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OH Says No to Trip and Fall
by Ron Davis
A woman who suffered an injury from a fall at an Ohio shopping center has failed in her bid to show that negligent construction of the center’s sidewalk caused her accident.
The shopping center is Meadowbrook Market Square, in Cleveland, and the woman’s fall occurred as she walked from one tenant store to another. Since that was her first visit to the center, she said she had difficulty spotting the entrance to the tenant store she intended to visit. Apparently, her attention was diverted from where she was walking and thus she failed to notice an elevated section of ornamental bricks that are laid into the concrete of the sidewalk.
Those ornamental bricks serve no purpose except as decoration to the entrance of each store at the shopping center. Some borders of the brickwork are mortared to the surrounding concrete in order to make them level with the walkway surface. In the spot where the woman fell, however, the brick is not mortared to the surrounding concrete. Instead, the surface of the bricks is raised three-quarters of an inch above the level of the concrete.
As a result of her fall, the woman complained of neck, head, and shoulder injuries. She subsequently sued, claiming that the shopping center owner allowed a dangerous condition to exist. In response, the shopping center’s owner pointed out that Ohio’s courts have ruled that adjoining differences of portions of a sidewalk or walkway can be up to “two inches in height” before pedestrians are endangered. And photographs of the area where the woman fell convinced the judge in the case that the change in elevation between the bricks and surrounding concrete was “minute.” He therefore dismissed the lawsuit against the shopping center owner.
The woman appealed, noting that the courts have also ruled that if “attendant circumstances” are present to distract a pedestrian, the two-inch rule does not necessarily apply. And, she added, store windows, other pedestrians, and vehicular traffic could have distracted her from watching where she was walking.
An Ohio appellate court also ruled in favor of the shopping center owner, explaining, “At best, the change in elevation at the spot where the woman fell constitutes a minor deviation. This, along with other evidence [that she was not distracted], effectively demonstrates that the minor imperfection was insubstantial. Therefore, her contentions rest upon attendant circumstances, and the woman has failed to produce evidence of attendant circumstances to support her claim that the deviation should be considered ‘substantial.’” (Willen v. Goudreau Management Corp., 2005 WL 1118161 [Ohio App. 8 Dist.]
Decision: May 2005
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