Fell at a Restaurant or Banquet Hall? How 'Attendant Circumstances' Defeat the Open-and-Obvious Defense (Matt v. Ravioli)

Published May 20, 2014 · Ohio Appeals Courts

Wedding season is here, and with it the calls we get every June: a guest, often a grandparent, left a reception at the end of the night, stepped off an edge nobody warned her about, and broke a hip. The banquet hall's insurer responds the same way every time. The step was there all evening. Other people used it. It was open and obvious. Claim denied.

On April 24, 2014, the Eighth District Court of Appeals in Cleveland explained why that answer is often wrong. Matt v. Ravioli, Inc., 2014-Ohio-1733, holds that the lighting, the crowd, the noise, and the path a guest actually walked can all be "attendant circumstances" that turn a supposedly obvious step into a question for a jury.

A step between the tables and the dance floor

On June 30, 2012, Mildred Matt attended a wedding reception in the banquet room of a Cleveland-area restaurant she had never visited. She went straight to her assigned table, which sat on a raised dining platform, but the route she took there involved no steps, so she had no reason to know she was on a platform at all. She stayed at her table all evening except for one trip to the restroom, which also involved no steps.

When it was time to leave, she walked from her table toward the exit on the far side of the dance floor, a different path from the one she had used to arrive. The lights were low, the DJ was playing loudly, and people were dancing. She looked ahead as she walked. She saw no railing, no warning sign, and no lighted edge. Believing the floor was level, she stepped forward into the gap between the dining platform and the dance floor, fell, and fractured her hip.

The restaurant moved for summary judgment with photographs showing the raised platform, "watch your step" signs on columns in the room, and a railing in the center of the step. The trial court agreed that the step was open and obvious and dismissed the case.

What "attendant circumstances" means

The open-and-obvious doctrine says a property owner has no duty to warn of a hazard so apparent that a visitor would be expected to see it and protect herself. The test is objective: not whether this particular person saw the hazard, but whether a reasonable person in her position would have.

The important words are "in her position." Ohio courts recognize that the circumstances surrounding a fall can change what a reasonable person would notice. The Eighth District listed the kinds of facts that count: the condition of the area as a whole, the amount of foot traffic, how visible the defect was, and whether the setting was one where a person's attention would naturally be drawn elsewhere. Any distraction that would divert an ordinary person's attention in the same situation, and so reduce the care she would exercise, is an attendant circumstance. When attendant circumstances exist, whether the hazard was truly open and obvious becomes a fact question for the jury rather than a legal question for the judge.

Why the appeals court reversed

The court found four attendant circumstances in Ms. Matt's testimony, and each is one we see in Dayton-area restaurant and banquet-hall cases.

She had never used that path. She arrived by a route with no steps, so nothing in her evening told her the floor changed levels. A hazard is less obvious to someone who has had no chance to learn it is there.

The lights were dimmed. Reception halls lower the lights for dancing. A step that is plain under full lighting can vanish in the dark, and darkness in that setting was not something the guest chose; it was a condition the business created.

The music was loud and people were dancing. A crowded, noisy dance floor is exactly the kind of environment that draws a person's attention away from the floor in front of her.

No cue marked the edge. Ms. Matt testified she saw no lights, railing, or sign on her path. The restaurant's photographs of signs on columns and a railing in the middle of the step did not establish that any of those were on the route she walked, and on summary judgment the court had to view the evidence in her favor.

The restaurant argued that she would have been fine had she looked down. The court acknowledged that, then quoted the principle Ohio courts have repeated for decades: "the law does not impose an obligation on an individual to constantly look down while walking." The summary judgment was reversed and the case sent back for trial.

The pattern with Mulcahy

This decision arrived seven weeks after the Fifth District's ruling in Mulcahy v. Best Buy, which we discussed in our post on tripping over a store display. Together they show Ohio's appellate courts insisting that trial judges look at the real hazard in its real setting rather than at a photograph taken in daylight with the room empty. A one-inch shelf in a checkout aisle and a step at the edge of a dark dance floor are both easy to see once you know where to look. The question is whether the business should have expected its customers to know.

A note on Dayton courts

Matt comes from the Eighth District, which covers Cuyahoga County, and it does not bind the Second District, which hears appeals from Montgomery and surrounding counties. Our local appellate court has been stricter in applying the open-and-obvious doctrine, and a restaurant fall in Dayton must be prepared with that in mind. The doctrine does not apply at all, however, when a statute imposes a specific safety duty, as the Supreme Court held this February for apartment common areas in the Mann v. Northgate decision. For businesses like restaurants, where the common-law rule still governs, the attendant-circumstances argument is the main path around it, and it lives or dies on evidence.

How to document a restaurant or banquet-hall fall

The facts that saved Ms. Matt's case were facts about the room on that night. They are the facts that disappear by the next morning, when the lights are up and the tables are rearranged. If you or a family member falls at a restaurant, reception hall, bar, or club:

• Photograph the step, ramp, or edge that night, from the direction you were walking, with the lighting as it was. Have someone else take the pictures if you are hurt.
• Note the music, the crowd, and whether the room was set up for dancing.
• Record the path you took to your table and the path you took when you fell.
• Get names and numbers of people at your table who saw the fall or who can describe the lighting.
• Ask the venue to preserve any video and complete an incident report, and get a copy.
• Write down, that night, whether you saw any sign, railing, or lighted edge.

Our earlier post on getting around the open-and-obvious defense through investigation explains how we use that material.

What this means for you

A broken hip at seventy is a life-changing injury, and venues and their insurers know it. They will tell you the step was obvious and that you should have watched where you were going. Ohio law says the question is whether a reasonable guest, in the dark, in the crowd, on a path she had never walked, would have seen it, and that question belongs to a jury. Our premises liability practice handles restaurant and banquet-hall falls across the Miami Valley.