Opinion
NO. 74625
January 14, 1999
CHARACTER OF PROCEEDING:
Civil appeal from Common Pleas Court Case No. CV-337054.
JUDGMENT: AFFIRMED.
For Plaintiff-Appellant: OSCAR TRIVERS, Hardiman, Buchanan, Howland Trivers.
For Defendants-Appellees: C. RICHARD McDONALD, JOHN MARTIN MURPHY, Davis Young, LINDA R. MITTLEMAN.
This case came on for hearing upon the accelerated calendar of our court pursuant to App.R. 11.1 and Loc.R. 25, the record from the common pleas court, and the briefs of counsel.
Margaret Lanier appeals from a decision of the common pleas court granting summary judgment in favor of University Suburban Health Center in connection with injuries she sustained when she tripped and fell in a parking lot while helping her friend, Francis Ravis to walk to the office. She urges the court erred because she established genuine issues of material fact exist as to whether the defect in the lot constituted an open and obvious defect. After careful consideration of the facts in this case and the applicable law, we conclude that the imperfection in the parking lot where Lanier tripped and fell is a minor or trivial defect and, therefore, affirm the judgment of the trial court.
The record before us reveals that shortly before 4 p.m. on the afternoon of July 6, 1995, Lanier accompanied her friend, Francis Ravitz, and Michelle Tate, Ravitz's daughter, to the University Suburban Health Center, located at 1611 South Green Road in Cleveland, for Ravitz's appointment at the center. After parking in the lot, Lanier got out of the car, and walked toward the building, assisting Ravitz because of her failing health. While traversing the lot, Lanier tripped, fell forward, and injured both legs.
On July 7, 1997, Lanier filed a complaint against University Suburban Health Center and University Hospitals of Cleveland, alleging negligence arising out of the defect in the parking lot pavement. Lanier dismissed University Hospitals from the case, and University Suburban filed a motion for summary judgment, which the court granted. Lanier now appeals from that judgment and presents the following assignment of error for our review:
THE LOWER COURT ERRED IN GRANTING APPELLEES' MOTION FOR SUMMARY JUDGMENT.
Lanier contends the court erred in granting summary judgment because genuine issues of material fact exist as to University Suburban's negligence. University Suburban argues the court correctly granted summary judgment.
In this regard, we recognize that Civ.R. 56 provides in part:
* * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, 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.
Regarding premises liability, the court stated in its syllabus in Helms v. American Legion, Inc. (1966), 5 Ohio St.2d 60 :
The owners or occupiers of private premises are not insurers of the safety of pedestrians traversing those premises, and minor or trivial imperfections therein, which are not unreasonably dangerous and which are commonly encountered and to be expected, as a matter of law do not create liability on the part of such owners or occupiers toward a pedestrian who, on account of such minor imperfection, falls and is injured. (Citations omitted.)
Further, in Backus v. Giant Eagle, Inc. (1996), 115 Ohio App.3d 155, the court stated at page 157 in its opinion:
Municipalities and private landowners are not liable as a matter of law for minor defects in sidewalks and other walkways because these are commonly encountered and pedestrians should expect such variations in the walkways. Kimball v. Cincinnati (1953), 160 Ohio St. 370, 52 O.O. 237, 116 N.E.2d 708; Gallagher v. Toledo (1959), 168 Ohio St. 508. 7 O.O.2d 364, 156 N.E.2d 466; Helms v. Am. Legion, Inc. (1966), 5 Ohio St.2d 60, 34 O.O.2d 124, 213 N.E.2d 734.
Finally, the court stated in paragraph two of its syllabus in Jeswald v. Hutt (1968), 15 Ohio St.2d 224:
Generally, no liability exists for minor imperfections in the surface of such a parking area — those slight irregularities reasonably to be anticipated in any traveled surface.
Here, the photographs Lanier introduced in her deposition and which she identified as depicting the area in which she fell, depict a buckled or alligatored type of area in the pavement of the parking lot. Lanier has not demonstrated that this defect in the pavement in the parking lot created a triable jury issue, because the photos depict it as the kind within the classification of a minor imperfection — one reasonably to be anticipated on a traveled surface. Thus, because the condition Lanier encountered while traversing the parking lot is a minor imperfection, no liability exists for it. Therefore, no genuine issue of material fact exists, and University Suburban is entitled to judgment as a matter of law. Accordingly, this assignment of error is not well taken, and the judgment of the trial court is affirmed.
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 Common Pleas Court 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.
___________________________________ TERRENCE O'DONNELL, PRESIDING JUDGE
__________________________ MICHAEL J. CORRIGAN, JUDGE
_________________________________ JAMES D. SWEENEY, JUDGE, DISSENTS (See Dissenting Opinion attached)
N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(a).
I respectfully dissent from the majority opinion.
On July 6, 1995, Mrs. Lanier was assisting her friend, Mrs. Francis Ravitz, into the appellee's surgery facility located on Green Road. On the day of the accident, Mrs. Lanier and Mrs. Ravitz both exited the vehicle from the passenger side, Mrs. Lanier from the front and Mrs. Ravitz from the rear. Mrs. Lanier assisted Mrs. Ravitz in exiting the vehicle and then held her right arm in order to assist her in walking. The two women walked around the rear of the vehicle at which time the appellant fell into a depression in the pavement. This depression is described in the deposition by the appellee's counsel as a depression, hole or cracking in the parking lot surface (Depo. T. 38) and by the appellant as cracked and broken and depressed (Depo. T. 44).
Mrs. Lanier stated that as the two women were walking, she was looking toward the building. The depression or hole in the parking lot was "not too far" from the rear of the vehicle (Depo T. 42, 43) and only a few steps had been taken before she fell.
The following questions were asked by the appellee's counsel:
Q. What was it that actually caused you to fall?
A. The sudden drop.
Q. What do you mean by; the sudden drop?
A. The depression in the sidewalk.
* * *
Q. Did your foot go into this depression?
A. Yes, suddenly and then I went forward.
Q. Did you fall forward?
A. Yes.
Q. How did you land?
A. On my shins, because the side of the depression was at knee height.
(Depo. T. 43).
Counsel also inquired:
Q. Now, explain to me why it is when you walked from behind the car toward this depression that you didn't see it?
A. Because I was busy holding her.
Q. Had you looked down you could have seen this —
Mr. Trivers: Objection
Q. True?
A. Probably. Might have. Because the cement was all the same color. So you couldn't determine too easily the level of it.
Q. I understand that it's a pretty obvious situation.
A. If I was walking without helping her it probably would have been obvious.
* * *
Q. Let me ask the question again. Under normal circumstances if you are walking in this parking lot and looking, this is something that was readily observable; true?
Mr. Trivers: Objection
A. Possibly.
Q. Why do you say possibly?
A. You don't always look down.
Q. If you looked down, you would have seen it?
A. I assume the parking lot to be level, you don't usually find a gully in a parking lot.
Q. If you looked down?
A. If I hadn't been helping her.
Q. If you looked down —
A. Yes.
Q. — you would have seen it?
A. Possibly.
(Depo T. 45-46.)
The appellant sets forth one assignment of error, arguing that there is a question of material fact as to what a reasonable person should have observed under the circumstances. The appellant points out that in her deposition testimony she did not unequivocally state that her view was obstructed by Mrs. Ravitz, but rather, stated only that the depression or hole was difficult to differentiate because it was the same in color to the rest of the parking lot and that she might have seen the defect if she had not been helping her friend. In essence then, the appellant asserts that the defect in the parking lot was not such an open and obvious danger that a similarly situated, reasonable and prudent person would have observed the defect.
Recently, the Supreme Court reiterated that in order to establish actionable negligence, the plaintiff must show the existence of a duty, a breach of the duty, and an injury proximately resulting therefrom. Texler v. D.O. Summers Cleaners Shirt Laundry Co. (1998), 81 Ohio St.3d 677 (Amount of contributory negligence, if any, of plaintiff who walked into a door propped open across sidewalk by a bucket containing concrete blocks is an issue left for the jury to resolve.) In Texler, a case which the majority blithely ignore, the Supreme Court also reaffirmed the proposition that the existence of a particular party's duty depends on the foreseeability of the injury. Id.
The test to be used then, is whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance of an act. Texler citing to Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75. The Texler court cited to Grossnickle v. Germantown (1965), 3 Ohio St.2d 96, for the proposition that a pedestrian using a public sidewalk is under a duty to use care reasonably proportioned to the danger likely to be encountered but is not, as a matter of law, required to look constantly downward. Perhaps more importantly, in Texler, supra, the court indicates that it continues to hold that the question of whether the contributory negligence of a plaintiff is the proximate cause of the injury is an issue for the jury to decide pursuant to the modern comparative negligence provisions of R.C. 2315.19(A)(1).
In Lovejoy v. Sears, Roebuck Co. (June 19, 1998), Lucas App. No. L-98-1025 the court cited to Diehlman v. Braunfels (Aug. 1, 1997) Lucas App. No. L-96-357 for the proposition that when a surface and the object on which a person falls are the same color, a genuine issue of fact exists as to whether the object is open and obvious.
In the case sub judice, the majority determined that the appellant failed to meet her burden based upon pictures attached as evidence. The majority concludes that the photos of the parking lot depict the hole as the kind within the classification of a minor imperfection — one reasonable to be anticipated on a traveled surface. I believe that determination is one for a jury to decide, since other photographs clearly depict a substantial defect and the appellant testified: 1) there was a sudden drop; 2) that the depression was of knee height; and, 3) that the cement was all the same color making it difficult to determine the level of the defect. When construing the evidence most strongly against the appellee, reasonable minds could differ as to the proper distribution of negligence between the parties. Under Texler, supra, this precept is sufficient to surmount a motion for summary judgment.
The appellant's assignment of error should be well taken and judgment should be reversed and remanded.