Swiger v. Kohl's Department Store, Inc.

Froelich, Judge,

concurring.

{¶ 12} I concur.

{¶ 13} If the defect or anomaly, without being hidden or concealed from view, is trivial, slight, or insubstantial, then the area is in reasonably safe condition for travel and the premises’ owner has no liability. See, e.g., Cash v. Cincinnati (1981), 66 Ohio St.2d 319, 20 O.O.3d 300, 421 N.E.2d 1275.

{¶ 14} If the defect or anomaly, without being hidden or concealed from view, is large enough to be open and obvious, the premises’ owner has no duty and no liability. See, e.g., Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d 642, 597 N.E.2d 504.

{¶ 15} Apparently, like Goldilocks, only when the anomaly or defect is “just right” is there potential liability. This is a close case, but that’s what juries are for.