Headley et al v. Home Depot U.S.A., Inc et al
Memorandum Opinion and Order: Defendants' motion for summary judgment is granted. This case is dismissed. (Related Doc # 17 ). Judge Sara Lioi on 7/8/2014. (P,J)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
JOELLEN HEADLEY, et al.,
HOME DEPOT U.S.A., INC., et al.,
CASE NO. 5:13-cv-1839
JUDGE SARA LIOI
MEMORANDUM OPINION AND
This matter is before the Court on the motion for summary judgment filed by
defendants Home Depot U.S.A., Inc. and Home Depot Store Support LLC (collectively,
“defendants” or “Home Depot”). (Doc. No. 17.) Plaintiffs have filed an opposition (Doc. No.
29), and defendants have filed supplemental exhibits (Doc. No. 24), as well as a reply (Doc. No.
33). The matter is fully briefed and is ripe for adjudication.
I. Factual and Procedural Background
On July 31, 2011, between 12:00 and 1:00 PM, plaintiff Joellen Headley
(“Headley”) and her husband, plaintiff Ronnie Headley, visited defendants’ store located in
Massillon, Ohio, on Lincoln Way East. (Doc. No. 17 at 104.) Headley estimated that she had
visited this location one to two times per year since its construction over a decade ago. (Headley
Dep., Doc. No. 18 at 177.)
On the date in question—a hot and sunny summer Sunday—Headley wore
sandals with a 1.5” to 2” heel. (Id. at 208-09.) Headley accessed the store through the open-air
Garden Center entrance, one of two available customer entrances. (Id. at 177-78.) After crossing
a paved area between the Garden Center and the parking lot, Headley entered the Garden Center
without incident. (Id. at 193.) Headley did not look at the ground as she entered the Garden
Center, testifying that though “[t]here could have been a hose[,]” she could not recall seeing one
as she entered. (Id. at 192.)
Once inside the Garden Center, Headley and her husband took five to ten minutes
to strategize their shopping excursion. (Id. at 195.) As agreed upon, Ronnie Headley walked
toward the main store to purchase merchandise inside while Headley returned outside to browse
the flowers located in the paved area between the parking lot and Garden Center. (Id.) Headley
saw two Home Depot employees inside the Garden Center, neither of whom mentioned or
warned of a hose on the ground. (Id. at 194.) Headley does not recall seeing any Home Depot
employees lay down a hose during her conversation with her husband. (Id. at 234.)
After speaking with her husband, Headley turned back towards the open-air
entrance. Before reaching the threshold of the Garden Center, she stepped on a hose, felt her
ankle pop, and fell forward. (Id. at 196.) Headley testified that the hose “rolled with [her]
ankle” when she stepped on it, causing her to fall forward. (Id. at 211.) As Headley fell, she
looked down and saw the hose:
Q: So is it your testimony that as you are standing erect, the split second you
begin to fall, you look down and, at that point, you see the hose on the ground?
Q: Okay. Do you see the hose moving in that split second?
A: No, I did not, actually, see it moving. I just felt it under my foot.
(Id. at 217.) She landed “between the inside of the store and the outside of the store.” (Id. at 196.)
Directly before her fall, Headley “was looking around at the store, what was
around [her,]” and did not see the hose before stepping on it. (Id. at 205.) She admitted that she
“should have been looking where [she] was going.” (Id. at 226.) She cannot recall whether she
glanced at the floor, but distinctly denied seeing the hose before she fell:
Q: -- did you at least glance down to the floor to see what was on the floor?
A: I don’t recall. I may have. I don’t know.
Q: Okay. Did you ever see the hose before you fell?
A: No, sir.
(Id. at 205.) Headley admitted that she had no visibility problems inside the Garden Center. (Id.
at 204.) Both near- and farsighted, Headley wears glasses to drive, but does not recall whether
she wore glasses on the date in question. (Id. at 182.)
Headley suffered a fractured right ankle in the fall, which is presently “doing
well[,]” though it causes Headley discomfort in cold temperatures or when she stays on her feet
too long. (Id. at 236.) She also fractured her left shoulder in three places, necessitating surgery in
August 2011. (Id. at 237-38.) Due to persistent pain in her left shoulder, Headley has used
prescription strength ibuprofen since her fall. (Id. at 238.) While her orthopedic surgeon
recommends an additional shoulder surgery to ameliorate lingering pain and improve mobility,
Headley has thus far declined the surgery, citing her work schedule. (Id. at 239-40.) At present,
in addition to her pain level—five out of ten—she cannot raise her left arm over her head, sleep
on her left side, swim, or lift heavy objects. (Id. at 242-43.)
On July 25, 2013, plaintiffs filed negligence and loss of consortium claims against
defendants in the Stark County Common Pleas Court (Doc. No. 1-1), and defendants timely
removed to this Court. (Doc. No. 1.) Defendants now move for summary judgment, claiming that
plaintiffs have failed (1) to present any evidence that Home Depot knew or should have known
that the hose posed a danger or (2) to show that the hose was not an open and obvious condition.
(Doc. No. 17.) Plaintiffs oppose. (Doc. No. 29.) To show that Home Depot had notice, they
supplied the affidavit of Ronnie Headley, in which he states that a Home Depot employee
informed him “that she had advised her supervisor prior to the incident that it was just a matter of
time until someone was going to fall over the hose stretched across the aisle way floor.” (Doc.
No. 29-1.) To refute the allegation that the hose was an open and obvious danger, plaintiffs argue
that “[t]he presence of a hose to lie on the floor stretching across an aisle way while customers
were shopping during a busy period is not so ordinary or common that it cannot be considered
unreasonably dangerous.” (Doc. No. 29 at 317.) In their reply brief, defendants argue that
plaintiffs failed to show that the hose was not an open and obvious danger and that the affidavit
of Ronnie Headley cannot be considered, as it is inadmissible hearsay. (Doc. No. 33.)
II. Summary Judgment Standard
Under Fed. R. Civ. P. 56(a), when a motion for summary judgment is properly
made and supported, it shall be granted “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.”
An opposing party may not rely merely on allegations or denials in its own
pleading; rather, by affidavits or by materials in the record, the opposing party must set out
specific facts showing a genuine issue for trial. Fed. R. Civ. P. 56(c)(1). Affidavits or
declarations filed in support of or in opposition to a motion for summary judgment “must be
made on personal knowledge, set out facts that would be admissible in evidence, and show that
the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). A
movant is not required to file affidavits or other similar materials negating a claim on which its
opponent bears the burden of proof, so long as the movant relies upon the absence of the
essential element in the pleadings, depositions, answers to interrogatories, and admissions on
file. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
In reviewing summary judgment motions, this Court must view the evidence in a
light most favorable to the non-moving party to determine whether a genuine issue of material
fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142
(1970); White v. Turfway Park Racing Ass’n., 909 F.2d 941, 943-44 (6th Cir. 1990), impliedly
overruled on other grounds by Salve Regina Coll. v. Russell, 499 U.S. 225, 111 S. Ct. 1217, 113
L. Ed. 2d 190 (1991). A fact is “material” only if its resolution will affect the outcome of the
lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202
(1986). Determination of whether a factual issue is “genuine” requires consideration of the
applicable evidentiary standards. Thus, in most civil cases the Court must decide “whether
reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is
entitled to a verdict[.]” Id. at 252.
Summary judgment is appropriate whenever the non-moving party fails to make a
showing sufficient to establish the existence of an element essential to that party’s case and on
which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. Moreover, “[t]he
trial court no longer has the duty to search the entire record to establish that it is bereft of a
genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.
1989) (citing Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988)). The nonmoving party is under an affirmative duty to point out specific facts in the record as it has been
established that create a genuine issue of material fact. Fulson v. City of Columbus, 801 F. Supp.
1, 4 (S.D. Ohio 1992). The non-movant must show more than a scintilla of evidence to overcome
summary judgment; it is not enough for the non-moving party to show that there is some
metaphysical doubt as to material facts. Id.
III. Law and Analysis
Under Ohio law, “in order to establish actionable negligence, one seeking
recovery must show the existence of a duty, the breach of the duty, and injury resulting
proximately therefrom.” Strother v. Hutchinson, 67 Ohio St. 2d 282, 285, 423 N.E.2d 467 (1981)
(citing Feldman v. Howard, 10 Ohio St. 2d 189, 193, 226 N.E.2d 564 (1967)). The duty owed by
a landowner to an entrant depends upon the entrant’s status. Gladon v. Greater Cleveland Reg’l
Transit Auth., 75 Ohio St. 3d 312, 315, 662 N.E.2d 287 (1996). Landowners owe invitees—those
who have entered the property by invitation, express or implied, for a purpose beneficial to the
owner—the duty to exercise ordinary care by “maintaining the premises in a safe condition.”
Provencher v. Ohio Dep’t of Transp., 49 Ohio St. 3d 265, 266, 551 N.E.2d 1257 (1990). The
duty of ordinary care also includes warning the invitee of unreasonably dangerous latent
conditions. McGuire v. Sears, Roebuck & Co., 118 Ohio App. 3d 494, 497, 693 N.E.2d 807
(Ohio Ct. App. 1996) (citing Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St. 3d 203, 203, 480
N.E.2d 474 (1985)). The parties do not dispute that Headley was an invitee, and, absent
circumstances described below, was owed the duty of reasonable care by defendants.
An open and obvious danger obviates the landowner’s duty to an invitee and
completely bars recovery. If discoverable by someone “acting with ordinary care under the
circumstances[,]” an open and obvious danger does not trigger the landowner’s duty to warn.
Hissong v. Miller, 186 Ohio App. 3d 345, 351, 927 N.E.2d 1161 (Ohio Ct. App. 2010) (citation
omitted). Rather, these dangers “serve as their own warning[.]” Kintner v. ALDI, Inc., 494 F.
Supp. 2d 811, 815 (S.D. Ohio 2007) (citing Armstrong v. Best Buy Co., Inc., 99 Ohio St. 3d 79,
80, 788 N.E.2d 1088 (2003)). Businesses may assume that “‘persons entering the premises will
discover those dangers and take appropriate measures to protect themselves.’” McGuire, 118
Ohio App. 3d at 497 (quoting Simmers v. Bentley Constr. Co., 64 Ohio St. 3d 642, 644, 597
N.E.2d 504 (1992)).
In finding a danger open and obvious—an objective inquiry—a court determines
whether “the condition is observable.” Kirksey v. Summit Cnty. Parking Deck, No. Civ. A.
22755, 2005 WL 3481536, at *3 (Ohio Ct. App. Dec. 21, 2005). Under this objective standard,
the invitee need not have actually observed the dangerous condition, provided that the condition
was observable. Hissong, 186 Ohio App. 3d at 352. Accordingly, the Court must look to “the
nature of the dangerous condition itself, as opposed to the nature of the plaintiff’s conduct in
encountering it.” Armstrong, 99 Ohio St. 3d at 82. Observability, the central issue, “depends
upon the particular circumstances surrounding the hazard . . . and is extremely fact-specific,”
constituting a jury question when the facts are disputed or open to multiple interpretations.
Andler v. Clear Channel Broad., Inc., 670 F.3d 717, 725 (6th Cir. 2012) (citations and quotation
marks omitted). If “only one conclusion can be drawn from the established facts,” however, “the
issue of whether a risk was open and obvious may be decided by the court as a matter of law.”
Klauss v. Glassman, No. 84799, 2005 WL 678984, at *3 (Ohio Ct. App. Mar. 24, 2005)
For example, an ankle high pallet extending four to six inches into a busy grocery
store aisle might not be readily observable, Kintner, 494 F. Supp. 2d at 816, while a pile of boxes
in the middle of a similar grocery store aisle would be. Parsons v. Lawson Co., 57 Ohio App. 3d
49, 51, 566 N.E.2d 698 (Ohio Ct. App. 1989). An immediate step down in a bathroom obstructed
by an inwardly opening door might not be readily observable, Hissong, 186 Ohio App. 3d at 354,
while an unobstructed 2.5" threshold step at a store entrance is readily observable. Freeman v.
Value City Dep’t Store, No. 2010 CA 00034, 2010 WL 3766806, at *4 (Ohio Ct. App. Sept. 27,
2010). When the grass is of uniform height all around, campground patrons might not necessarily
observe a hole in the ground, Andler, 670 F.3d at 721; however, bar patrons could readily
observe a knee-high fire pit five feet in diameter at an outdoor bar. Vanderbilt v. Pier 27, LLC, 2
N.E.3d 966, 972 (Ohio Ct. App. 2013). Weight limits on sample lawn chairs might not be an
observable danger, McElhaney v. Marc Glassman, Inc., 174 Ohio App. 3d 387, 397, 882 N.E.2d
455 (Ohio Ct. App. 2007), likewise, trampoline hazards arising only when multiple people
simultaneously use a trampoline. Lykins v. Fun Spot Trampolines, 172 Ohio App. 3d 226, 23536, 874 N.E.2d 811 (Ohio Ct. App. 2007). Generally, however, imperfections and obstructions in
the middle of a floor or aisle, the most mundane of dangers, are readily observable. See, e.g.,
Parsons, 57 Ohio App. 3d at 51 (pile of small boxes); McGuire, 118 Ohio App. 3d at 498 (raised
ceramic tile); Davis v. Kmart Corp., No. 4:10CV2127, 2011 WL 4730523, at *3-4 (N.D. Ohio
Oct. 7, 2011) (milk drips).
Here, Headley stepped on a garden hose stretched across the Garden Center floor.
Though Headley did not see the hose before she fell, she repeatedly admitted that she did not
look at the floor, but looked at the merchandise on offer instead. (See, e.g., Headley Dep. at 205,
206, 226.) She even testified that she saw the hose once she looked down, albeit in the midst of
falling. (Id. at 216-17.) The record clearly shows that nothing obstructed or obscured Headley’s
view of the ground:
Q: With regard to the inside portion of the building – I want to be clear – did you
have any problems with visibility as you entered the building going from the
boundary line inward?
Q: Did you have any problems with visibility?
A: No, I did not.
(Id. at 204.) Nor did anything about the hose’s placement render it not readily observable. Unlike
the protruding pallet in Kintner, this hose stretched openly across the floor.1 Like milk drips or
small boxes in a grocery store, nothing about a garden hose in a Garden Center is unexpected,
unpredictable, or unobservable, as Headley herself admitted. (See id. at 222.)
In their opposition to the motion, plaintiffs state that a garden hose stretched
across a floor cannot, as a matter of law, be an open and obvious danger to shoppers looking at
merchandise during busy shopping hours. (Doc. No. 29 at 317.) This statement does not refute
Headley’s uncontroverted testimony that her view of the floor was unobstructed, and once she
actually looked down, she saw the hose. Open and obvious conditions are fact-specific, and the
uncontested facts here prompt only one conclusion: the hose was readily observable. Because an
invitee acting with reasonable care would have observed the hose and taken steps to protect
against it, Home Depot, as a matter of law, owed Headley no duty to warn about the hose. Thus,
plaintiffs cannot meet the first essential element of their case for actionable negligence—the
existence of a duty—and defendants are entitled to judgment as a matter of law.
If plaintiffs had shown that Home Depot owed Headley a duty, they also would
have been obliged to show that Home Depot breached its duty. In their briefing, the parties
presented arguments relative to Home Depot’s purported breach. Plaintiffs provided an affidavit
claiming that Home Depot knew the hose constituted a dangerous condition and therefore
breached its duty to Headley by allowing the hose to remain on the ground. (Doc. No. 29-1.)
Defendants argued that the affidavit is inadmissible hearsay. (Doc. Nos. 17, 33.) The Court need
not address the parties’ contentions because, as previously discussed, the hazard was open and
Exhibit A to Headley’s deposition is a photograph of the Garden Center entrance. (Doc. No. 17-2 at 154.) The
photograph depicts a light-colored concrete floor. The photograph also shows a contrasting colored red hose hanging
on the wall.
obvious, meaning Home Depot owed Headley no duty.
Because plaintiffs have not sufficiently established Home Depot’s duty,
defendants are entitled to summary judgment on plaintiffs’ negligence claim and loss of
consortium claim, the latter of which is derivative of the negligence claim. See Bowen v. KilKare, Inc., 63 Ohio St. 3d 84, 92-93, 585 N.E.2d 384 (1992) (“[W]e recognize that a claim for
loss of consortium is derivative in that the claim is dependent upon defendant’s having
committed a legally cognizable tort upon the spouse who suffers bodily injury.”).
For the reasons set forth above, defendants’ motion for summary judgment is
GRANTED. This case is dismissed.
IT IS SO ORDERED.
Dated: July 8, 2014
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
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