holding that no liability would accrue to the owner or occupier of private premises for minor imperfections which are commonly encountered and are not unreasonably dangerous
How later courts described this case
- holding that no liability would accrue to the owner or occupier of private premises for minor imperfections which are commonly encountered and are not unreasonably dangerous
- “[M]inor or trivial imperfections [ ] which are not unreasonably dangerous and which are commonly encountered and to be expected, as a matter of law, do not create liability . . . .”
- applying de minimis rule for municipalities to private landowners where such minor defects are commonly encountered
Written by the judges who cited it.
The opinion
Brown, J.,
dissenting. The idea that a trial court may decide on the basis of a physical measurement that a defect in walks or stairways is not actionable appears to be unique to Ohio law. Such a holding with reference to a difference in elevation between adjacent parts of a municipal sidewalk is found in Harris v. City of Detroit (1962), 367 Mich. 526 , 117 N. W. 2d 32 , where a defendant’s motion to dismiss plaintiff’s action for damages for injuries received in a fall caused by a one-inch depression in a city sidewalk was sustained on the mathematical rule of law that any defect two inches or less, no matter what the circumstances, was not actionable. Three justices dissented forcefully in the Harris case. The following editorial comment upon that decision appeared thereafter in 30 University of Pittsburgh Law Review, 665, 667:
“The Harris decision states that in the future plaintiffs will not be permitted to introduce evidence if their pleading shows that the defect complained of is less than two inches in depth. Whereas all decisions [in Michigan] prior to Harris affirmed the use of the directed verdict or the ruling non obstante veredicto — meaning that after the plaintiff had pre *68 sented evidence the court could then sanction no finding of negligence — the Harris rule denies the complainant the right to present his case. Such a rule is indefensibly arbitrary.”
The significant development in Ohio case law on this point first appeared in Kimball v. City of Cincinnati, 160 Ohio St. 370 ; and proceeded in O’Brien v. City of Toledo, 167 Ohio St. 35 ; Griffin v. City of Cincinnati, 162 Ohio St. 232 ; and Gallagher v. City of Toledo, 168 Ohio St. 508 .
None of those cases and none of the cases decided in the majority opinion were decided upon demurrer. With the exception of the Griffin case, all involved appellate review of the trial court’s refusal to direct a verdict at the close of all the evidence, and hence were merely an application of existing rules which permit the trial court at the close of all the evidence to direct a verdict for the defendant if it is of the opinion that reasonable minds can come to but one conclusion and that conclusion is that negligence did not exist or that under all the circumstances the sidewalk was reasonably safe.
Subsequent to the Kimball case, the following comment appeared in 30 Cincinnati Law Review 539, suggesting that it is improper to arrive at a mechanical determination of negligence even at the close of the evidence. We quote from that article, at page 542:
“In Ohio the Supreme Court purports to review these cases on the basis that they involve a question of public or great general interest. Since the nature of the defect, its location and surrounding circumstances, all of which bear upon the question of the danger presented, vary from case to case, and since it is obviously impractical for the Supreme Court to lay down guiding principles which will enable trial judges to distinguish as a matter of law between substantial and insubstantial defects, it is submitted that the distinction is initially one which the trial judge should make in his discretion in ruling on a motion for a directed verdict.”
This is a law student speaking, but a substantial number of courts have agreed.
The Supreme Court of Iowa rejected the artificial mechanical application of the yardstick in determining negligence in Beach v. City of Des Moines, 238 Iowa 312 , 26 N. W. 2d 81 .
*69 Colorado called the imposition of such standards, “basically wrong in so far as they determine negligence solely by inches,” “improper and error” and “an absurd situation,” and refused to subscribe thereto. Parker v. City and County of Denver, 128 Colo. 355 , 262 P. 2d 553 .
In Ray v. Salt Lake City, 92 Utah 412 , 69 P. 2d 256 , the Utah court said it must be obvious that “the courts cannot arbitrarily determine that maintenance of a particular defect * * * does or does not constitute negligence.”
It is more significant that the Court of Appeals of New York, which once permitted courts, under so-called “four-inch rule,” to determine when a particular defect could be dismissed as insubstantial, returned such determinations to the jury in 1948. Loughran v. City of New York, 298 N. Y. 320 , 83 N. E. 2d 136 .
Eecently this court, differently constituted due to the substitution of a visiting Court of Appeals judge sitting in place of a member of this court, refused to extend the rule of the Kimball case to sidewalks other than those of a municipality. Smith v. United Properties, Inc., 2 Ohio St. 2d 310.
In summary, the present minority of this court would continue to apply the Kimball rule in cases involving city sidewalks in situations in which there are no extraordinary circumstances. The minority, however, is of the opinion that a demurrer cannot be sustained to a petition charging negligence on the sole ground that the defect as measured is not a substantial defect.
Schneider, J., concurs in the foregoing dissenting opinion.