Bittner et al v. Walmart Stores East, Inc. et al
DECISION AND ENTRY - IT IS THEREFORE ORDERED THAT: 1. Defendants Motion for Summary Judgment (Doc. # 18 ) is GRANTED; 2. The Clerk of Court is directed to enter Judgment in favor of Defendants and against Plaintiff; and 3. The case is terminated on the Courts docket. Signed by Magistrate Judge Sharon L. Ovington on 6/19/2017. (srb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
CLAUDIA W. BITTNER, et al.,
WALMART STORES EAC, INC., aka
Wal-Mart Stores East, LP, et al.,
Case No. 3:16-cv-00151
Magistrate Judge Sharon L. Ovington
(By consent of the parties)
DECISION AND ENTRY
Plaintiff Claudia W. Bittner fell and fractured her right wrist while walking into a
Sam’s Club store in Washington Township, Ohio. She and her husband seek to recover
damages from Defendants Sam’s Club and its owner, Walmart Stores East, Inc., under
theories of negligence, failure to supervise, and loss of consortium. The case is presently
before the Court upon Defendants’ Motion for Summary Judgment (Doc. #18), Plaintiffs’
Memorandum in Opposition (Doc. #21), Defendants’ Reply (Doc. #22), and the record as
a whole, including (in part) a video of the incident in question and photographs of the
On a clear, dry spring morning, Plaintiff Claudia Bittner (Plaintiff) and her
grandson stopped at a Sam’s Club to get gas for her car. When she attempted to use her
Sam’s Club membership card, she discovered it had expired. To renew her membership,
she needed to enter the Sam’s Club store.
Unbeknownst to Plaintiff or her grandson before they began walking towards the
Sam’s Club, a crack existed in the surface of the crosswalk in front of the store. Plaintiff
testified during her deposition, “there was a crack in the asphalt, a pretty big crack, and
my heel caught in that crack and I went down on my right wrist and completely broke my
wrist.” (Doc. #17, PageID #104, deposition p. 22). She described the crack as “[a]t least
one inch wide and one inch deep” but did not know if it was greater than one inch deep.
Id. at depos. pp. 23-24. She did not see the crack until after she fell. Id. at depos. p. 23.
Rather than looking down as she walked, she was looking at the store. Id. at depos. p. 41.
Plaintiff’s grandson states in his sworn declaration, “As I traversed the parking lot
with Plaintiff Claudia Bittner, my attention was directed to the store and I was checking
for vehicular and pedestrian traffic…. After Plaintiff … fell, I could immediately see that
the asphalt in that area of her fall had a long, large crack in it.” (Doc. #21, PageID #15960).
Plaintiff’s broken wrist caused her “horrible” pain. Id. at depos. p. 26. An
emergency squad took her to a nearby hospital where her wrist was temporarily set. It
appears that she was not hospitalized overnight. See id. at 29-30. The next morning she
saw Dr. Alzsmkary, an orthopedic surgeon. He examined her swollen wrist and placed it
in another temporary cast. Five days after Plaintiff fell, Dr. Alzsmkary performed
surgery on her right wrist and “put a plate in ….” Id. at depos. p. 30. Her later treatment
included physical therapy.
On the day Plaintiff fell, Daniel Swain was working as the Produce Grocery
Manager at the Sam’s Club in Washington Township. He states in his sworn declaration
that he coordinated an investigation per company policy. He verifies that Defendants
have submitted a true and accurate copy of a video showing Plaintiff’s “incident.” (Doc.
#18, PageID #134). He also explains, “[A]s part of that investigation, I examined the
crack in the asphalt of the crosswalk, where Ms. Bittner claims to have tripped and
fallen…. The subject crack was approximately one inch across, several feet long, and no
deeper than one inch in depth. I am sure that no part of the crack was deeper than one
inch in depth.” Id.
A party is entitled to summary judgment when the there is no genuine dispute over
any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Barker v.
Goodrich, 649 F.3d 428, 432 (6th Cir. 2011). The burden is on the moving party “to
show that the non-moving party has failed to establish an essential element of his case
upon which he would bear the ultimate burden at trial.” Guarino v. Brookfield Tp.
Trustees, 980 F.2d 399, 403 (6th Cir. 1992); Street v. J.C. Bradford & Co., 886 F.2d
1472, 1479-80 (6th Cir. 1989).
To resolve whether a genuine issue of material fact exists, the Court draws all
reasonable inferences from the underlying facts in the light most favorable to the nonmoving party. Richland Bookmart, Inc. v. Knox County, Tenn., 555 F.3d 512, 520 (6th
Cir. 2009) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587-88 (1986)). With the reasonable inferences in the forefront, “[t]he central issue is
‘whether the evidence presents a sufficient disagreement to require submission to a jury
or whether it is so one-sided that one party must prevail as a matter of law.’” Jones v.
Potter, 488 F.3d 397, 402-03 (6th Cir. 2007) (quoting, in part, Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986) and citing Matsushita Elec., 475 U.S. at 587).
Defendants contend that they are entitled to summary judgment due to Plaintiff’s
inability to positively identify a cause of her fall “tied to the condition of the premises.”
(Doc. #18, PageID #127). In support, Defendants rely on Russell v. Creatif’ Catering,
Inc., No. 17031, 1998 WL 833811, *2 (Ohio App. Dec. 4, 1998), which indicates, “When
the cause of a fall cannot be identified, a finding of negligence is precluded.” (citing
Stamper v. Middletown Hosp. Assn. (1989), 65 Ohio App.3d 65, 67-68 (1989)).
Assuming this correctly captures Ohio law, Plaintiff’s own testimony raises a reasonable
inference that the crack in the surface of the asphalt caused her to fall. Although she did
not see the crack until after she fell, she stated that her “heel caught in that crack and I
went down ….” (Doc. #17, PageID #104, depos. p. 22). A jury crediting such testimony
could reasonably infer that the crack caused her fall. This testimony, moreover,
distinguishes the present case from Russell where the plaintiff could not say during her
deposition what caused her to fall and could not identify pictures of the location where
she allegedly fell. Russell, No. 17031, 1998 WL 833811, *2.
Defendants find Plaintiff’s account of slipping/tripping in the crack at odds with
the video of Plaintiff’s fall. Defendants point out that the video shows the crack readily
visible in the ninth crosswalk stripe in front of the Sam’s Club. Defendants further
explain that the video shows Plaintiff “began to fall much nearer to the store, in the
seventh crosswalk stripe.” (Doc. #18, PageID #127). Defendants argue that the video
establishes these undisputed physical facts, and these facts positively contradict
Plaintiff’s testimony that the crack caused her to fall. Defendants conclude that it is
appropriate for the Court to ignore Plaintiff’s testimony because it is obviously
inconsistent with the undisputed physical facts portrayed in the video.
The foundation of Defendants’ argument is flawed because the video is blurry and
does not plainly show what caused Plaintiff to fall. Defendants are correct that the video
shows Plaintiff landing at the seventh line of the crosswalk and, consequently, nearer to
the store than the ninth line in the crosswalk. But the video raises two reasonable
competing inferences about the cause of her fall. In Defendants’ favor, a jury viewing
the video could reasonably conclude that the crack did not cause Plaintiff to fall because
she landed too far forward of the crack. In Plaintiff’s favor, a jury could reasonably
conclude from the video that the crack caused her to fall on the seventh crosswalk stripe
due to her forward momentum. Given these competing reasonable inferences,
Defendants’ contentions—that the physical facts portrayed in the video are undisputed
and that Plaintiff’s deposition testimony can therefore be ignored on summary
Negligence, Duty, And The Open And Obvious Doctrine
Three elements form the bedrock of negligence in Ohio: a legal duty, a breach of
that duty by the defendant, and an injury to the plaintiff proximately caused by the
defendant’s breach. V & M Star Steel v. Centimark Corp., 678 F.3d 459, 465-66 (6th Cir.
2012) (citing Jeffers v. Olexo, 43 Ohio St.3d 140, 539 N.E.2d 614, 616 (1989)).
The parties’ present dispute concerns what legal duty, if any, Defendants owed
Plaintiff at the time she fell. Addressing this question, the parties correctly work from
premise that Plaintiff was a “business invitee.” See Lang v. Holly Hill Motel, Inc., 122
Ohio St.3d 120, 122-23 (2009). Given Plaintiff’s business-invitee status, Defendants
owed her the duty “‘to exercise ordinary care and to protect [her] by maintaining the
premises in a safe condition.’” Id. at 123 (quoting Light v. Ohio Univ., 28 Ohio St.3d 66,
68 (1986)). This duty did not require Defendants to insure Plaintiff’s safety while she
visited the Sam’s Club, id., but it did require Defendants “to warn [her] of latent or
hidden dangers.” Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 80 (2003) (citations
omitted); see Chambers v. Total Renal Care, Inc., No. 2015 WL 545166, at *2 (S.D.
Defendants argue that the duty of ordinary care generally due to business invitees
is nullified here because the crack Plaintiff identified as the cause of her fall was an
“open and obvious” hazard. Plaintiff contends that a genuine issue of fact exists
concerning whether the defect in the pavement was open and obvious.
“‘Where a danger is open and obvious, a landowner owes no duty of care to
individuals lawfully on the premises.’” Lang, 122 Ohio St.3d at 123 (quoting Armstrong,
99 Ohio St.3d 79, syllabus). “The open and obvious nature of the hazard itself serves as a
warning…,” Armstrong, 99 Ohio St.3d at 80, to business invitees. “[T]he owner or
occupier may reasonably expect that persons entering the premises will discover those
dangers and take appropriate measures to protect themselves.” Id. (citations omitted); see
Lang, 122 Ohio St.3d at 123.
“A hazard is open and obvious when [it is] in plain view and readily discoverable
upon ordinary inspection.” Mohn v. Wal-Mart Stores, Inc., 2008-Ohio-6184, ¶ 14, 2008
WL 5053445, at *4 (3rd Ohio App. 2008) (citing Parsons v. Lawson Co., 57 Ohio
App.3d 49, 51 (1989)). Whether a hazard exhibited these characteristics is determined by
examining the facts and circumstances objectively (from the standpoint of
reasonableness) rather than subjectively (from the plaintiff’s standpoint). See Alsbury v.
Dover Chem. Corp., 2009 -Ohio-3831, ¶ 61, 2009 WL 2374333, at *7 (5th Ohio App.
2009). “The fact that a particular [plaintiff] herself is not aware of the hazard is not
dispositive of the issue. It is the objective, reasonable person that must find that the
danger is not obvious or apparent.” Id.; see Armstrong, 99 Ohio St.3d at 82 (“The fact
that a plaintiff was unreasonable in choosing to encounter the danger is not what relieves
the property owner of liability. Rather, it is the fact that the condition itself is so obvious
that it absolves the property owner from taking any further action to protect the
Viewing the facts in Plaintiff’s favor, there is no genuine dispute that the crack she
encountered, viewed from a reasonable person’s vantage point, constituted an open and
obvious danger. The third photograph attached to Plaintiff’s response, along with the
photographs Plaintiff identified during her deposition, show the crack in plain sight and
reveal that it was wide enough and long enough for a reasonable person to discover it
upon ordinary inspection. (Doc. #17, PageID #s 108, depos. pp. 39-40; PageID #s 11718). Plaintiff’s deposition testimony tends to bolster this conclusion. Although she
testified that she did not see crack before she fell, she acknowledged that she was not
looking down. Id., PageID # 104, depos. p. 22. She indicated that after she fell, “we
looked at it…,” referring to herself and her grandson. Id. at p. 23; Doc. #21, PageID #
160. Plaintiff acknowledged that if she had been looking down, rather than looking at the
store, she would have seen the crack. (Doc. #17, PageID #109, depos. p. 41). Plaintiff’s
grandson similarly states in his declaration, “After Plaintiff Claudia Bittner fell, I could
immediately see that the asphalt in that area had a long, large crack in it.” (Doc. #21,
PageID#160). Viewing these facts and the photographs from an objective standpoint, the
crack that Plaintiff encountered was in plain view and readily discoverable by a
reasonable person upon ordinary inspection. The crack therefore presented an open and
obvious hazard. Defendants had no legal duty to warn Plaintiff about the open and
obvious danger the crack presented. See Armstrong, 99 Ohio St.3d at 79; see Backus v.
Giant Eagle, Inc., 115 Ohio App.3d 155, 158 (7th Ohio App. Dist. 1996) (summary
judgment warranted where photographs showed defect in blacktop was open and
Plaintiff contends that the dark color of the uneven pavement and the general
condition of the pavement as depicted in photographs attached to her response create a
genuine issue of fact as to whether or not the hazard was, in fact, open and obvious.
Contrary to Plaintiff’s contention, the dark color of the pavement depicted in these
photographs and the color difference between the crack and the surrounding asphalt did
not camouflage it or otherwise show that it was a hidden or latent defect. Additionally,
the general condition of the pavement and the length and width of the crack, particularly
as it appears in the third photograph, show that it was not a latent defect. Instead, a
reasonable person walking near the crack would have readily discovered it upon ordinary
inspection. See Doc. #21, PageID #163.
Plaintiff further argues that even if the crack was open and obvious, Defendants
still had a duty to protect her from it. She reasons, based on Edwards v. Target
Corporation, 941 F.Supp.2d 834 (W.D. Ky. 2013), “a possessor of land, such as
Defendants, can have a duty to protect its invitees from an open and obvious danger on
the premises if it is foreseeable to the possessor that the invitees will be harmed by the
danger despite its open and obvious nature.” (Doc. #21, PageID #153). This
proposition, however, is based on Kentucky law, which does not apply in the present
case. Ohio substantive law applies in the present diversity case. Erie Railroad Co. v.
Tompkins, 304 U.S 64, 78 (1938); see Lutz v. Chesapeake Appalachia, L.L.C., 717 F.3d
459, 464 (6th Cir. 2013). Plaintiff, moreover, does not cite a case that identifies, under
Ohio law, a foreseeability-of-harm exception to the open and obvious doctrine.
Plaintiff further maintains that even if the crack constituted an open and obvious
danger, Defendants owed her a duty to provide a reasonably safe means of ingress and
egress to the Sam’s Club she was visiting. There is, however, no genuine dispute over
the fact that Plaintiff could have avoided the crack by simply walking around it and
safely entering the Sam’s Club. In other words, the crack did not block the much wider
entranceway such that it prevented Plaintiff or other invitees from safely entering and
leaving the Sam’s Club. The video confirms this by showing many people safely
entering and exiting the Sam’s Club despite the presence of the crack. For these reasons,
the evidence fails to create a genuine dispute over the fact that Defendants provided
Plaintiff with a reasonably safe means of entering and leaving the Sam’s Club at the time
Plaintiff next tacks in a different direction by contending that Defendants failed to
satisfy their duty to inspect their property for hazardous conditions and repair them.
Plaintiff also posits this in her Complaint, as an alternative claim. (Doc. #3, PageID #s
60-61). Plaintiff bases this contention and, apparently, her alternative claim, on Smith v.
Wal-Mart Stores, Inc., 167 F.3d 286 (6th Cir. 1999). Yet, the duty to inspect identified in
Smith arose under Georgia law. See id. at 292 (quoting Brown v. Who’s Three, Inc., 217
Ga. App. 131, 457 S.E.2d 186, 192-93 (1995)). Plaintiff does not cite a case establishing
that under Ohio law, this duty to inspect and repair overrides the open and obvious
doctrine. Plaintiff further argues, “Defendants’ liability is based upon their superior
knowledge that the crack in the pavement would likely present an unappreciated hazard
to persons using or traversing the crosswalk toward the entrance of the store. Defendants
may be liable if the danger was one that they should have expected a visitor would not
realize.” (Doc. #21, PageID #156) (citations omitted). The problem with these
contentions is that because the crack was open and obvious, Ohio law permits Defendants
to expect invitees, like Plaintiff, to realize the danger it posed and to protect themselves
from it. See Armstrong, 99 Ohio St.3d at 80; see Lang, 122 Ohio St.3d at 123 (and cases
Accordingly, Plaintiff’s negligence claim and failure to supervise claim fail as a
matter of law due to the absence of a genuine issue of material fact regarding the open
and obvious hazard presented by the crack she encountered. Lang, 122 Ohio St.3d at 123
(“[W]hen a plaintiff is injured by an open and obvious danger, summary judgment is
generally appropriate because the duty of care necessary to establish negligence does not
exist as a matter of law.”).1 Lastly, Plaintiff’s husband’s loss of consortium claim fails
due to the absence of a triable negligence claim. See Bowen v. Kil-Kare, Inc., 63 Ohio
St.3d 84, 93 (1992) (“[A] claim for loss of consortium is derivative in that the claim is
dependent upon the defendant’s having committed a legally cognizable tort upon the
spouse who suffers bodily injury.”).
IT IS THEREFORE ORDERED THAT:
Defendants’ Motion for Summary Judgment (Doc. #18) is GRANTED;
The Clerk of Court is directed to enter Judgment in favor of Defendants and
against Plaintiff; and
The case is terminated on the Court’s docket.
June 19, 2017
s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge
In light of this conclusion, there is no need to address Defendants’ contention that they are entitled to
summary judgment based on the two-inch rule. Cf. Cramer v. McCray, 2005 -Ohio- 5507, ¶ 8, 2005 WL
2659916, at *2 (2nd Ohio App. 2005) (“the two-inch rule is separate from the open and obvious
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