Carpenter et al v. Kmart Corporation

Filing 29

Memorandum Opinion and Order granting Defendant K-Mart's 20 Motion for summary judgment. Magistrate Judge Kathleen B. Burke on 8/2/2017. (P,G)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROSA CARPENTER, et al.,
Plaintiffs,
v.
K-MART CORPORATION,
Defendant.

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CASE NO. 4:16-cv-1609

MAGISTRATE JUDGE
KATHLEEN B. BURKE

MEMORANDUM OPINION & ORDER

I. Introduction
This is a negligence action governed by Ohio law.1 Plaintiffs Rosa and Christopher
Carpenter, a married couple, seek to recover damages for injuries that resulted when Rosa
Carpenter slipped and fell on an unidentified orange liquid that was on the floor of Defendant KMart’s store while she and her husband were shopping on June 1, 2014.
K-Mart has filed a Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56
asserting that it is entitled to judgment as a matter of law because the spill was open and obvious
and, therefore, under Ohio law it had no duty to warn.2 Doc 20. Plaintiffs filed an Opposition
(Doc. 26) and K-Mart replied. (Doc. 28). As discussed more fully below, there is no genuine
issue of material fact regarding whether the spill was an open and obvious hazard. Under Ohio
law, it was, and K-Mart therefore did not owe Plaintiffs a duty to warn. Because there is no

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Plaintiffs filed this action on May 31, 2016, against Defendant K-Mart, Store No. 4939 and K-Mart Corporation in
the Trumbull County Court of Common Pleas. Doc 1. On June 24, 2016 Kmart removed the matter to this Court
based on diversity jurisdiction. Doc. 1.
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K-Mart also argues that it did not have notice or constructive notice of the spill. Doc. 20, pp. 11-14. Because the
Court finds that the spill was open and obvious, it does not reach this argument.

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genuine issue of material fact with respect to whether the hazard was open and obvious, K-Mart
is entitled to summary judgment.
II. Background Facts
Rosa Carpenter (“Carpenter”) described the facts preceding the accident in her deposition
testimony. Doc. 19-2 (Rosa Carpenter deposition). She testified that, on June 1, 2014, she and
her husband were shopping at K-Mart to purchase specific items on their shopping list. Id., pp.
24-25, 27. They entered K-Mart through one of the main doors. Id., p. 27. They went by the
“Wall of Values” when they first entered the store and together proceeded up and down the
various grocery aisles.3 Id., pp. 28-29, 35.
After approximately thirty minutes in the store, the Carpenters completed their grocery
shopping and were separately walking toward the checkout area. Id., pp. 37, 38. Carpenter
walked down an aisle with the Wall of Values on her left and, on her right, a series of tables
positioned at an angle somewhat perpendicular to the Wall of Values. Id., pp. 37, 42. As she
walked, she looked at the items on the Wall of Values to her left and the cookies and bread on
the tables to her right to see if she wanted to buy any items. Id., pp. 42, 52. There were no other
shoppers in the aisle. Id., p. 49. Carpenter was not pushing a shopping cart; rather, her husband,
walking parallel to her and on the other side of the tables, pushed the cart. Id., pp. 45, 49.
While Carpenter was walking down the aisle, she felt her left foot slip and she fell,
injuring her right knee and ankle. Doc 19-2, pp. 56-57. When she was on the floor, she noticed
for the first time that there was a puddle of liquid and that she was sitting in it. Id., p. 45.

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Carpenter had been in the K-Mart store numerous times in the past. Doc. 19-2, p. 23. The Wall of Values was in
the grocery department and Carpenter was familiar with the layout of the grocery department. Id., pp. 24, 32. In
their brief, Plaintiffs describe the “Wall of Values” as “an area of promotional and/or sale merchandise.” Doc. 26, p.
1. Defendants state that the Wall of Values is “where sales merchandise was displayed.” Doc. 20, p. 3.

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Carpenter’s husband did not see her fall but came to her aid when he heard her fall. Doc.
19-3, pp. 12. The Carpenters continued to the checkout counter and told the checkout clerk
about Carpenter’s fall. Doc. 19-4, p. 13 (Deposition of Polly Wodogaza, the then-operations
manager on duty). The checkout clerk notified Wodogaza and Wodogaza and Carpenter’s
husband walked to the spill. Id., pp. 13, 15-16. There is no dispute that the spill was an
unidentified, orangeish-brown liquid and that it took up almost one floor tile, which is one square
foot. Id., p. 16; Doc 19-2 pp. 45-50; Doc. 22, ¶3 (Wodogaza Declaration). Observable from the
photographs later taken by the Carpenters and attached to Carpenter’s deposition is that the floor
tiles appear to be a whitish-gray color with black specks. See, e.g., Doc. 19-10 (photograph of
floor tiles); Doc. 19-2, p. 39-40.
III. Summary Judgment Standard of Review
Rule 56 of the Federal Rules of Civil Procedure provides that “[t]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. The movant
“bears the initial responsibility of informing the district court of the basis for its motion,
identifying those portions of the pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, which it believes demonstrates the absence of
a genuine issue of material fact.” Celotex Corp. v. Catrett¸477 U.S. 317, 323 (1986) (internal
quotations omitted).
After the moving party has carried its initial burden of showing that there are no genuine
issues of material fact in dispute, the burden shifts to the non-moving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–587 (1986). “Inferences to be drawn from
the underlying facts . . . must be viewed in the light most favorable to the party opposing the

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motion.” Id. at 587 (internal quotations and citations omitted). However, the non-moving party
“must do more than simply show that there is some metaphysical doubt as to the material facts.”
Id. at 586. The non-moving party must present specific facts that demonstrate there is a genuine
issue of material fact for trial. Id. at 587. “The ‘mere possibility’ of a factual dispute is not
enough.” Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1986).
“Only disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). “A genuine issue for trial exists ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’” Muncie Power Products, Inc.
v. United Technologies Automotive, Inc., 328 F.3d 870, 873 (6th Cir. 2003) (quoting Anderson,
477 U.S. at 248). Thus, for a plaintiff to avoid summary judgment, “there must be evidence on
which a jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. Accordingly,
in determining whether summary judgment is warranted, a judge generally asks “whether there is
evidence upon which a jury can properly proceed to find a verdict for the party producing it,
upon whom the onus of proof is imposed.” Id. (citation omitted).
IV. Law
This case involves the duty owed by a shopkeeper to its invitees. In Ohio, “[a]
shopkeeper owes business invitees a duty of ordinary care in maintaining the premises in a
reasonably safe condition so that its customers are not unnecessarily and unreasonably exposed
to danger.” Paschal v. Rite Aid Pharmacy, Inc., 480 N.E.2d 474, 475 (Ohio 1985); see also
Presley v. City of Norwood, 303 N.E.2d 81, 83 (Ohio 1973). “A shopkeeper is not, however, an
insurer of the customer’s safety.” Paschal, 480 N.E.2d at 475. Thus, a store has no duty to warn
when a danger is open and obvious. Id.; Armstrong v. Best Buy Co., 788 N.E.2d 1088, 1091

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(Ohio 2003). A danger is open-and-obvious when it is “observable,” i.e., “is discoverable or
discernible by one who is acting with ordinary care under the circumstances.” Hissong v. Miller,
927 N.E.2d 1161, 1166 (Oh.Ct. App. 2010) (citations omitted). Courts employ an objective, not
subjective, standard when determining whether a hazard is open and obvious. Id. Whether the
plaintiff actually saw the hazard prior to being injured is not determinative. Id.
Ohio courts have recognized that there may be “attendant circumstances” that “divert the
individual’s attention from a hazard and therefore excuse her failure to observe it.” Johnson v.
Southview Hosp., 2012-Ohio-4974, ¶ 16, 2012 WL 5292988, at *4 (Oh. Ct. App. Oct. 26, 2012)
(citing Olivier v. Leaf & Vine, 2005–Ohio–1910, ¶ 22). Attendant circumstances encompass any
distraction the individual encounters that causes her to reduce the degree of care that an ordinary
person would exercise. Id.; see also McGuire v. Sears, Roebuck and Co., 693 N.E.2d 807, 810
(Ohio Ct. App. 1996). They do not include situations regularly encountered in a retail setting.
Id., at 811.
V. Analysis
K-Mart argues that it did not owe Carpenter a duty to warn of the spill because the spill
was open and obvious. The Carpenters contend that the spill was not open and obvious because
of attendant circumstances—K-Mart’s Wall of Values distracted its customers by attempting “to
attract its patron’s attention in order to purchase merchandise.” Doc 26, p. 3. In support of their
argument, Plaintiffs rely on a single case, Youngerman v. Meijer, Inc., No. 15732, 1996 WL
531628 (Ohio Ct. App. Sept. 20, 1996).
As detailed above, the spill in this case was a puddle of unidentified orangeish-brown
liquid, almost one foot square, in the middle of the store aisle devoid of other shoppers, on a
whitish-gray-colored floor. In other words, the spill was observable, i.e., “discoverable or

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discernible by one who is acting with ordinary care under the circumstances.” Hissong, 927
N.E.2d at 1166; Andler v. Clear Channel Broadcasting, Inc., 670 F.3d 717, 725 (6th Cir. 2012).
See also Cintron-Colon v. Save-A-Lot, 2014 Ohio 4574, ¶¶ 12-14, 2014 WL 5306788, at **3-4
(Ohio Ct. App. Oct. 16, 2014) (bright yellow liquid on a store’s white floor was open and
obvious as a matter of law); Venneri v. Marc Glassman, Inc., 2013 Ohio 560, ¶ 13, 2013 WL
620265, at *3 (Ohio Ct. App. Feb. 14, 2013) (long, green plant stem lying on a cream-colored
store floor was open and obvious as a matter of law); c.f. Elson v. Wal-Mart Stores, Inc., 2017
WL 1546883, at *4 (S.D.Oh. April 28, 2017) (issue of fact existed regarding whether darkcolored berries on a dark floor near a dark rug were open and obvious); Middleton v. Meijer,
Inc., 2010 Ohio 3244, ¶¶ 2, 17, 2010 WL 2706303, at *1, 4 (Ohio Ct. App. July 9, 2010) (issue
of fact present regarding whether a clear puddle of laundry detergent on a light colored floor was
open and obvious).
Plaintiffs argue in their brief that the spill was not observable because no one saw the
spill prior to Carpenter’s fall. Doc. 26, p. 3. But they present no evidence that any person, either
an employee of the store or a customer, walked down the aisle or in the area of the spill and
failed to see the spill. They provide no other argument or evidence to support their position that
the spill was not observable.4 Instead, they point to attendant circumstances that purportedly
caused a distraction, rendering the spill not open and obvious. Doc. 26, pp. 3-4.

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The following exchange occurred at Carpenter’s deposition:
Q: How is it that you didn't see [the spill] as you were walking down the aisleway? Do you have any
explanation for that?
A. Because I was looking at the wall of value[s].
Q. Had you been looking, you would have seen it, right?
A. If I looked at my feet while I walk, yes.
Q. Okay. Well, if you had looked out ahead of you, you would have seen it, correct?
A. No.
Q. Why not?
A. I don't know.

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The only attendant circumstance Carpenter identifies is the fact that the spill was in the
aisle called the Wall of Values, which included sale items designed to attract shoppers’ attention.
Doc. 26, pp. 3-4. But “when people go into a store, they normally expect to find merchandise on
display....if the mere existence of merchandise were enough to negate the open and obvious
doctrine, the [attendant circumstance] exception would swallow the rule.” Novik v. Kroger Co.,
2011 WL 5354264, at *7 (Oh. Ct. App. Nov. 7, 2011) (quoting Williams v. Lowe’s of
Bellfontaine, 2007–Ohio–2045, at ¶ 23 (Oh. Ct. App. Apr. 30, 2007)); see also McGuire, 693
N.E.2d at 498 (if “any and all displays that are customarily encountered in retail settings” could
be broadly labeled distractions, every case would have to go to the jury; instead, a plaintiff
overcomes the open and obvious doctrine “only where [she] offers evidence of particular
circumstances rendering a particular display or area of display foreseeably unsafe.”). Carpenter
describes a K-Mart display that is customarily encountered in a retail setting, i.e., an aisle
dedicated to sale items. She does not offer evidence demonstrating that the Wall of Values aisle
was foreseeably unsafe. See id. In other words, she has not presented evidence of attendant
circumstances sufficient to overcome the open and obvious doctrine.
Plaintiffs’ reliance upon Youngerman is misplaced. In Youngerman, the plaintiff was
pushing her cart through the frozen foods section of a grocery store when she slipped and fell in
a large puddle of water that had accumulated from a leaking freezer. Id. at *1. The court found
that a genuine issue of fact prevented it from concluding, as a matter of law, that the spill was
open and obvious. The court described how supermarkets provide carts for shoppers to push
ahead of them, “heaped with items” obstructing their view. Id. at *9. The court also commented

Doc. 19-2, p. 51. The above exchange is not evidence that the spill was unobservable because Carpenter did not
explain why she answered that she would not have seen the spill had she looked out ahead of her.

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that shoppers were often distracted by overhead signs, which they must read to find their
purchases, and that their “attentions are often diverted from the floor because they are scanning
the packed shelves to locate the food items and brands that they desire” and to check which items
are on sale. Id. The court observed,
Nevertheless, we do not suggest that these distractions relieve customers of their duty to
exercise ordinary care in maneuvering through grocery stores. We only conclude that
these distractions should be taken into account in determining whether the customer
exercised ordinary care under the circumstances. The customer’s actions should be
judged against whether a customer exercising ordinary care under those circumstances
would have seen and been able to guard him or herself against the condition.
Id.
The Youngerman court found the following facts, which are not present in this case,
significant in determining that an issue of fact existed as to whether the spill was open and
obvious: (1) the spill was water, a clear liquid; and (2) the plaintiff had testified that her view
was impeded by her cart. Those facts relied on by the court in Youngerman are not present in
this case. First, in this case, the liquid on the whitish-gray floor tile was not clear; it was
orangish-brown colored and, thus, visible on the whitish-gray tile. Second, Carpenter was not
pushing a shopping cart. Thus, her view was not impeded by a store-provided cart.
The Youngerman court also found persuasive the plaintiff’s testimony that she was
“distracted” because she was trying to locate “a particular food item on the packed shelves of the
grocery store.” Id. Carpenter, unlike the plaintiff in Youngerman, did not state that she was
distracted while scanning packed shelves looking for a particular food item. Instead, Carpenter
testified that she and her husband had been in the store for about thirty minutes; they had
finished selecting the specific items on their shopping list; and they were walking towards the
checkout counters. Doc. 19-2, p. 42 (“I was looking at the stuff on the wall [of values], but we

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were walking to check out.”). Carpenter was looking at the Wall of Values on her left and the
baked goods on the tables to her right and did not look in front of her:
Q: And at no time did you look in front of you?
A: No, I don't believe so. I just looked at the stuff on the table and then looked at the stuff
on the wall.
Id., p. 52. Carpenter’s testimony depicts a shopper who, after having selected all items on her
shopping list, casually perused the shelves while she walked to the checkout counter without
looking in front of her and without a shopping cart to impede her view. Carpenter’s reliance
upon Youngerman is misplaced because the facts that the court in Youngerman relied upon to
find an issue of fact in that case are not facts that are present in this case.5
Based on the foregoing, the Court concludes that Plaintiffs have failed to demonstrate a
genuine issue of material fact regarding whether the spill was open and obvious. Accordingly,
K-Mart is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56; Matsushita Elec.
Indus. Co., 475 U.S. at 587 (to avoid summary judgment, the non-moving party must present
specific facts that demonstrate there is a genuine issue of material fact for trial).
VI. Conclusion
For the reasons explained above, the Court GRANTS Defendant K-Mart’s Motion for
Summary Judgment (Doc. 20).
IT IS SO ORDERED.
Dated: August 2, 2017
__________________________________
Kathleen B. Burke
United States Magistrate Judge

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Moreover, in Armstrong, the Ohio Supreme Court reiterated that courts considering the open and obvious doctrine
focus on “the nature of the dangerous condition itself, as opposed to the nature of the plaintiff’s conduct in
encountering it.” 788 N.E.2d at 1091. Thus, consideration of the plaintiff’s conduct is not relevant to the question
whether a hazard is open and obvious.

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