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The Hole Truth
by Ron Davis

Inability to recount essential details of a trip-and-fall accident at a shopping center entranceway has doomed an Ohio woman’s lawsuit against the center’s owner.

The shopping center, located in Cincinnati, sits adjacent to a busy street and is bordered by a city-owned sidewalk. The woman fell while walking along the sidewalk as she was returning home after shopping at a nearby grocery store.

Her fall occurred as she approached a driveway that leads into the shopping center. She stumbled over what she later described as cracks and holes in the sidewalk. As a result of her fall, she suffered serious injuries, requiring numerous surgical operations.

She sued the city of Cincinnati and the shopping center’s owner, claiming that they had negligently failed to maintain and repair the sidewalk and had given no warning of its “dangerous condition.” In response, the city and the center’s owner argued that the sidewalk’s condition was an “open and obvious danger” that she should have seen and avoided. The city also pointed out that it had never received any previous warning of any holes in the sidewalk surface at that location.

But the injured woman countered that their argument doesn’t apply in a situation where a pedestrian walking along the street is distracted. And, she added, traffic entering and leaving the shopping center at the point of her fall would certainly count as a distraction.

Finally, she cited a Cincinnati regulation that requires the owner of land that abuts a paved sidewalk to keep that sidewalk and its curb “in repair and free from nuisance.”

An Ohio court, in ruling in favor of the city and the shopping center, explained, “There is nothing to suggest that the shopping center owner had created the hole in the sidewalk or that the deterioration had resulted from the owner’s negligence…. At no time did the injured woman affirmatively state that she had fallen because of a specific defect in the sidewalk…. Her answer to questioning was also not specific as to cause. She stated that a ‘hole in the concrete’ had caused her fall. But she did not identify a particular hole and thus failed to show what specifically had caused her to fall.” (Primm v. City of Cincinnati, Slip Copy, 2008 WL 746940 [Ohio App. Dist.])

Decision: March 2008
Published: April 2008



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