Maresh v. Univ. of Akron ( 2011 )

[Cite as Maresh v. Univ. of Akron, 2011-Ohio-5331.]
Court of Claims of Ohio
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
BARBARA P. MARESH, et al.
Plaintiffs
v.
THE UNIVERSITY OF AKRON
Defendant
Case No. 2010-09400
Judge Alan C. Travis
DECISION
{¶1} On July 25, 2011, defendant filed a motion for summary judgment pursuant
to Civ.R. 56(B). On August 15, 2011, plaintiffs notified the court that they would not file
a response. The case is now before the court for a non-oral hearing.
{¶2} Civ.R. 56(C) states, in part, as follows:
{¶3} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, 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. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317.
{¶4} On August 26, 2006, plaintiffs, Barbara and Robert Maresh, attended the
graduation of Robert’s daughter at defendant’s university.1 After the graduation
program had concluded, plaintiffs descended the steps from the auditorium to a
sidewalk which led to the lot were their car was parked. Plaintiff was talking to her
husband as they walked toward the parking lot and came upon a section of the sidewalk
that was raised approximately one inch from the adjacent section of concrete.
(Plaintiff’s deposition, page 14; Complaint, ¶6.) Plaintiff tripped on the irregular surface
and fell, injuring her back, left ankle, and right elbow. Plaintiffs assert that the raised
section of the sidewalk constituted a dangerous condition and that defendant was
negligent for allowing such condition to exist on its premises.
{¶5} In order for plaintiff to prevail upon her claim of negligence, she must prove
by a preponderance of the evidence that defendant owed her a duty, that defendant’s
acts or omissions resulted in a breach of that duty, and that the breach proximately
caused her injuries. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 81, 2003-Ohio-
2573, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77.
{¶6} Under Ohio law, the duty owed by an owner or occupier of premises
generally depends on whether the injured person is an invitee, licensee, or trespasser.
Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315, 1996-
Ohio-137. Plaintiff was on defendant’s premises for purposes that would classify her as
an invitee, defined as a person who comes “upon the premises of another, by invitation,
express or implied, for some purpose which is beneficial to the owner.” Baldauf v. Kent
State Univ. (1988), 49 Ohio App.3d 46, 47. An owner or occupier of premises owes its
invitees “a duty of ordinary care in maintaining the premises in a reasonably safe
condition and has the duty to warn its invitees of latent or hidden dangers.” Armstrong,
supra, at 80.
{¶7} “An owner is not, however, an insurer of the customer's safety.” Blain v.
Cigna Corp., Franklin App. No. 02AP-1442, 2003-Ohio-4022, ¶7.
1
For the purposes of this decision, “plaintiff” shall refer to Barbara Maresh.
{¶8} An owner or occupier of premises “is generally not liable for minor defects in
sidewalks and walkways because these are commonly encountered and pedestrians
should expect such minor defects.” Blain, supra, at ¶8, citing Stockhauser v.
Archdiocese of Cincinnati (1994), 97 Ohio App.3d 29, 32. The Supreme Court of Ohio
has “promulgated what has now come to be known as the ‘two-inch rule,’ which
provides that a difference in elevation in a sidewalk or walkway, which is less than two
inches, is insubstantial as a matter of law” unless the attendant circumstances raise a
question as to whether the defect was substantial. Id. at ¶8-9. “[A]ttendant
circumstances are those that divert the attention of the pedestrian, significantly enhance
the danger of the defect, or contribute to the fall.” Id. at ¶17. Attendant circumstances
include “‘the condition of the sidewalk as a whole, its pedestrian traffic volume, visibility
of the defect, and whether the accident site was such that one's attention could easily
be diverted.’” Id. at ¶11, quoting Hughes v. Kozak (Feb. 22, 1996), Cuyahoga App. No.
69007.
{¶9} Furthermore, plaintiff has a duty to exercise some degree of care for her
own safety while walking. See Lydic v. Lowe’s Companies, Inc., Franklin App. No.
01AP-1432, 2002-Ohio-5001, at ¶16. “A pedestrian’s failure to avoid an obstruction
because he or she did not look down is no excuse.” Id.{¶10} In her deposition, plaintiff stated that she was “casually walking” at the
time of the incident. According to plaintiff, the weather was clear, the sidewalk was dry,
and the section of sidewalk that she tripped on was raised approximately one inch
above the adjacent pavement. (Plaintiff’s deposition, pages 12, 14, 19.) Plaintiff failed
to present evidence of any other attendant circumstances.
{¶11} Defendant submitted the affidavit of Lieutenant Dale Gooding, who is
employed by defendant’s police department and avers as follows:
{¶12} “6. As part of my duties and responsibilities of working for the
University of Akron Police Department, I report to accident scenes and complete
incident/police reports. On August 26, 2006, I responded to a call at the E.J. Thomas
Hall Performing Arts Center. I arrived on the scene at 12:40 p.m. Mr. Robert Maresh
and Ms. Barbara Maresh pointed out a portion of the concrete sidewalk that was raised
approximately one-inch from the adjacent portion of the walkway. They informed me
that this elevation change caused Ms. Maresh to fall. * * *”
{¶13} Construing the evidence most strongly in plaintiff’s favor, the only
reasonable conclusion to be drawn from the evidence is that the difference in the
elevation in the sidewalk was insignificant and that plaintiff’s fall was not caused by any
hidden or hazardous condition on defendant’s premises. Inasmuch as the condition
was not an unreasonable danger, as a matter of law, defendant owed no duty to repair it
or warn pedestrians. See Denny v. Ohio State Univ. (Aug. 21, 1997), Franklin App. No.
97API02-278. Therefore, the derivative claim for loss of consortium also must fail. See
Bowen v. Kil-Kare, Inc. (1992), 63 Ohio St.3d 84, 93. Accordingly, defendant’s motion
for summary judgment shall be granted and judgment shall be rendered in favor of
defendant.
Court of Claims of Ohio
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
BARBARA P. MARESH, et al.
Plaintiffs
v.
THE UNIVERSITY OF AKRON
Defendant
Case No. 2010-09400
Judge Alan C. Travis
JUDGMENT ENTRY
{¶14} A non-oral hearing was conducted in this case upon defendant’s
motion for summary judgment. For the reasons set forth in the decision filed
concurrently herewith, defendant’s motion for summary judgment is GRANTED and
judgment is rendered in favor of defendant. Court costs are assessed against plaintiffs.
The clerk shall serve upon all parties notice of this judgment and its date of entry upon
the journal.
_____________________________________
ALAN C. TRAVIS
Judge
cc:
David B. Shillman Emily M. Simmons
720 Leader Building Assistant Attorney General
526 Superior Avenue, East 150 East Gay Street, 18th Floor
Cleveland, Ohio 44114-1457 Columbus, Ohio 43215-3130
AMR/dms
Filed September 1, 2011
To S.C. reporter October 13, 2011