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Fall’s Faller’s Fault
by Ron Davis

A customer of an Ohio shopping center simply didn’t use good judgment before she fell and injured herself in the center’s parking area. So ruled Ohio’s courts in a slip-and-fall lawsuit involving a Dayton-area shopping center owned by New Plan Excel Realty Trust, Inc.

The customer had claimed that she tripped over a raised portion of black vinyl edging installed at the shopping center on one side of a landscaped plant and mulch bed. That bed is located in front of several storefronts of the shopping center.

In suing both the shopping center’s owner and the firm that landscaped the center’s parking area, the woman admitted that she was neither distracted nor hurried at the time of her fall. But she added that the landscape edging and the mulch in the landscaping bed were both black and difficult to discern. She also said her view was hampered by shadows shading the landscaping bed during the time of her fall.

Under Ohio law, such “attendant circumstances” as those she described allow an injured person some leeway in a lawsuit. In other words, the courts will consider those circumstances as points favoring the injured. But the distractions must clearly divert the attention of the victim, “significantly enhance the danger of the defect, and contribute to the fall.”

An Ohio court concluded that the injured woman’s argument was not persuasive. Explained the judge, “Reasonable minds could only conclude that the black edging used along one side of the landscaping bed to separate the mulch bed from the brick pavers and concrete walkway was an open and obvious hazard from which the shopping center’s owner may reasonably expect that this customer would discover and take appropriate action to protect herself. Further, reasonable minds could come to but one conclusion and that conclusion is adverse to the injured woman on the issue of whether the attendant circumstances she cited avoided the open and obvious doctrine. (Armentrout v. Meyer’s Garden Center and Landscaping, Inc., 2005 WL 2936698 [Ohio App. 12 Dist.])

Decision: November 2005
Published: December 2005



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