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Homa v. Pumpkin Patch Shoppe For Kids10/30/1997
r that its decision resulted in any prejudice. As in Ramsey,we find that plaintiff has failed to show that the trial court abused its discretion by denying the belated motion in this case.
Accordingly, plaintiff's first assignment of error is overruled.
Plaintiff's second assignment of error follows:
THE UNDERLYING DISPUTE IN THIS CASE IS FACT SPECIFIC AND INCLUDES DISPUTED ISSUES OF MATERIAL FACT WHICH PRECLUDES SUMMARY JUDGMENT.
This assignment lacks merit.
Plaintiff argues the trial court improperly granted summary judgment against her. Her brief on appeal challenges summary judgment for Pumpkin Patch, the commercial tenant, but does not make any argument concerning Harris Realty, the owner of the premises.
A. Harris Reality
Plaintiff has shown no error in the court granting summary judgment for Harris Realty. It is well established that the owner of the premises where an injury occurred is not liable for an injury on the premises when the owner is not in possession or control of the premises. Simpson v. Big Bear Stores, Co. (1995), 73 Ohio St.3d 130, syllabus. The record in this case, including the written lease submitted by Harris Realty in support of its motion for summary judgment, reveals unambiguously that Harris Realty did not possess or control the premises where plaintiff fell. Plaintiff's assertion that she needed to discover additional information concerning the role that Harris Realty had in constructing the premises prior to the lease is insufficient. On its face, the type of information requested had no tendency to establish that Harris Realty had control or possession over the premises at the time plaintiff fell.
B. Pumpkin Patch
As to Pumpkin Patch, plaintiff argues that the trial court improperly applied the doctrine of open and obvious dangers in this case. Although she admittedly had been in the store on prior occasions, the last time she was in the store and successfully traversed the step was two to three weeks prior to her injury . Plaintiff argues that in the typical case, the plaintiff is injured while leaving the premises after encountering the open and obvious condition on the same trip.
We are unpersuaded by this distinction. In fact, the case cited by plaintiff to support her argument, Shaw v. Central Asphalt Corp. (1981), 5 Ohio App.3d 42, expressly focuses on whether the plaintiff acquired knowledge of an alleged defect by prior use, rather than on the same occasion of the fall. It has long been recognized in slip and fall cases, furthermore, that forgetting about the existence of the allegedly dangerous condition is no excuse to protecting against an open and obvious danger. Orens v. Ricardo's Restaurant (Nov. 14, 1996), Cuyahoga App. No. 70403, unreported at 10, citing Jeswald v. Hutt (1968), 15 Ohio St.2d 224.
Accordingly, plaintiff's second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellees recover of appellant their costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
TIMOTHY E. McMONAGLE, JUDGE
DIANE KARPINSKI, PRESIDING JUDGE
KENNETH A. ROCCO, JUDGE
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