toledo

(1959), 168 Ohio St. 508, the Supreme Court overruled Griffin as it applied to height variations between sidewalk slabs.

-7- Kimball’s immediate progeny have been described in Cash v. City of Cincinnati

(1981), 66 Ohio St.2d 319, as holding that variations of two inches or less are minor, insubstantial, trivial and not actionable as a matter of law. The Supreme Court held in Cash, supra, that Kimball’s bright line rule should be relaxed, by holding a defect of two inches or less would raise merely a rebuttable presumption of non-liability, which could be overcome by proof of attendant circumstances that divert a pedestrian’s attention to render an otherwise insubstantial defect actionable. But Cash left issues for future resolution. One would be whether variations in excess of two inches are substantial and actionable notwithstanding the open and obvious doctrine. The other would be the scope and dispositive requirements of attendant circumstances, and whether they apply only when an elevation of two inches or less exists to overcome the no-duty defense.

In recognition that Cash neither established an exhaustive list of attendant circumstances, nor a definition of that term, language from Stockhauser v. Archdiocese of Cincinnati

(1994, 2nd Dist. App.), 97 Ohio App.3d 29, has found favor when deciding surface defect cases. Id., 97 Ohio App.3d, at 33 (citations omitted; emphasis added):

What may be an attendant circumstance such as to contribute to make a minor defect a dangerous condition defies precise definition. A list of such circumstances would be incomplete and probably would be supplemented by the next case. It would 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. All the circumstances-good or bad must be considered. Whether a single circumstance is sufficient is a narrower situation. It too must be considered for its likely effect, if any.

-8- To render a minor defect substantial, attendant circumstances must not only be present, but must create “a greater than normal, and hence substantial, risk of injury.” The attendant circumstances must, taken together, divert the attention of the pedestrian, significantly enhance the danger of the defect, and contribute to the fall.

The absence of bright line rules in premises liability cases has caused one judge to note, “The open and obvious nature of a hazard on any premises is analyzed by a fact specific inquiry and must be determined on a case by case basis. For this reason previously decided open and obvious cases tend to be of limited value.” Colville v. Meijer Stores

Limited (2012, 2nd Dist. App.), 2012 WL 1964959, 2012-Ohio-2413 para. 43 (Donovan, J., concurring). Another case recognizes “[the] application has not been uniform.” Terry v.

SMJ Growth Corporation (2001, 8th Dist. App.), 2001 WL 1612096.

For instance, the mere presence of more than a two inch variation in pedestrian walkways has been held to create a jury question in Hughes v. Dewey (1985, 8th Dist. App.),

1985 WL 4363; Walker v. City of Parma (1991, 8th Dist. App.), 1991 WL 95090; Eden v. City of Shaker Heights (1991, 8th Dist. App.), 1991 WL 264573; and Presti v. Gamekeepers

Taverne (1994, 8th Dist. App.), 1994 WL 693530, but not in Ziska v. Coyne-Kangesser, Inc.

(1987, 8th Dist. App.), 1987 WL 10611; Riley v. Wendy’s International, Inc. (1999, 8th Dist.

App.), 1999 WL 258187; Walters v. City of Eaton (2002, 12th Dist. App.), 2002 WL 449552,

2002-Ohio-1338; and McGuire v. Sears & Roebuck Company (2007, 8th Dist. App.), 2007 WL

3105270, 2007-Ohio-5720. See also Skowronski v. Waterford Crossing Homeowners’

Association (2011, 8th Dist. App.), 2011 WL 321115, 2011-Ohio-3693, paras. 21-23.

Some cases recommend a two prong analysis to decide when a jury issue is raised, which Thompson v. Kroger, Co. (1992, 2nd Dist. App.), 1992 WL 127708, described thusly:

-9- First, a trial court must determine whether the defect is minor or substantial. If the defect is substantial, a question of fact is raised for the jury’s consideration. If the defect is minor, the trial court must then consider whether any attendant circumstances exist that render the defect unreasonably dangerous and raise a question of fact for the jury.

Accord: Svetlic v. Twin Valu Stores (1995, 8th Dist. App.), 1995 WL 44658.

In other cases, the presence or not of a two inch variation has been held to create a standard of decision only if the variation is between sidewalk slabs, while in most cases, a defect in any pedestrian walkway will implicate the two inch presumption analysis.

Compare Pochatek v. Minoff (1995, 8th Dist. App.), 1995 WL 428555 (sidewalk slabs required) with Ziska v. Coyne-Kangesser, Inc., supra (parking lot surface) and Hughes v.

Dewey, supra (edge of driveway at private residence).

Respectfully, appellate variations in deciding trip and fall cases in spite of relatively comparable but variable fact patterns, suggests that a re-evaluation is overdue.

The courts below relied upon Bounds v. Marc Glassman, Inc. (2008, 8th Dist. App.),

2008 WL 4951036, 2008-Ohio-5989, to sustain summary judgment for Heinen’s. The trial court held that Bounds, supra, required it to find that typical traffic in a parking lot can never be an attendant circumstance because typical traffic is a commonplace occurrence.

The court of appeals followed that holding.

Bounds cites Cooper, supra, and Seifert v. Great Northern Shopping Center (1998, 8th

Dist. App.), 1998 WL 775013, to suggest because vehicles are “commonplace in a store parking lot,” they “do not [without more] create a distraction, or attendant circumstance, that would reduce the degree of care an ordinary person would exercise.” Bounds, 2008-

Ohio-5989, at para 25.

-10- Read closely, the discussion in Bounds of commonplace occurrences is mere obiter dicta, because the Court decided that the plaintiff’s prior knowledge of potholes in the parking lot defeated her claim of attendant circumstances. Id., at para. 28. But if Bounds proposes that commonplace occurrences can never be an attendant circumstance, the history of previously-decided case law suggests that using commonplace circumstances as a bright line rule is misplaced. See, for instance, Cooper v. Meijer Stores, supra; Gamby v.

Fallen Timbers Enterprises (2003, 6th Dist. App.), 2003 WL 22233528, 2003-Ohio-518;

McGuire v. Sears Roebuck & Co., supra; and Helms v. American Legion, Inc. (1966), 5 Ohio

St.2d 60, where the Supreme Court referred to imperfections in a private landowner’s premises that are minor, or trivial and hence not actionable because they are “commonly encountered.” The Supreme Court was referring to defects (i.e., the duty of care) and not to attendant circumstances that are commonly encountered, but the Eighth and other districts have distorted the “commonly encountered” analysis of Helms v. American Legion, supra, to apply it at the attendant circumstance level of analysis, rather than limiting “commonly encountered” conditions to analyzing whether a defect is minor, insubstantial, trivial and not actionable. See Kimball, supra.

The variation of decisions in resolving trip and fall cases strongly suggests that the time has come for the Supreme Court to resolve whether a height differential of more than two inches raises an inference of negligence that imposes a duty of care that overcomes the no-duty analysis of the open and obvious doctrine.

-11- Proposition of Law No. II: THE OPEN AND OBVIOUS DE- FENSE NO LONGER APPLIES IN OHIO JURISPRUDENCE

The progressively variable appellate decisions that apply the open and obvious doctrine to defeat a premises liability claim have tipped the balance of fact-finding from the role of relying on a jury to favoring the gate-keeping role of trial court discretion.

In Schindler v. Gale’s Superior Supermarket, Inc. (2001, 8th Dist. App.), 142 Ohio

App.3d 146, the Cuyahoga County Court of Appeals adopted comparative negligence analysis as the best means to resolve premises liability disputes, consistent with the role of juries in jurisprudence. The Ohio Supreme Court abrogated Schindler, supra, in Armstrong v. Best Buy Company (2003), 99 Ohio St.3d 79, to reaffirm the open and obvious doctrine.

But before reaffirming the open and obvious defense, the Supreme Court noted, 2003-Ohio-

2573, para. 9 (citations omitted):

We are cognizant of the fact that some courts have abolished the open-and-obvious rule in favor of a comparative-negligence approach. These courts, like that of Schindler, look at obviousness of the hazard as one factor to be taken into ac- count in determining a plaintiff's comparative negligence. Other courts have adopted Restatement of the Law 2d, Torts (1965), Section 343A, which finds liability when the landowner should have anticipated harm caused by obvious dangers.

As recognized in Prosser, Torts (4th ed., 1971), at 15, “There is good reason . . . to make a conscious effort to direct the law along lines which will achieve a desirable social result, both for the present and for the future.”

It is time for Ohio to change course and abrogate the open and obvious defense.

Respectfully, in concurring, dissenting and collateral opinions, a majority of the

Justices of the Supreme Court sitting during the pendency of the present appeal, had

-12- invited a re-examination of the open and obvious defense. See Lang v. Holly Hill Motel

(2009), 122 Ohio St.3d 120, 2009-Ohio-2495, concurring opinion of Lanziger and O’Connor and dissenting opinion of former Justice Pfeiffer, and Ward v. Wal-Mart Stores, Inc. (2001,

11th Dist. App.), 2002 WL 5315, 2001-Ohio-4041, where the pre-Armstrong dissent of then- appellate, former Justice O’Neill argued for a change.

When four members of a seven-member court at various times doubt the viability of a defense, the time has come, as Prosser proposes, “to find good reason to depart” from stare decisis. Prosser, op. cit., at 15.

The open and obvious defense is based on two inconsistent assumptions. On the one hand, it purports to exist because a landowner has no duty to warn or eliminate a risk that an invitee would be equally qualified to observe and avoid for his or her own safety, thereby imposing a duty on the invitee but not the owner. On the other hand, the landowner must shoulder a duty notwithstanding the “no duty” defense, when an invitee is distracted by attendant circumstances (not necessarily of the landowner’s creation) that excuse the invitee from taking care for his or her own safety. If “no duty” existed under the former assumption, why should the second assumption impose duty, especially when attendant circumstances can be ephemeral, of uncertain repetition and not necessarily of a landlord’s creation? Respectfully, the variability of decisions in open and obvious jurisprudence suggests the wisdom of taking a different path to achieve a just result. See, for instance, Foster v. Costco Wholesale Corporation (2012), 128 Nev. Adv. Op. 71, 291 P.3d

150.

-13- Stated again, if the open and obvious defect is not actionable in the first place because the landowner has no duty to warn or protect against its existence, how then can we impose a duty on the landowner when an attendant circumstance exists? If the landowner had no duty at the outset, why later?

For the reasons discussed in Justice Lanziger’s concurrence in Lang v. Holly Hill

Motel, supra, and in then-appellate Judge O’Neill’s dissent in Ward v. Wal-Mart Stores, Inc., supra, “the time to abandon the fiction of an ‘open and obvious’ hazard has arrived.” 2001-

Ohio-4041. See also Gibson v. Leber (2014, 11th Dist. App.), 19 N.E.3d 997, 2014-Ohio-4541, para. 27. For surrounding states, see Kessler v. Visteon Corp. (2006, 6th Cir.), 448 F.3d 326, for how Michigan narrows the open and obvious defense by applying Section 343(A) of

Restatement (Second) of Torts; Roumbos v. Vazanellis (2017, Indiana Ct. Apls.), 71 N.E.2d 64;

Dick’s Sporting Goods v. Webb (2013, Ky. Sup.Ct.), 413 S.W.3d 891; Lissner v. Wal-Mart

Stores East, L.P. (2009, W.D. Pa.), ___ F.Supp.2d ___, 2009 WL 499462; and Hersh v. E-T

Enterprises, Ltd. (2013, 232 W.Va. 305), 752 S.E.2d 336, all applying Section 343(A) to a premises liability claim to derogate in varying degrees the open and obvious defense.

Good reasons exist to redirect the law to achieve a socially-desirable result.

Thus, public policy and promoting consistently-applied standards of decision favor accepting jurisdiction of this appeal.

CONCLUSION

Heinen’s maintained a tripping hazard on August 6, 2013, with a height of more than two inches in an area where a pedestrian would foreseeably walk distracted by traffic while

-14- heading to Heinen’s’ front door. The hazard was not readily discernible due to the effects of a bright sun that eliminated shadows, and how the sun affected the color of surrounding structures and eliminated shadows to delineate the hazard. Discernability was compro- mised by the hazard’s location in an obscure jumble of artifacts between a dysfunctional planter and an adjoining bumper strip and lamp post. Objectively, the location of the hazard was not bound to be anticipated. The hazard lacked white or yellow paint to warn a pedestrian of its presence, and it was placed at a location that, compared to features on other end-of-parking rows in the same parking lot, did not serve an obvious purpose. It was a trap.

But even if the defect was open and obvious, Brosnan’s attention was diverted by the totality of the circumstances, including the objective necessity of looking to avoid any vehicular traffic on Heinen’s’ private street.

Based on reasonably-disputed material facts, reasonable persons could find in

Appellants’ favor.

For these reasons, and because of continued misapplication by various courts of appeal of the pertinent case law, the Supreme Court should accept jurisdiction of this appeal to evaluate the non-viability of the open and obvious defense as a standard of decision.

-15- STEPHEN G. THOMAS CO., L.P.A. Attorney for Appellants

/s/ Stephen G. Thomas By: 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

CERTIFICATE OF SERVICE

I hereby certify that on April 12, 2018, the foregoing Appellants’ Memorandum in Support of Jurisdiction was filed electronically using the Court's EM/ECF system. Notice of this filing will be sent by operation of the Court's electronic filing system to all parties indicated on the electronic filing receipt, the issuance of which shall be deemed a transmis- sion for purposes of service pursuant to Civ.R. 5(B)(2)(f). Parties may access this filing through the Court's EM/ECF system. I hereby further certify that on April 12, 2018, a copy of the foregoing Appellants’ Memorandum in Support of Jurisdiction was sent by regular U.S. mail to the following:

Patrick M. Roche Collins, Roche, Utley & Garner, LLC 800 Westpoint Drive, Suite 1100 Cleveland, Ohio 44115 Attorney for Appellee

STEPHEN G. THOMAS CO., L.P.A. Attorney for Appellants

/s/ Stephen G. Thomas _ By: Stephen G. Thomas (0007382)

-16-