Hutchison v. LF, LLC et al
ORDER: (1) GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOC. NO. 13 ); AND (2) TERMINATING THIS CASE ON THE DOCKET. Signed by Judge Michael J. Newman on 10/7/2021. (bjr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
Case No. 3:19-cv-355
LF, LLC et al.,
District Judge Michael J. Newman
ORDER: (1) GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
(DOC. NO. 13); AND (2) TERMINATING THIS CASE ON THE DOCKET
This civil case is before the Court on Defendant Lowe’s Home Centers, LLC’s (“Lowe’s”)
motion for summary judgment (Doc. No. 13), Plaintiff’s memorandum in opposition, (Doc. No.
14), and Lowe’s reply (Doc. No. 15). The Court has considered the foregoing, and this motion is
now ripe for review. The following facts are undisputed.
On October 8, 2018, Plaintiff was injured at Lowe’s when several shelving boards fell on
him. Doc. No. 4 at PageID 39. At the time of the incident, he was shopping at Lowe’s in
Centerville, Ohio for three, eight-foot shelving boards that are one quarter-inch thick and twelve
inches wide. Doc. No. 12-1 at PageID 80. Lowe’s displayed these boards vertically on columns
with other similar boards stacked on top of each other in rows. Id.; Doc. No. 13 at PageID 10911, 112. Lowe’s also placed a steel retention chain that ran across the front of the row of columns,
presumably to secure the boards from falling if moved. Doc. No. 12-1 at PageID 80. This display
differed from comparable displays that Lowe’s used in other stores to secure shelving boards -the chain here was lower than chains in other displays. Doc. No. 13 at PageID 110. Evidence
concerning the location of similar chains in other displays appear in photographs that Plaintiff
identified during his deposition. Id.
Plaintiff approached the display, grabbed the bottom of the first board in the stack, and
pulled it underneath the chain. Doc. No. 12-1 at PageID 80-81. As Plaintiff turned to place the
board in his cart, several boards from the display came crashing down and struck him, causing him
to black out and suffer substantial head injuries, including, thereafter, recurring headaches. Id. at
PageID 81, 84; Doc. No. 4 at PageID 39. Plaintiff’s wife was the only one present at the time of
the incident. Id.
Plaintiff filed this suit, alleging that Defendants caused his injury due to their negligence.
Doc. 1-1 at PageID 5. Lowe’s contends that summary judgment in its favor is warranted because
(1) the danger from the display was open and obvious; and (2) Lowe’s had no notice of the danger
that the display posed. Doc. No. 13 at PageID 120.
“Summary judgment is only appropriate ‘if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.’” Keweenaw Bay Indian Cmty. v. Rising, 477 F.3d 881, 886 (6th Cir. 2007) (quoting Fed.
R. Civ. P. 56(c)). “Weighing of the evidence or making credibility determinations are prohibited
at summary judgment -- rather, all facts must be viewed in the light most favorable to the nonmoving party.” Id. Once “a motion for summary judgment is properly made and supported, an
opposing party may not rely merely on allegations or denials in its own pleading[.]” Alexander v.
CareSource, 576 F.3d 551, 558 (6th Cir. 2009). Instead, the party opposing summary judgment
has a shifting burden and “must do more than simply show that there is some metaphysical doubt
as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
The Court cannot find, as a matter of law, that the danger associated with removing the
boards was open and obvious. However, because Plaintiff has not shown that Lowe’s knew or had
reason to know that the boards were likely to fall, summary judgment is appropriate.
The Open and Obvious Doctrine
Ohio negligence law requires Plaintiff to prove that (1) Lowe’s owed him a duty of care;
(2) Lowe’s breached that duty; and (3) this breach actually and proximately caused an injury to
him. Hernandez-Butler v. Ikea U.S. East, LLC, 435 F. Supp. 3d 816, 822 (S.D. Ohio 2020) (citing
Lang v. Holly Hill Motel, Inc., 909 N.E.2d 120, 122 (Ohio 2009)).
The parties agree, at least tacitly, that the duty of care Lowe’s owed to Plaintiff hinges on
his status as a business invitee at the time of his injuries. See id. (“[A] customer in a retail
establishment … is an invitee”); see also Doc. No. 13 at PageID 114, Doc. No. 14 at PageID 135.
“Under Ohio law, ‘[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.” Hochstetler v. Menards, 688 F. App’x 381, 383 (6th Cir. 2017)
(quoting Paschal v. Rite Aid Pharm., 480 N.E.2d 474, 475 (Ohio 1985)) (alterations in original).
But this duty is limited -- a business owner does not owe a duty to safeguard someone “from
dangers that are ‘so obvious and apparent’ that the customer ‘may reasonably be expected to
discover them and protect himself against them.’” Weber v. Menard, Inc., No. 3:13-cv-229, 2014
WL 4965940, at *4 (S.D. Ohio Oct. 3, 2014) (quoting Sidle v. Humphrey, 233 N.E.2d 589, 591
Open and obvious dangers are ones “in plain view and readily discoverable upon ordinary
inspection.” Mohn v. Wal-Mart Stores, Inc., No. 6-08-12, 2008 WL 5053445, at *4 (Ohio Ct. App.
Dec. 1, 2008) (citing Parsons v. Lawson Co., 566 N.E.2d 698 (Ohio 1989)). To determine whether
a hazard is open and obvious, the test is objective, meaning that a reasonable person would observe
the condition. Hernandez-Butler, 435 F. Supp. 3d at 823 (citing Armstrong v. Lakes Golf &
Country Club, Inc., 98 N.E.3d 328, 355 (Ohio Ct. App. 2018)).
In the present case, genuine issues of material fact exist over whether the display presented
an open and obvious danger. Lowe’s displayed the boards vertically and openly so that a customer
could take them. Doc. No. 12-1 at PageID 81. Reasonable customers may assume, as Plaintiff
did, that they could remove one or more of those boards without causing the display to collapse.
Doc. No. 12-1 at PageID 82. Moreover, those boards were evenly stacked and secured by the
chain, so reasonable customers might not find an open or obvious danger that they would fall. Id.
at 80. See also Dillon-Garcia v. Marc Glassman, Inc., No. 86318, 2006 WL 302349, at *2–3
(Ohio Ct. App. Feb. 9, 2006).
In comparable cases, Ohio courts have required more than the facts alleged here to find an
open and obvious hazard. For instance, in Hupp v. Meijer Stores Limited Partnerships, a woman
removed a rug from a store shelf only to have a rug from an adjacent shelf fall on her. No.
05CE070047, 2006 WL 1085667, at *3 (Ohio Ct. App. Apr. 25, 2006). The court still found that
although the rug that fell was touching the rug that the woman took off the shelf, a reasonable
person would recognize the inherent danger in removing such items from a shelf. Id. In McGee
v. Lowe’s Home Centers, the court found that pre-cut vinyl sheet flooring placed vertically on a
shelf with a bar to hold them up posed an open and obvious hazard of falling, given the
arrangement and the nature of its placement. No. 06JE26, 2007 WL 2758668, at *1 (Ohio Ct.
App. Sept. 21, 2007).
Yet in Dillon-Garcia v. Marc Glassman, Inc, the court found that it was not obvious that
removing a can of spaghetti from a stack of cans would cause others to fall. 2006 WL 302349, at
*3. It emphasized that “the issue of whether a hazardous condition is open and obvious may
present a genuine issue of material fact for the jury to review.” Id. at *2 (citing Klauss v. Marc
Glassman, Inc., No. 84799, 2005 WL 678984, (Ohio Ct. App. Mar. 24, 2005)). Thus, summary
judgment was inappropriate because the jury was in the best position to determine whether the
danger was obvious. Id.
The gist of Lowe’s argument is that because the lumber boards were observable, upright,
and surrounded by a cable, “the lumber itself was an open and obvious condition.” Doc. No. 15
at PageID 143; see also Doc. No. 13 at PageID 117. But, as Plaintiff notes, while the boards
themselves were obvious, the danger associated with them may not necessarily have been. Doc.
No. 14 at PageID 137. Likewise, Plaintiff distinguishes the cases upon which Lowe’s relies,
arguing that those cases dealt with the danger of falling objects from overhead, rather than the risk
that removing one board in the stack would cause all of them to fall -- a distinct difference. Id.
In Hernandez-Butler v. Ikea U.S. East, LLC, this Court disposed of a similar argument,
finding that the danger associated with moving heavy furniture boxes was not so obvious as to
warrant summary judgment. Id. A box fell on top of a woman after she moved an adjacent box,
sitting on the same pallet, to her cart. Id. at 819–20. The Court distinguished between whether
the boxes were obvious or whether the danger that they might fall was. Id. at 824. Then, the Court
acknowledged that, while “many people have a generalized awareness” that objects stacked on top
of each other can tip, it was not clear that a “jury necessarily must conclude that is the case.” Id.
(emphasis in original) (denying summary judgment because court could not find that vertically
stacked boxes were an open and obvious hazard as a matter of law).
Similarly, considering that Ohio law is inconclusive on whether falling merchandise is an
open and obvious hazard, this case is like Hernandez-Butler; there is no evidence that a jury must
find that the danger posed from removing vertical wooden boards from Lowe’s display is open
and obvious. Id. Simply removing one board does not necessitate that they all should immediately
fall upon an unsuspecting customer, especially when secured with a chain. See Morrow v. WalMart Stores East, LP, No. 1:20-cv-162, 2021 WL 1140245, at *9 (S.D. Ohio Mar. 25, 2021) (citing
Tackett v. Wal-Mart Stores East, Inc., No. 1:05-cv-560, 2007 WL 2668133 (S.D. Ohio Sept. 6,
2007)). Some reasonable jurors could conclude that, like dominoes, the boards would tip if
displaced; others might not find that the boards would fall just because they are arranged vertically.
See Weber, 2014 WL 4965940, at *5 (denying summary judgment where it was a question of fact
“whether the danger of ... precariously-stacked stovepipe parts can be deemed open and obvious”).
Either way, this Court cannot decide, conclusively, and on the summary judgment record before
it, that the danger that the boards posed was an open and obvious hazard.
Even if the danger that the boards posed was not open and obvious, Lowe’s contends that
there is no evidence that it had notice of this condition. Doc. No. 13 at PageID 120. To recover
as a business invitee, a plaintiff must show:
1. That the defendant, through its officers or employees, was
responsible for the hazard complained of; or
2. That at least one of such persons had actual knowledge of the
hazard and neglected to give adequate notice of its presence or
remove it promptly; or
3. That such danger had existed for a sufficient length of time
reasonably to justify the inference that the failure to warn against it
or remove it was attributable to a want of ordinary care.
Hochstetler, 688 F. App’x at 383 (quoting Dowling v. Cleveland Clinic Found., 593 F.3d 472,
476-77 (6th Cir. 2010)). To prove that a business owner breached a duty owed to its customer,
there must be evidence that the owner had either actual or constructive notice of the hazardous
condition. Ray v. Wal-Mart Stores, Inc., 993 N.E.2d 808, 823-24 (Ohio Ct. App. 2013). For
constructive notice, “evidence of how long the hazard existed is mandatory in establishing a duty
to exercise ordinary care.” Combs v. First Nat’l Supermarkets, Inc., 663 N.E.2d 669, 670 (Ohio
Plaintiff offers no evidence indicating that Lowe’s knew or had reason to know the display
was dangerous. Plaintiff and his wife were the only two people in the aisle when the boards fell.
Doc. 12-1 at PageID 82-83. Neither saw anyone from Lowe’s manipulate the boards, set up the
display, or position the boards in an unstable position. Id. at PageID 83. Furthermore, Plaintiff
offers no video or documentary evidence supporting his claims. No reasonable jury could find
that, based on such limited evidence, Lowe’s had notice of a dangerous condition. Contra Kemper
v. Builder’s Square, Inc., 671 N.E.2d 1104, 1109 (Ohio Ct. App. 1996) (finding triable issue
existed for jury when plaintiff put forth evidence showing that store arranged vertically stacked
boards without any restraint). Without more, Plaintiff merely speculates that Lowe’s was negligent
in stacking the boards -- a tactic unfit to survive summary judgment. See Hansen v. Wal-Mart
Stores, Inc., No. 07CA2990, 2008 WL 2152000, at *6 (Ohio Ct. App. May 20, 2008).
Rather, Plaintiff argues that Lowe’s must “prove a negative” by showing it did not place
the display in a dangerous manner. Doc. No. 14 at PageID 140; Doc. No. 15 at PageID 145. But
this misunderstands the burden on summary judgment because, in response to Lowe’s motion, the
non-movant must allege “specific facts demonstrating a genuine issue for trial.” Hochstetler, 688
F. App’x at 383 (citing Matsushita, 475 U.S. at 587–88).
Plaintiffs with similar arguments in similar scenarios also failed. In Hochstetler, the Sixth
Circuit disposed of a plaintiff’s claim that Menards breached its duty of care owed to the plaintiff
when a carpet roll fell onto her. Id. Like Plaintiff’s allegations here, the plaintiff in that case gave
no evidence that a Menards employee created the hazard. Compare id. with Doc. No. 12-1 at
PageID 83. Similarly, the Ohio Court of Appeals found that a plaintiff could not recover after
picture frames at Meijer fell on him because he offered no evidence that Meijer knew about, or
permitted, the hazard. Hartman v. Meijer Stores Ltd. P’ship, No. CA2010-03-065, 2010 WL
4340644, at *3 (Ohio Ct. App. Nov. 10, 2010); see also Lacy v. Wal-Mart Stores, Inc., No.
11BE32, 2012 WL 1307075, at *7 (Ohio Ct. App. Mar. 27, 2012) (citing Hansen, 2008 WL
2152000, at *2) (granting summary judgment where plaintiff could not offer evidence of what
caused a shelf to drop a monitor on plaintiff).
In conclusion, Plaintiff has offered no probative evidence to survive summary judgment.
See Hostetler, 688 F. App’x at 383. There is no genuine issue of material fact as to Lowe’s notice
of the display’s hazard.
Therefore, the Court GRANTS Defendant’s motion for summary
judgment. This case is TERMINATED on the docket.
IT IS SO ORDERED.
October 7, 2021
s/Michael J. Newman
Hon. Michael J. Newman
United States District Judge
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