IN THE SUPREIVIE COURT OF OHIO

Clova Novik,

Appellant,

-vs-

The Kroger Company,

Appellee.

11 ^ 2 ^5 5`On Appeal from the Marion

County Court of Appeals,

Third Appellate District

Court of Appeals

Case No. 9-11-21

MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT CLOVA NOVIK

William R. Thomas (0055240) (COUNSEL OF RECORD)

Nickolas D. Owen (0085269)Thomas & Company, L.P.A.163 North Sandusky Street, Suite 103

Delaware, OH 43015Telephone: (740) 363-7182

Facsimile: (740) 363-7153E-Mail: wthomasD thomaslawlpa comE-Mail: nowenCa^thomaslawlpa.com

COUNSEL FOR APPELLANT, CLOVA NOVIK

Kevin R. Bush (0029452)Nathaniel W. Jackson (0083891)

Weston Hurd LLC10 W. Broad St., Suite 2400Columbus, Ohio 43215Telephone: (614) 280-1121Facsimile: (614) 280-0204E-Mail: kbushgwestonhurd.comE-Mail: niacksonnwestoCOm

COUNSEL FOR APPELLEE, THE KROGER COMPANY

TABLE OF CONTENTSPage

EXPLANATION OF WHY THIS CASE IS A CASEOF PUBLIC OR GREAT GENERAL INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW . . . . . . . . . . . . . . . . . . . . . . . 6

Proposition of Law No. 1: The "open-and-obvious" doctrine fromArmstrong v. Best Buy Co., Inc. (2003), 99 Ohio St.3d 79, 2003-Ohio-2573,788 N.E.2d 1088 involves a two-prong analysis in order to be satisfiedas a matter of law: 1) Can the hazard be seen? ("open") AND 2) Is thehazard unmistakable? ("obvious"). If both prongs are not met, thequestion as to whether a hazard is "open-and-obvious" is a questionof fact to be decided by a jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Proposition of Law No. 2: A premises owner who has actualknowledge of a defect and/or hazardous condition and fails to correctthe defect and/or hazardous condition cannot utilize the "open-and-

obvious" doctrine from Armstrong v. Best Buy Co., Inc. (2003), 99Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088 to escape liability ........... 10

Proposition of Law No. 3: Attendant circumstances exist sufficientto create a genuine issue of material fact where a business inviteeis injured by a known ground-level hazardous condition whiledistracted by an eye-level merchandising display adjacent to theknown hazard .......................................................11

Proposition of Law No. 4: A trial court abuses its discretion andcommits reversible error where it rules on a motion for summaryjudgment without first ruling on a timely-filed motion to compel,particularly where the motion to compel seeks discovery ofan objectively important piece of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

CONCLUSION ........................................................... 15

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

APPENDIX Appx. No.

Opinion of the Marion County Court of Appeals,Third Appellate District(Nov.7,2011) ..................................................... 1

Judgment Entry of the Marion County Court of Appeals,

Third Appellate District(Nov.7,2011)..................................................... 2

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERALINTEREST

This case undoubtedly presents questions of public or great general interest because it

demonstrates that the Third District Court of Appeals' interpretation of the "open-and-obvious"

doctrine acts as a de facto bar to any and all liability for hazardous conditions, even those which

the premises owners actually know about prior to the disputed injury and actually choose to

ignore. This certainly cannot be the expected result that this Court envisioned when it decided

the Armstrong v. Best Buy Co., Inc. (2003), 99 Ohio St.3d 79, 2003 Ohio 2573, 788 N.E.2d 1088

case. As such, Ms. Novik respectfully requests the Supreme Court of Ohio to accept jurisdiction

to resolve four (4) very important questions involved in cases like the one at bar.

The first question involves the continued viability of the unforgiving bar to liability

associated with trip-and-fall cases which involve the "open-and-obvious" doctrine, as reaffirmed

by this Court's holding in the Best Buy case. Since the Best Buy holding, courts across this State

have interpreted the "open-and-obvious" doctrine to give premises owners immunity from any

and all liability by merely requiring an analysis as to whether a hazard is "open," and not even

considering whether it was "obvious." Given this, it is clear that this unforgiving interpretation

is an unintended consequence of the holding of Best Buy. This Court should accept jurisdiction

of this case to remedy this misinterpretation.

The second question is related to the first and asks this Court to intervene so that a

premises owner cannot hide behind the "open-and-obvious" doctrine to escape liability for

injuries caused by defects for which they have actual knowledge. If the interpretation of the

"open-and-obvious" doctrine only considers whether a hazardous condition can be seen when

looked at, and completely ignores whether the defect was known to the premises owner, the

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premises owner has absolutely no incentive or reason to correct the defect. It can stand behind

the "open-and-obvious" doctrine and escape the costs involved in the remedy of the hazard and

escape all liability from injuries which result from the known defect.

The third question involves to what extent "attendant circumstances" must exist in order

to create a genuine issue of material fact as to whether a particular hazard is "open-and-obvious".

In the instant case, Ms. Novik was seriously injured when she tripped over a known ground-level

hazardous condition while entering the store as her attention was purposefully directed upward to

an eye-level merchandizing display to her left. It is undisputed in this case that the outdoor

swing display was placed in its precise location in order to attract customers' attention and to

look up, notice, and potentially purchase that product. The Court of Appeals' concluded that the

purpose of all stores market merchandise is to catch a patron's eye, these stores should not be

subject to "per se" liability because of this fact, and no reasonable jury could conclude to the

contrary. This Court should accept jurisdiction of this case and determine whether and to what

extent "attendant circumstances" must exist in order for an injured business patron to have her

case heard by a jury.

The final question involves whether a trial court must rule on a motion to compel

discovery before ruling on a motion for summary judgment, where the discovery sought by the

motion to compel might very well establish genuine issues of material fact necessary to defeat

summary judgment. In the instant case, Ms. Novik simply requested the production of Kroger's

accident report which documented her slip and fall. There is no question that the requested

accident report existed at one time because Kroger's store manager testified at deposition that

she created it and that it was still in Kroger's possession when she was transferred to another

facility. Ms. Novik filed a motion to compel to force the production of this document. Rather

than rule on this motion, the Trial Court ignored the discovery issue and granted summary

judgment in favor of Kroger. On appeal, the Court of Appeals affirmed. This Court should

accept jurisdiction of this case and determine whether a trial court properly grants summary

judgment without ruling on a motion to compel when the very subject of the discovery request

could very well establish the requisite material factual dispute to overcome summary judgment.

STATEMENT OF THE CASE AND FACTS

On 9/7/2007 at approximately 5:00 p.m., Ms. Novik lawfully entered the Kroger's facility

in Marion, Ohio to purchase a card for her husband (Novik Depo., p. 16). Just before she entered

through the first set of automatic sliding doors, a seasonal marketing display of flowers just

outside those doors diverted Ms. Novik's attention away from her normal line-of-sight. (Novik

Depo., p. 18.) Upon having her attention diverted to this seasonal marketing display, Ms. Novik

began to proceed through the first set of automatic sliding doors, which were propped open.

(Novik Depo., pp. 18-19.) As she proceeded through these doors, another large marketing

display, an outdoor swing located on top of a structure, just inside the first set of doors, again

diverted Ms. Novik's attention away from her normal line-of-sight. (Novik Depo., pp. 19, 27-

28.) Immediately upon having her attention diverted for the second time, Ms. Novik tripped on a

displaced, heavy-duty rubber mat and fell to the ground. (Novik Depo., pp. 19, 27.)

Ms. Novik's fall was caused by thick rubber mats located in the vestibule/entrance area

of the store, which were "humped up" out of their normal, flat position. (Novik Depo., p. 20.) It

is important to note that these mats are made of very thick, heavy-duty rubber, housed within a

metal frame. (Novik Depo., p. 22.) Further, the thick rubber mats and their metal frame are

situated within a square space or hole that has been cut out from the rest of the normal flooring

which surrounds them. (Spencer Depo., p. 22.) As such, when lying correctly, the thick rubber

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mats will be flush with the rest of the surface of the floor. Id. Finally, the color of the rubber

mats is nearly identical to the color of the surrounding floor area, causing the two separate parts

of the floor to blend together and be virtually indistinguishable. (Spencer Depo, pp. 44-45.) As a

result of this fall, Ms. Novik suffered serious and permanent injuries which required multiple

surgeries. (Novik Depo., pp. 33-52.)

On 9/2/2009, Ms. Novik filed a complaint in the Marion County Court of Common

Pleas alleging negligence against Kroger arising out of a trip-and-fall incident on 9/7/2007. At

deposition, Kroger employees, including co-manager Mr. Scott Counts and the employee in

charge of maintenance for the store, Mr. Jeffrey D. Hawk, testified that they had personally

observed these rubber mats become displaced and/or buckled up out of their metal frames

causing issues in the past. (Counts Depo., p. 9; Hawk Depo., p. 15.). These gentlemen further

testified that when they had observed the mats in a displaced position, they would temporarily fix

them by pushing them back into their metal grate housing. (Counts Depo., p. 9; Hawk Depo., p.

15.). The store manager, Ms. Lynne Spencer, testified that she inspected the mat immediately

after the incident and noticed that the mat was, in fact, out of its normal position. (Spencer

Depo., p. 24.) Further, Ms. Spencer testified that, after Ms. Novik's fall, a standard carpeting-

type floor mat had been placed on top of the curling heavy rubber mats in order to prevent

further falls and/or issues. (Spencer Depo., pp. 24, 45.).

Ms. Spencer also testified that Kroger managers are specifically trained by the

corporation to place advertisements and displays just outside of the vestibule area and inside of

the vestibule area perpendicular to the walkway to catch the attention of customers as they enter

the store because Kroger wants "to sell product." (Spencer Depo., pp. 48-50.)

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On 11/14/2009, Ms. Novik propounded discovery upon Kroger, which included requests

for production of documents. One of those requests stated:

3. Provide any and all written reports, statements, opinion letters, or anyother document(s) which relate to the area, flooring, or condition of theflooring, where Plaintiff, Clova Novik, was injured.

In its 12/8/2009 response to this request, Kroger replied:

Answer: Objection. This interrogatory is overly broad as it asks for "anyother documents which relates to the area, flooring, or condition of theflooring" without any limitation. Further objecting, this interrogatory seeksinformation which is protected by attorney-client privilege and/or the workproduct doctrine as it asks for reports and opinion letters regarding the

condition of the flooring. Without waiving objections, no incident report

was prepared as a result of this incident. (emphasis added.)

Thus, Kroger denied that an incident report regarding Ms. Novik's fall was prepared at all.

However, in her 4/6/2010 deposition, Ms. Spencer admitted that, in her role as a store

manager of the Marion facility, she created an incident report regarding Ms. Novik's fall at or

near the time of incident in this case. (Spencer Depo., pp. 62, 67-68) Ms. Spencer admitted that

the incident report was in the files in the management offices of the Marion Kroger facility upon

her transfer in the fall of 2009. (Spencer Depo., p. 58) Ms. Spencer admitted that the incident

report was not created at the request of or direction of any attorney. (Spencer Depo., pp. 67-68)

Ms. Spencer admitted that the incident report was created in accordance with Kroger corporate

policies and in the course of normal business operations. Id. Moreover, the report was neither

authored by, nor directed to any attorneys. (Spencer Depo., p. 62.)

On 3/23/2010, Kroger filed a motion for summary judgment, despite the fact that the

parties were still in the early stages of discovery.

On 4/14/2010, Ms. Novik filed a motion to compel Kroger to produce an incident report

created by the store manager, Ms. Spencer, of Kroger's Marion facility on the date of the

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accident, as per Ms. Spencer's deposition testimony. On 4/19/2010, Kroger filed a memorandum

in opposition to Ms. Novik's motion to compel, as well as a motion for a protective order. The

parties exchanged numerous reply briefs on the motion to compel and the motion for a protective

order. Despite this hotly contested discovery issue, the trial court never ruled on any of these

motions. The report has never been produced or inspected.

On 9/13/2010, Ms. Novik timely filed her memorandum in opposition to Kroger's motion

for summary judgment.

On 5/16/2011, the trial court granted Kroger's motion for summary judgment via a one-

paie Decision and Judgment Entry, which also determined that, because it granted Kroger's

motion for summary judgment, "...all other pending Motions are deemed moot."

On 6/3/2011, Ms. Novik filed an appeal to the Marion County Court of Appeals, Third

Appellate District, arguing that the trial court erred by failing to rule on the potentially game-

changing motion to compel, that the ground-level hazardous condition was not "open-and-

obvious" as a matter of law, and that the eye-level merchandising displays immediately next to

the hazardous condition created genuine issues of material fact necessary for submission to a

jury. After briefing and oral argument, the Third District affirmed the trial court stating that,

after examining all of the facts, it concluded that no reasonable jury could conclude that the

hazardous condition was not ""open-and-obvious"," that attendant circumstances did not exist to

change this, and the discovery motion was essentially moot.

This timely appeal followed.

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law No. 1: The "open-and-obvious" doctrine from Armstrong v. Best Buy

Co., Inc. (2003), 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088 involves a two-pronganalysis in order to be satisf-ied as a matter of law: 1) Can the hazard be seen? ("open")

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AND 2) Is the hazard unmistakable? ("obvious"). If both prongs are not met, the questionas to whether a hazard is "open-and-obvious" is a question of fact to be decided by a jury.

In Armstrong v. Best Buy Co., Inc. (2003), 99 Ohio St.3d 79, 2003-Ohio-2573, 788

N.E.2d 1088, this Court resolved a conflict developing in the courts of appeals and held that the

"open-and-obvious" doctrine is the law in Ohio, that it is to be analyzed under the "duty"

element of negligence, and that, where found, a landowner owes no duty to warn its invitees of

any danger created thereby. Applying the law to the facts of that case, the Court concluded that

the hazardous condition at issue there (the bracket of a shopping-cart guardrail) was "open-and-

obvious" because, had the plaintiff been looking down, he would have seen the hazard.

Since this Court's decision in Best Buy, the courts of appeals have again found

themselves confused as to the proper application of the law handed down therein. Most courts of

appeals have taken Best Buy to mean that, no matter what the circumstance, if the hazard could

have been seen, it is "open-and-obvious" as a matter of law. See e.g. Pesci William Miller &

Assoc., LCC, 10th Dist. No. 10AP-800, 2011-Ohio-6290, at ¶ 14 ("Even in cases where the

plaintiff did not actually notice the condition until after he or she fell, this court has found no

duty where the plaintiff could have seen the condition if he or she had looked."); Carnes v.

Siferd, 3rd Dist. No. 1-10-88, 2011-Ohio-4467, at ¶ 19 ("Determination of whether a particular

hazard is "open-and-obvious" does not revolve around the plaintiff's peculiar sensibilities or

whether the plaintiff actually observed the danger. Instead, the question is whether, under an

objective standard, the danger would have been discernible to a reasonable person.")

Other courts of appeals have taken a more forgiving approach, instead analyzing the

hazard in the context of the environment surrounding the hazard in order to determine whether it

was in fact "open-and-obvious". See Skowronski v. Waterford Crossing Homeowners Ass'n, 8th

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Dist. No. 96144, 2011-Ohio-3693, at ¶ 23 ("Robert Hollosy testified that he had noticed the

defect, and photographs depicting the area show a defect, but we cannot say, as a matter of law,

that the defect is "open-and-obvious" to someone who is not looking constantly downward...");

Jacobsen v. Coon Restoration & Sealants, Inc., 5th Dist. No. 2011-CA-00001, 2011-Ohio-3563

(Finding that reasonable minds could differ as to the "open-and-obvious"ness of a metal stump

sticking out of the ground, despite the fact that, had the plaintiff been looking, she would have

seen the stump.); Middleton v. Meijer, Inc., 2nd Dist. No. 23789, 2010-Ohio-3244, at ¶ 25 ("The

fact that [the hazard] was observable on subsequent examination may be determinative of

whether the Plaintiff should have seen it, but not whether it was as a matter of law "open-and-

obvious".") (Grady, J. concurring)

Clearly, although it clarified the vitality of the "open-and-obvious" doctrine in Ohio, Best

Buy has created issues because many courts, including the Third District in this case, have

interpreted it as creating an unforgiving, insurmountable bar to trip-and-fall negligence actions.

As noted above, most courts cite to Best Buy for the proposition that, if the hazard could possibly

be seen, then it was "open-and-obvious" and there is no duty. The problem with this

interpretation is two-fold.

First, it creates a nearly insurmountable obstacle for plaintiffs in these types of cases

because it is nearly impossible to imagine a hazard that cannot be seen but that can cause

physical injury. Simply put, this unforgiving interpretation of Best Buy eliminates liability in

virtually all circumstances in which one could be injured. See e.g. Szerszen v. Summit Chase

Condominiums, 10th Dist. No. 09AP-1183, 2010-Ohio-4518, at ¶ 16 ("[I]f the fact that a hazard

is discernible by looking `hard enough' for `that specific thing' always renders the hazard "open-

and-obvious", it would be nearly impossible to recover for premises liability under any

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circumstance. There exist few substances that are completely invisible when one lmows to look

for it and is looking directly at it.")

The second, and perhaps more offensive, reason this interpretation is problematic and

inconsistent with Best Buy is that the courts of appeals no longer analyze a hazard for its

"obviousness," but only its "openness." To be sure, Best Buy discussed this very point: "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 plaintiff." Best Buy, 99

Ohio St.3d at 82 (emphasis added) (citation omitted); See generally Klauss v. Marc Glassman,

Inc., 8th Dist. No. 84799, 2005-Ohio-1306, at ¶ 18 ("[W]here reasonable minds could differ with

respect to whether a danger is "open-and-obvious", the obviousness of the risk is an issue for the

jury to determine.")

Thus, it is not just whether or not a hazard can be seen ("open"), but also whether it is so

unmistakable ("obvious") that a landowner, regardless of his or her knowledge of the hazard, is

absolved of liability because an invitee is expected to protect his or herself. The analysis is (1)

whether it is sufficiently visible to be "open" and (2) whether it is so unmistakable as to be

"obvious." Only then, should a landowner be absolved of liability.

Notwithstanding this, many courts of appeals have read out the need for the hazard to be

"obvious" in order for the landowner to be absolved of duty. This is the mistake made by the

Third District in the instant case. The following is an excerpt from the court's factual analysis of

the hazard itself:

While the mats and the vestibule flooring are very similar in their grayishcoloring, the metal trim is much brighter than the mats and the flooring.Thus, one can also readily observe a distinct difference in the mats and the

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flooring. In addition, in each photograph the mats have a distinctive,straight striping pattern while the vestibule flooring has a much lessdistinctive diagonal striping pattern that is noticeable only in thephotographs taken from inside the vestibule or close-up. These striping

patterns further distinguish the mats from the flooring. Opinion, at ¶ 23.

After drawing these close factual distinctions, the appellate court concluded as

follows:

Although the mats and flooring were similar in color, the metal trim anddistinctive striping pattern plainly distinguish the two from one another.Therefore, Novik's own testimony and the photographs, which sheidentified, establish that there is no genuine issue of material fact that thedanger posed by the mats was "open-and-obvious" had Novik looked

down...Id. at ¶ 24.

First of all and as is readily apparent from simply reading the appellate court's decision,

it, rather than the trier of fact, was analyzing the case and making factual distinctions. Clearly,

such a factual analysis should have been performed by a jury. However in this case, the

appellate court usurped the duty of the trier of fact and resolved the factual issues itself.

In addition to the issues created by a court splitting factual hairs in order to reach a

conclusion that "no reasonable jury could conclude" to the contrary, this analysis highlights the

Third District's mistaken belief that, if a hazard could have been seen had the plaintiff been

looking, it is "open-and-obvious" as a matter of law.

This Court should accept jurisdiction of this case in order to resolve the unintended

consequences of the Best Buy holding and educate the lower courts on the proper analysis of the

"open-and-obvious" doctrine, which is that, in order to absolve a landowner from liability, the

hazard must be both plainly visible ("open") and unmistakable ("obvious").

Proposition of Law No. 2: A premises owner who has actual knowledge of a defect and/orhazardous condition and fails to correct the defect and/or hazardous condition cannot

utilize the "open-and-obvious" doctrine from Armstrong v. Best Buy Co., Inc. (2003), 99

Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088 to escape liability.

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Coupled with Best Buy's clear distinction between the "duty" and "breach" elements of

negligence, a landowner has no incentive to repair known hazardous conditions, so long as they

can possibly be seen, because there is a complete bar to any liability. See Best Buy, 99 Ohio

St.3d at 81-82. Why should a premises owner correct a defect which can be seen when looking

at it? It doesn't have to remedy the hazard because if the defect can be seen, there is complete

immunity for the premise owner. Why would a store ever remedy a defect?

That is exactly what happened in this case. Kroger had actual knowledge of the

defect/hazardous condition, but chose not to correct it. When Ms. Novik was injured as a result

of the hazardous condition, Kroger simply stood behind its veil of per se immunity and relied

upon the "open-and-obvious" doctrine to escape liability. Kroger succeeded in gaining a two-

fold win - it avoided costs of fixing a known hazard and avoided any liability for the injury that

resulted from that hazard. Surely this was not the intent of this Court when deciding the Best

Buy case.

Proposition of Law No. 3: Attendant circumstances exist sufficient to create a genuine

issue of material fact where a business invitee is injured by a known ground-level

hazardous condition while distracted by an eye-level merchandising display adjacent to the

known hazard.

This Court should accept jurisdiction of this case in order to make good and proper law as

to what constitutes sufficient attendant circumstances which will defeat summary judgment. As

discussed above, the Third District in this case engaged in a hair-splitting analysis of the facts of

this case in order to arrive at the conclusion that the hazard in this case was "open-and-obvious"

as a matter of law. Thereafter, the Third District engaged in an analysis of circumstances that

diverted Ms. Novik's attention away from the ground, causing her not to see the allegedly "open-

and-obvious" hazard on the ground:

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This Court has previously stated that when people go into a store theynormally expect to find merchandise on display. [I]f the mere existence ofmerchandise were enough to negate the "open-and-obvious" doctrine, theexception would swallow the rule. It is also commonly understood by bothretailers and customers that in nearly every setting, retailers intend tomarket merchandise in a way that catches customers' eyes and entices themto buy. This intent on the part of retailers does not subject them to per seliability in every circumstance when a customer fails to notice an "open-

and-obvious" hazard and injures himself. Opinion, at ¶ 27 (internal

citations and quotations omitted).

The Third District's analysis and logic is faulty for at least two reasons. First, Ms. Novik

never argued that the mere existence of merchandise creates per se liability on the part of Kroger.

Ms. Novik argued that the location of the display in the store, the position of the display relative

to the vestibule walkway (immediately to the left, perpendicular to the walkway), and the

admitted intent of the landowner to draw invitees' attention in that direction all create a genuine

issue of material fact, where a reasonable jury could conclude that this particular merchandising

display lowered the care necessary to negotiate the ground-level hazard and rendered it not

"open-and-obvious".

Second, the Third District's concern that "the exception would swallow the rule" is

immediately followed by a conclusion that, ironically, absolves any and all premises liability for

store owners. The Third District's analysis and conclusion lead to the interpretation that

merchandise can never be an attendant circumstance, unless it is somehow an "unusual

circumstance." But what is unusual? Ms. Novik simply requested that a jury examine the

attendant circumstances surrounding her fall to determine whether, and to what extent, the

marketing display, as located and positioned, made the ground-level hazardous condition not

,',,open-and-obvious"." This hardly "swallows the rule," but rather follows the long-standing

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jurisprudential axiom that, where reasonable minds could conclude otherwise, a jury

determination is required and summary judgment should be denied.

The Third District's conclusion permits store owners to allow known hazardous

conditions to exist and go unfixed, then place merchandise to draw the attention of invitees, and

then, when the invitee is injured, argue both that it is their right to divert your attention "in order

to sell product" and that you should have seen and protected yourself from the hazard. This is

the quintessential "exception that swallows the rule."

The Second District analyzed nearly identical material facts and arrived at a completely

different conclusion. In Henry v. Dollar General Store, 2003 Ohio 206, 2003 Ohio App. LEXIS

209, the plaintiff was exiting a store when she tripped over a ground-level hazardous condition (a

large cement block) that was completely visible upon inspection. She was distracted by an eye-

level merchandizing display as she was exiting, and she did not actually see the cement block

prior to the accident. It was undisputed that she would have seen the block had she looked down.

At the time of the fall, it was 1:00 p.m., and the sun was shining outside. Moreover, the business

invitee had been to the store on other occasions.

In reversing the trial court's grant of summary judgment in favor of the premises owner,

the Second District Court held that reasonable minds could conclude that the premises owner

increased the risk of customers not seeing the ground-level hazardous condition by placing

merchandise nearby at eye level, thereby creating a distraction.Dollar General Store, at *P14.

Because reasonable minds could reach this conclusion, the Second District held that it could not

say, as a matter of law, that the ground-level hazardous condition was "open-and-obvious".Id.

This Court should accept jurisdiction of this case and determine whether, and to what

extent, merchandising displays constitute attendant circumstances sufficient to overcome

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summary judgment. Like the Second District in Henry, Ms. Novik believes that, where a

business invitee is injured by a ground-level hazardous condition while looking at an eye-level

merchandising display adjacent thereto in an area of ingress or egress of a retail store, there is a

genuine issue of material fact requiring a jury determination, and summary judgment is

improper.

Proposition of Law No. 4: A trial court abuses its discretion and commits reversible errorwhere it rules on a motion for summary judgment without first ruling on a timely-filedmotion to compel, particularly where the motion to compel seeks discovery of anobjectively important piece of evidence.

Notwithstanding the premises liability issues in this case, this Court should accept

jurisdiction of this case because a key piece of evidence was requested and never produced that

may in fact shed light on some of the issues discussed above. As previously discussed, Ms.

Novik requested production of an accident report created by Kroger immediately after the

accident. Although Kroger initially denied the existence of this report, it is now undisputed that

it was created and Kroger knows the location of the report. However, Kroger refused to produce

the document. Ms. Novik timely filed a motion to compel production of this document. Despite

numerous reply briefs, including motions for protective orders and the like, the trial court granted

summary judgment and indicated that the discovery issues were "moot." The Second District

affirmed.

This decision is in direct contravention of the decisions of numerous courts of appeals,

which have consistently held that, "when a court ignores a motion to compel discovery and

grants a motion for summary judgment, it has precluded the party seeking discovery from

seeking those facts necessary to prove his allegations. Such decisions may work to the prejudice

of the non-moving party and is a violation of due process. Mann v. Smalley, 8th Dist.

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Unreported No. 58320, 1991 Ohio App. LEXIS 1979, at *12; Biddle v. Biddle, 2nd Dist.

Unreported No. 2000 CA 67, 2000 Ohio App. LEXIS 5762, at *8; See also Rossman v. Rossman

(8th Dist. 1975), 47 Ohio App.2d 103, 109-111, 352 N.E.2d 149 (Discussing at length the

problems presented by terminating cases before completion of discovery, particularly where the

requested discovery goes to a determinative issue and where the actions of the party avoiding

discovery are suspect).

This Court has never addressed this important issue. This Court should accept

jurisdiction of this case and instruct lower courts, consistent with Smalley, Biddle, and Rossman,

that they may not grant summary judgment where a motion to compel a potentially game-

changing piece of evidence is pending because that evidence may bring to light facts that create a

"genuine issue of material fact" necessary to overcome summary judgment.

CONCLUSION

For the above reasons, this case is undoubtedly one of public and great general interest.

Ms. Novik respectfully asks this Court to accept jurisdiction of this case and resolve each of

these important issues.

Respectfully s b itted,

Nickolas D. Owen (0085269)William R. Thomas (0055240) ATTORNEY OF RECORD

THOMAS & COMPANY, L.P.A.163 North Sandusky Street, Suite 103Delaware, OH 43015Telephone: (740) 363-7182

Facsimile: (740) 363-7153E-Mail: wthomas thomaslawlpa.com

E-Mail: nowenkthomaslawlpa.co

COUNSEL FOR APPEALLANT, CLOVA NOVIK

15

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing was served by regular U. S.mail, postage prepaid, this 22nd day of December, 2011, upon:

Kevin R. BushNathaniel W. JacksonWESTON HURD, LLP10 W. Broad St., Suite 2400Columbus, Ohio 43215

Nickolas D. Owen (0085269)

16

APPENDIXAppx. No.

Opinion of the Marion County Court of Appeals,Third Appellate District(Nov.7,2011) ..................................................... 1

Judgment Entry of the Marion County Court of Appeals,

Third Appellate District(Nov.7,2011) ..................................................... 2

NOV _ 7 2011IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICTMARION COUNTY

CLOVA NOVIK,

PLAINTIFF-APPELLANT,

V.

THE KROGER COMPANY,

DEFENDANT-APPELLEE.

CASE NO. 9-11-21

OPINION

Appeal from Marion County Common Pleas CourtTrial Court No. 2009 CV 0818

Judgment Affirmed

Date of Decision: November 7, 2011

APPEARANCES:

Nickolas D. Owens and Jennifer L. zIIyers for Appellant

Kevin R. Bush and Nathaniel W. Jackson for Appellee

APPENDIXI

Case No. 9-11-21

SHAW, J.

{¶1} Plaintiff-appellant, Clova Novik ("Novik"), appeals the May 16,

2011 judgment of the Common Pleas Court of Marion County, Ohio, granting

summary judgment in favor of the defendant-appellee, The Kroger Company

("Kroger"), and dismissing her complaint.

{¶2} The facts relevant to this appeal are as follows. On September 7,

2007, as Novik was entering one of Kroger's store locations on Marion-Waldo

Road in Marion, Ohio, she fell to the floor and injured her left wrist, left ankle,

and left foot. The area of her fall was a vestibule, which was accessed from the

outside by two different sets of doors. Once inside the vestibule, one had to enter

through another set of doors in order to access the sales floor. At the threshold of

the outside entrance doors, were four, square heavy-duty rubber mats,

approximately '/<" thick, that were each set in a metal frame and abutted one

another to form one larger square. At the time of her injury, the outside entrance

doors were set in an open position rather than continuously opening and closing

upon approach.

{1[3} When Novik fell, a couple of customers came to her aid. Shortly

thereafter, the store manager, Lynne Spencer ("Spencer"), was called to the

vestibule area and waited with Novik until an ambulance arrived. While lying on

the floor, Novik attempted to ascertain how she fell and noticed the mats that she

Case No. 9-11-21

walked across upon entering the first set of doors were "humped up" on their

edges, particularly on the corners where the four mats came together. At that

point, she realized that she had tripped over one of these "humped up" edges.

{¶4} Novik was transported to a local hospital by ambulance, x-rays were

taken of her wrist and foot that revealed nothing was broken, and she was

diagnosed with a sprained wrist and ankle. However, she continued to experience

pain in her foot and was not able to walk. After seeing her family physician and a

podiatrist, she was referred to an orthopedic surgeon, who ordered an MRI of her

foot. The surgeon discovered Novik had broken a number of small bones in her

foot and torn tendons and ligaments in her ankle. She underwent surgery on her

ankle and foot, and a metal plate was placed inside her foot with screws. She later

underwent another surgery to remove two of the screws in the metal plate that

were causing pain. She then had yet another surgery to remove the metal plate and

to place a new one.

{¶5} On September 2, 2009, Novik filed a complaint against Kroger for

negligence. Kroger filed its answer, and the matter proceeded to discovery.

During discovery, Novik served Kroger with interrogatories, a request for

admissions, and a request for the production of documents. Among the items

requested by Novik were any and all written reports or other documents relating to

the area, flooring, or condition of the flooring where Novik was injured. Kroger

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Case No. 9-11-21

promptly provided its responses, including that this particular request was

overbroad and sought information that violated attorney-client privilege and/or the

work-product rule. In addition, Kroger's response specifically stated that no

incident report had been prepared as a result of Novik's fall.

{16} On March 23, 2010, Kroger filed.a motion for summary judgment in

its favor. In this motion, Kroger maintained that any hazards created by the rubber

mats were open and obvious, that any defect in the condition of these mats was

insubstantial and trivial so as to create no duty on the part of Kroger to Novik, and

that there was no evidence that Kroger had actual or constructive notice of any

such hazard.

{¶7} On April 6, 2010, Spencer, the Kroger store manager at the time of

the incident, was deposed by counsel for Novik.t In this deposition, Spencer

testified that she or one of the assistant managers prepared an incident report of

Novik's fall, which was contrary to Kroger's previous response to Novik's request

for production of documents and interrogatories.2 After this deposition, Kroger

supplemented its response to exclude its previous answer that no incident report

was prepared.

' At the time of her deposition, Spencer was the manager of another Kroger location in Mt. Vernon, Ohio,having been transferred to that location in August of 2009.2 Spencer was unable to recall whether she personally prepared the incident report or whether one of herassistant managers did, but she did testify that she last knew of the incident report being located in a filingcabinet in the Marion-Waldo Road Kroger store.

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Case No. 9-I 1-21

{¶8} On April 14, 2010, Novik filed a motion to compel Kroger to

provide the incident report that was created by Spencer. Novik also filed a motion

for an extension of time to respond to Kroger's motion for summary judgment.

Shortly thereafter, the trial court granted Novik's request for an extension.

However, Kroger filed a memorandum in opposition to Novik's motion to compel,

asserting that it did not locate any incident report of Novik's fall and that even if it

could be located, it was protected by attorney-client privilege and the work-

product rule. Kroger filed a supplement to this memorandum on April 23, 2010,

and attached the affidavit of Erin Driskell, Kroger's lead paralegal, who averred

that she exhausted all reasonable methods to locate the incident report at issue and

that she was unable to find any such incident report.

{¶9} Novik filed her memorandum in opposition to Kroger's motion for

summary judgment on September 13, 2010. Kroger filed its reply to Novik's

memorandum in opposition on September 27, 2010. On May 16, 2011, the trial

court granted sununary judgment in favor of Kroger, found all other pending

motions moot as a result, and dismissed Novik's complaint. This appeal followed,

and Novik now asserts three assignments of error for our review.

FIRST ASSIGNMENT OF ERROR

THE TRIAL COURT ABUSED ITS DISCRETION, THEREBYCOMMITTING REVERSIBLE ERROR, BY RULING ON,AND GRANTING, KROGER'S MOTION FOR SUMMARY

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Case No. 9-11-21

JUDGMENT WITHOUT RULING ON MS. NOVIK'SMOTION TO COMPEL DISCOVERY OF AN ACCIDENTREPORT AND WITHOUT RULING ON HER MOTION FORSANCTIONS.

SECOND ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED AS A MATTER OF LAW INGRANTING SUMMARY JUDGMENT BECAUSE GENUINEISSUES OF MATERIAL FACT EXIST AS TO WHETHERTHE SAME-COLORED, DISPLACED RUBBER MAT WASAN "OPEN-AND-OBVIOUS" CONDITION UNDER THECIRCUMSTANCES.

THIRD ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED AS A MATTER OF LAW INGRANTING SUMMARY JUDGMENT BECAUSE GENUINEISSUES OF MATERIAL FACT EXIST CONCERNINGWHETHER KROGER BREACHED ITS DUTY OFORDINARY CARE BY FAILING TO WARN ITS INVITEESOF THE HAZARDOUS CONDITION, OF WHICH IT HADACTUAL KNOWLEDGE.

{¶10} For ease of discussion, we elect to address these assignments of error

out of the order in which they were presented. Further, as the second and third

assignments of error are interrelated, we will address them together.

Second and Third Assignments of Error

{¶11} In the second assignment of error, Novik asserts that the trial court

erred in granting summary judgment in Kroger's favor because a genuine issue of

material fact exists as to whether the condition of the rubber mats was open and

obvious. She also contends in this assigrunent of error that even if the condition of

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Case No. 9-11-21

the mats was open and obvious, there were attendant circumstances that would

negate the application of the open and obvious doctrine. In her third assignment

of error, Novik further asserts that summary judgment was not proper because

genuine issues of material fact existed as to whether Kroger breached its duty of

care to her by failing to warn her of the hazardous condition of the mats when it

had actual knowledge of this condition.

{¶12} An appellate court reviews a grant of summary judgment de novo,

without any deference to the trial court. Conley-Slowinski v. Superior Spinning &

Stamping Co. (1998), 128 Ohio App.3d 360, 363, 714 N.E.2d 991; see, also,

Hasenfratz v. Warnement, 3`a Dist. No. 1-06-03, 2006-Ohio-2797, citing Lorain

Nat'1. Bank v. Saratoga Apts. (1989), 61 Ohio App.3d 127, 572 N.E.2d 198. A

grant of summary judgment will be affumed only when the requirements of Civ.R.

56(C) are met. This requires the moving party to establish that there are no

genuine issues of material fact, that the moving party is entitled to judgment as a

matter of law, and that reasonable minds can come to but one conclusion and that

conclusion is adverse to the non-moving party, said party being entitled to have

the evidence construed most strongly in his favor. Civ.R. 56(C); see Horton v.

Harwick Chem. Corp., 73 Ohio St.3d 679, paragraph three of the syllabus, 1995-

Ohio-286, 653 N.E.2d 1196.

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Case No. 9-11-21

{¶13} The party moving for summary judgment bears the initial burden of

identifying the basis for its motion in order to allow the opposing party a

"meaningful opportunity to respond." Mitseff v. Wheeler (1988), 38 Ohio St.3d

112, 526 N.E.2d 798, syllabus. The moving party also bears the burden of

demonstrating the absence of a genuine issue of material fact as to an essential

element of the case. Dresher v. Burt, 75 Ohio St.3d 280, 292, 1996-Ohio-107, 662

N.E.2d 264. Once the moving party demonstrates that he is entitled to summary

judgment, the burden shifts to the non-moving party to produce evidence on any

issue which that party bears the burden of production at trial. See Civ.R. 56(E).

{¶14} In ruling on a summary judgment motion, a court is not permitted to

weigh evidence or choose among reasonable inferences, rather, the court must

evaluate evidence, taking all permissible inferences and resolving questions of

credibility in favor of the non-moving party. Jacobs v. Racevskis (1995), 105

Ohio App.3d 1, 7, 663 N.E.2d 653. Additionally, Civ.R.56(C) mandates that

summary judgment shall be rendered if the pleadings, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence, and written

stipulations of fact show that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law.

{¶15} To prevail in a negligence action, a plaintiff must demonstrate that:

(1) the defendant owed a duty of care to the plaintiff, (2) the defendant breached

Case No. 9-11-21

that duty, and (3) the defendant's breach proximately caused the plaintiff to be

injured. Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, 909

N.E.2d 120, at ¶ 10, citations omitted. The applicable duty is deternvned by the

relationship between the landowner and the plaintiff when the alleged negligence

occurs in a premises-liability context. Id., citing Gladon v. Greater Cleveland

Regional Transit Auth., 75 Ohio St.3d 312, 315, 1996-Ohio-137, 662 N.E.2d 287.

Here, the parties do not dispute that Novik was a business invitee of Kroger.

{¶16} "A shopkeeper ordinarily owes its business invitees a duty of

ordinary care in maintaining the premises in a reasonably safe condition and has

the duty to wam its invitees of latent or hidden dangers." Armstrong v. Best Buy

Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, at ¶ 5, citing

Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203, 480 N.E.2d 474

and Jackson v. Kings Island (1979), 58 Ohio St.2d 357, 390 N.E.2d 810. In a

premises-liability action, the plaintiff can prove the defendant's breach of duty if

any one of three conditions is satisfied:

(1) the defendant, through its officers or employees, wasresponsible for the hazard complained of; (2) at least one of suchpersons had actual knowledge of the hazard and neglected togive adequate notice of its presence or to remove it promptly; or(3) such danger existed for a sufficient length of time reasonablyto justify the inference that the failure to warn against it orremove it was attributable to a want of ordinary care.

Case No. 9-11-21

Gouhin v. Giant Eagle, 10`h Dist. No. 07AP-548, 2008-Ohio-766, at ¶ 8, citing,

Sharp v. Anderson's, Inc., 10`h Dist. No. 06AP81, 2006-Ohio-4075, at ¶ 7, citing

Johnson v. Wagner Provision Co. (1943), 141 Ohio St. 584, 589, 49 N.E.2d 925.

Further, "[w]hen it is shown that the owner had superior knowledge of the

particular danger which caused the injury, liability attaches because, in such a

case, invitees may not reasonably be expected to protect themselves from a risk

they cannot fully appreciate." Hairston v. Gary K. Corp., 8`h Dist. No. 87199,

2006-Ohio-5566, at ¶ 10, citing Mikula v. Slavin Tailors (1970), 24 Ohio St.2d 48,

263 N.E.2d 316; LaCourse v. Fleitz (1986), 28 Ohio St.3d 209, 503 N.E.2d 159;

see, also, Cochran v. Ohio Auto Club (Oct. 3, 1996), 3° Dist. No. 9-96-33, 1996

WL 562055.

{¶17} However, a shopkeeper does not owe invitees a duty to warn of any

dangers on his property that are open and obvious. Armstrong v. Best Buy Co.,

Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 5. As such, the open

and obvious doctrine "acts as a complete bar to any negligence claims." Id. The

rationale for this doctrine is that "the open and obvious nature of the hazard itself

serves as a waming." Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 644,

1992-Ohio-42, 597 N.E.2d 504. The Supreme Court of Ohio summarized the case

law on the open-and-obvious doctrine in the following manner:

Case No. 9-11-21

"Where a danger is open and obvious, a landowner owes no dutyof care to individuals lawfully on the premises." Armstrong v.Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d1088, syllabus, approving and following Sidle v. Humphrey(1968), 13 Ohio St.2d 45, 42 0.O.2d 96, 233 N.E.2d 589. "[T]heowner or occupier may reasonably expect that persons enteringthe premises will discover those dangers and take appropriatemeasures to protect themselves." Simmers v. Bentley Constr. Co.(1992), 64 Ohio St.3d 642, 644, 597 N.E.2d 504. Thus, when aplaintiff is injured by an open and obvious danger, summaryjudgment is generally appropriate because the duty of carenecessary to establish negligence does not exist as a matter oflaw. Armstrong ¶ 14-15.

Lang, 2009-Ohio-2495, at ¶ 11.

{¶18} Nevertheless, this Court has previously held that "attendant

circumstances may exist which distract an individual from exercising the degree of

care an ordinary person would have exercised to avoid the danger, and `may create

a genuine issue of material fact as to whether a hazard is open and obvious."'

Stewart v. AMF Bowling Ctrs., Inc., 3`d Dist. No. 5-10-16, 2010-Ohio-5671, ¶ 15,

quoting Aycock v. Sandy Valley Church of God, 5`" Dist. No. AP 09 0054, 2008-

Ohio-105, ¶ 26. An attendant circumstance is

"a factor that contributes to the fall and is beyond the control ofthe injured party. * * * The phrase refers to all facts relating tothe event, such as time, place, surroundings or background andthe conditions normally existing that would unreasonablyincrease the normal risk of a harmful result of the event. * * *However, `[b]oth circumstances contributing to and thosereducing the risk of the defect must be considered."'

Case No. 9-11-21

Williams v. Lowe's of Bellefontaine, 3d Dist. No. 8-06-25, 2007-Ohio-2045, ¶ 18,

quoting Benton v. Cracker Barrel Old Country Store, Inc., 10th Dist. No.

02AP1211, 2003-Ohio-2890, ¶ 17, quoting Sack v. Skyline Chili, Inc., 12th Dist.

No. CA2002-09-101, 2003-Ohio-2226, ¶ 20. "But, attendant circumstances do

not include any circumstance existing at the moment of a fall, unless the individual

was distracted by an unusual circumstance created by the property owner."

Stewart, 2010-Ohio-5671, at ¶ 15 (citations omitted).

{¶19} Here, Novik maintains that while the existence of a duty is a

question of law for a court to decide, whether a hazard is open and obvious

requires an extremely fact-specific inquiry that may involve genuine issues of

material fact for a fact-finder to resolve. She further asserts that in this case, a

genuine issue of material fact exists as to whether the "hump" in the rubber mats

was an open and obvious hazard, which would preclude a grant of sununary

judgment. In support of this contention, Novik maintains that the mats were

nearly identical in color to the rest of the floor and that they were displaced rather

than flush with the floor in their normal resting position, both of which made this

hazard far less open and obvious than Kroger contends.

{¶20} During Novik's deposition she testified that she regularly shopped at

this Kroger location, had been there over 100 times, and had walked on the mats at

issue a number of times. She further explained that the store always has displays

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Case No. 9-11-21

of some sort on the outside of the store and also in the vestibule. Novik testified

that she went to Kroger that day in early September to buy a card for her husband.

It was a weekday at approximately 5:00 p.m., and it was sunny and warm. As she

walked towards the store, she looked at a display of fall mums on the outside of

the door and noticed that the automatic doors were in the open position rather than

continuously opening and closing as people came and went from the store. She

assumed the doors had been placed in an open position to aid the Kroger employee

she saw gathering carts outside to bring into the store.

{¶21} Novik's intent upon entering the store was to go immediately to the

card area. As she began to enter the vestibule, Novik noticed a man on the

telephone to her left and then another display, an outdoor swing that was sitting on

top of an unidentified object, just past the man who was on the phone. Novik fell

and injured herself as she traversed the mats, which were located on the inside of

the vestibule at the threshold of the entrance. When she fell, the man on the phone

and a woman who had entered the store immediately after Novik came to her aid.

The man who had been on the phone identified himself as a paramedic and told

Novik not to move. However, after some time on the floor, Novik propped herself

up to look around and noticed the mats had curled up on their corners and were

"humped up" in various areas where they came together.

Case No. 9-11-21

{¶22} Novik also identified a number of photographs showing the area of

her fall, including close-up photographs of the mats. The photographs show that

the four mats are positioned to form one large "square" mat by placing them so

they are two mats wide and two mats deep. The width of this "square" is slightly

larger than the combined width of the two automatic sliding doors to which the

mat "square" abuts. Each of the four mats is completely surrounded by what

appears to be a metal band so that the completed "square" is also outlined by this

metal trim. However, one can readily observe that this "square" consists of four

individual mats. The photographs also show that some of the edges of the mats,

including the area between two of them where Novik indicated she fell, are

"humped up" and dislodged from the metal trim pieces, and some of the comers of

these mats are somewhat curled upward.

{¶23} While the mats and the vestibule flooring are very sin-ular in their

grayish coloring, the metal trim is much brighter than the mats and the flooring.

Thus, one can also readily observe a distinct difference in the mats and the

flooring. In addition, in each photograph the mats have a distinctive, straight

striping pattern while the vestibule flooring has a much less distinctive diagonal

striping pattern that is noticeable only in the photographs taken from inside the

vestibule or close-up. These str^.ping patterns ftirther distinguish ihe mats from the

flooring.

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OW-No. 9-11-21

{¶24} Unquestionably, Novik knew the mats were in the vestibule, having

been in this store in excess of 100 times and walking on these mats. While no one

testified regarding the specific lighting conditions in the vestibule, Novik entered

the store from the outside, which was sunny, and the doors, which were glass,

were fully open. Thus, there was no evidence that she was unable to see the

condition of the mats had she looked or that there was anything present to

otherwise obstruct or distort her view of the mats. Although the mats and flooring

were similar in color, the metal trim and distinctive striping pattern plainly

distinguish the two from one another. Therefore, Novik's own testimony and the

photographs, which she identified, establish that there is no genuine issue of

material fact that the danger posed by the mats was open and obvious had Novik

looked down and that Kroger, consequently, owed her no duty.

{1125} Novik next asserts that even if the hazard was open and obvious,

there were attendant circumstances that would negate the open and obvious

doctrine. In support of this assertion, Novik argues that the display of mums

outside of the store and the swing on display inside of the vestibule were placed

there by Kroger with the intent to draw its customers' attention to these items and

entice them to buy what was on display, thereby increasing Kroger's sales figures.

Therefore, Novik claims that because she was distracted by these displays as

Kroger intended, the open and obvious doctrine does not apply.

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Case No. 9-11-21

{126} In light of the evidence previously discussed, there is no genuine

issue of material fact. No one disputes that the mums and swing displays were

present at the time of Novik's fall or that she looked at these displays as she was

entering the store. Other than Novik's fall, there was no evidence that anyone else

had ever been injured by these mats, either on the same day as Novik's fall or

prior to her fall. The displays were not in surprising areas of the store, Novik

knew that there were always displays in these areas, and the displays themselves

were not unusual or otherwise out of the ordinary. Furthermore, there is no

evidence that the displays were positioned in a manner that obstructed Novik's

view of the mats as she was entering the store.

{927} This Court has previously stated that "[w]hen 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

exception would swallow the rule." Williams, 2007-Ohio-2045, at ¶ 23. It also is

commonly understood by both retailers and customers that in nearly every setting,

retailers intend to market merchandise in a way that catches customers' eyes and

entices them to buy. This intent on the part of retailers does not subject them to

per se liability in every circumstance when a customer fails to notice an open and

obvious hazard and injures himself.

Case No. 9-11-21

{¶28} Given the facts present in this case, reasonable minds could not

conclude that the location or set-up of the displays was an unusual circumstance or

that they unreasonably increased the normal risk associated with entering a

grocery store. As such, we cannot conclude that an attendant circumstance existed

that would negate the application of the open and obvious doctrine. Thus, the

duty of care necessary to establish negligence does not exist in this case as a

matter of law.

{¶29} Having determined that Novik failed to demonstrate that Kroger

owed her a duty of care, the issue raised in the third assignment of error regarding

whether Kroger breached a duty to Novik by failing to wam her of the hazardous

condition of which it had actual knowledge is moot, i.e., if Kroger had no duty to

Novik, no breach could occur.

{¶30} For all of these reasons, we find that the trial court committed no

error in granting summary judgment in favor of Kroger. Accordingly, the second

and third assignments of error are overruled.

First Assignment of Error

{¶31} Novik asserts in her first assignment of error that the trial court erred

in granting summary judgment in favor of Kroger without first ruling on Novik's

motion to compel the discovery of the incident report and without ruling on her

motion for sanctions. Novik contends that the trial court abused its discretion by_

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Case No. 9-11-21

determining that the motions to compel and for sanctions were moot. More

specifically, she maintains that she suffered harm because the incident report

might have proven her case because it likely contained statements of actual

knowledge by Kroger of the hazard in question, likely contained a more specific

description of the displaced mats, which may give a clearer indication of how open

and obvious this hazard was, and likely would provide more insight about the

attendant circumstances.

{132} The parties agree that during discovery Kroger informed Novik that

an incident report of her fall was not prepared and that Spencer later testified in

her deposition that either she or one of the assistant managers prepared an incident

report. Kroger, through the affidavit of Erin Driskell, maintains that it exhausted

all reasonable methods to locate the incident report at issue and that it was unable

to find any such incident report. Kroger also argues that even if it could locate the

incident report that it was not discoverable because of the attorney-client privilege

and the work-product rule, as this report was prepared because many slip and fall

incidents lead to litigation. However, Novik maintains that the testimony of

Spencer demonstrated that the incident report was prepared as a part of Kroger's

normal business operations, in accordance with Kroger's policy, and not at the

request and/or direction of any attorney. Thus, she contends that it is not work-

product and not subject to any privilege.

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Case No. 9-11-21

{¶33} Trial courts have broad discretion over the conduct of discovery, and

a trial court's order concerning the conduct of discovery will not be reversed

absent an abuse of discretion. Toney v. Berkemer (1983), 6 Ohio St.3d 455, 453

N.E.2d 700. In addition, the abuse of discretion must materially prejudice the

opposing party. Bland v. Graves (1993), 85 Ohio App.3d 644, 659, 620 N.E.2d

920. "In exercising its discretion in a discovery matter, the court balances the

relevancy of the discovery request, the requesting party's need for the discovery,

and the hardship upon the party from whom the discovery was requested."

Stegawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App.3d 78, 85,

523 N.E.2d 902. "However, where a trial court's refusal to allow discovery is

improvident and prejudicially affects the substantial rights of the parties, an

appellate court will rectify the trial court's abuse of discretion." Smith v. Klein

(1985), 23 Ohio App.3d 146, 151, 492 N.E.2d 852, citing State ex rel. Daggett v.

Gessaman (1973), 34 Ohio St.2d 55, 58, 295 N.E.2d 65.

{¶34} Obviously, we do not condone any party destroying, intentionally or

otherwise, discoverable materials or refusing to provide discoverable materials in

its possession, and while this Court may find Kroger's position to be suspect on

this issue, the above authority clearly places the matter within the prerogative of

the trial court to determine. However, given the undisputed evidence, particularly

the photographs of the area, Novik has not shown how this report would have

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Case No. 9-11-21

created genuine issues of material fact that the condition of the mats was not open

and obvious or that there were attendant circumstances.

{135} Thus, even assuming arguendo that Novik was entitled to the

incident report as part of discovery and that the trial court abused its discretion in

not compelling Kroger to provide it or to determine whether Kroger engaged in

the spoliation of evidence and to impose an appropriate sanction, this report is not

outcome determinative. While Novik speculates on what this report may contain,

her testimony and, more importantly, the photographs, which speak for themselves

better than any person could, demonstrate that the condition of the mats was open

and obvious. Moreover, Novik's undisputed testimony describing the displays

evidences that there were no attendant circumstances that would negate the

application of the open and obvious doctrine in this case. Accordingly, the first

assignment of error is overruled.

{¶36} For all of these reasons, the judgment of the Common Pleas Court of

Marion County, Ohio, is affirmed.

Judgment Affirmed

ROGERS, P.J., and PRESTON, J., concur.

/jlr

IN THE COURT OF APPEALS OF OHIOTHIRD APPELLATE DISTRICT

MARION COUNTY

NOV - 7 2011

CLOVA NOVIK,

PLAINTIFF-APPELLANT, CASE NO. 9-11-21

V.

THE KROGER COMPANY, J U D G M E N TENTRY

DEFENDANT-APPELLEE.

For the reasons stated in the opinion of this Court, the assignments of error

are overruled and it is the judgment and order of this Court that the judgment of

the trial court is affirmed with costs assessed to Appellant for which judgment is

hereby rendered. The cause is hereby remanded to the trial court for execution of

the judgment for costs.

It is further ordered that the Clerk of this Court certify a copy of this

Court's judgment entry and opinion to the trial court as the mandate prescribed by

App.R. 27; and serve a copy of this Court's judgment entry and opinion on each

party to the proceedings and note the date of service in the docket. See App.R. 30.

DATED: November 7, 2011

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