stating that a difference in height of two inches or less in the concrete of the public walkway create a presumption that the defect is insubstantial and not actionable as a matter of law which may be rebutted by a showing of attendant circumstances sufficient to render the defect substantial
How later courts described this case
- stating that a difference in height of two inches or less in the concrete of the public walkway create a presumption that the defect is insubstantial and not actionable as a matter of law which may be rebutted by a showing of attendant circumstances sufficient to render the defect substantial
- finding that traffic signals, heavy pedestrian traffic and surrounding vehicular traffic were sufficient attendant circumstances to create a genuine issue of material fact about an otherwise insubstantial as a matter of law defect in a crosswalk
- holding that a difference in elevation between adjoining surfaces of two inches or less is trivial, as a matter of law, unless circumstances attending a plaintiff's fall created a substantial risk of injury.
- explaining that case law following Kimball extended the Kimball holding to one-half of an inch to two inch variations
Written by the judges who cited it.
Distinguished
Distinguished by Mohn v. Wal-Mart Stores, Inc., 6-08-12 (12-1-2008), 2008 Ohio 6184 (2008)
Specifically, Mohn asserts that the trial court should not have applied the "two inch rule" established by Cash, supra, because the facts of Cash are distinguishable and because attendant circumstances dictate against an application of the doctrine.
Distinguished by Simmons v. Plaza View, Inc., Unpublished Decision (12-9-1999) (1999)
this Court distinguished the facts from those in Cash, and held that the one-half inch defect was insubstantial as a matter of law.
The opinion
Whiteside, J.,
concurring. Although I concur in the judgment and in part in the syllabus, I must travel a slightly different road to reach that result which I feel is directly inconsistent with Gallagher v. Toledo (1959), 168 Ohio St. 508 , which should be overruled, at least in part.
Considerable reliance is placed upon Griffin v. Cincinnati (1954), 162 Ohio St. 232 , and that case supports the conclusions reached. However, mention was made but no consideration given to the fact that Griffin was expressly overruled by a majority of this court in Gallagher v. Toledo, supra, to the extent that Griffin is inconsistent with that case and O’Brien v. Toledo (1957), 167 Ohio St. 35 . The result in this case cannot be reconciled with that in O’Brien or Gallagher, supra, nor can the result in Gallagher be reconciled with that in Griffin .
At all times it must be borne in mind that the basic issue presented is whether the defect in the crosswalk is so substantial that reasonable minds could conclude that such defect made the crosswalk unsafe for travel in the usual and ordinary modes. This is the duty of the city imposed by R. C. 723.01 to keep the streets and sidewalks “open, in repair, and free from nuisance.” As this court stated in the fourth paragraph of the syllabus of Taylor v. Cincinnati (1944), 143 Ohio St. 426 , R. C. 723.01 (formerly G. C. 3714) “does not enjoin upon municipalities a specific legal requirement, but provides a general rule of conduct and makes negligence the basis of liability for its violation, unless an absolute nuisance is proven to exist.” The nature of this duty is set forth m the fifth paragraph of the syllabus of Taylor as being a requirement of “reasonable care and vigilance, in view of all the surroundings, to keep such streets and ways in a reasonably safe condition for travel in *328 the usual and ordinary modes, and does not exact that which is unreasonable or impracticable.”
Although there has been some criticism of what has been termed “negligence by ruler,” almost every state which has considered liability resulting from street or sidewalk defects has adopted to one degree or another a rule which could be termed “negligence by ruler.” See Annotation, Degree of inequality in sidewalk which makes question for jury or for court, as to municipality’s liability, 119 A.L.R. 161 ; and Annotation, Existence of actionable defect in street or highway proper as question for court or for jury, 1 A.L.R. 3d 496 .
The necessity of the much criticized “negligence-by-ruler” determination of negligence is readily apparent. 4 In many instances, the only claimed defect is in itself a matter of difference in elevation. Where the only claimed defect is a difference in elevation between two adjoining slabs of a sidewalk, of necessity the dimension becomes important. The question is not “negligence by ruler,” but, rather, the extent to which differences in elevation are to be expected and the extent to which they do not render the sidewalk unsafe for travel in ordinary modes. Obviously, there must be situations where reasonable minds can only conclude that the defect is not so substantial as to render the sidewalk unsafe for pedestrian travel. Probably no one would contend that a 1/64-inch difference in elevation between two adjoining slabs of a sidewalk constitutes actionable negligence. The issue is not “negligence by ruler” but, rather, the point at which reasonable minds can reach different conclusions as to whether the sidewalk or crosswalk is reasonably safe for pedestrian travel in the ordinary modes. This has been a most vexing issue for the courts through the years. Some 74 years ago the so-called negligence-by-ruler rule was applied in Dayton v. Glaser (1907), 76 Ohio St. 471 , with respect to vehicular traffic in a street with a great number of holes from three to five inches deep.
Although the judgment reached by this court today is proper, such result can be reached only if some, but not all, of the prior decisions of this court be at least modified. In Kimball v. Cincinnati (1953), 160 Ohio St. 370 , for example, where the *329 variation in adjoining slabs was only one-half to three-fourths of an inch, the sidewalk was crumbled in spots, and the evidence was that the plaintiff “slipped when her left foot was placed in one of the crumbled spots, and that when she brought her right foot past the left foot the toe of her right shoe caught on the raised portion of the joint, causing her to fall,” the condition of the sidewalk was considered a slight defect. On the other hand, the next year, in Griffin v. Cincinnati, supra ( 162 Ohio St. 232 ), a majority of the court reached a different conclusion, stating in the second paragraph of the syllabus:
“Where an abrupt raise of a section over an adjoining section of a cracked and broken concrete sidewalk in the downtown section of a city is as high as two inches, and where there is a triangular hole in the corner of a section adjacent to such abrupt raise, it can not be held as a matter of law that such defects are so slight that danger to a pedestrian from their existence may not be reasonably anticipated.”
Thus, at that time, there was the Kimball rule that a three-fourths inch difference in elevation, coupled with a crumbled sidewalk, is not a substantial defect, and the Griffin rule that a difference in elevation between adjoining slabs of two inches, coupled with an adjacent triangular hole, was a defect of such a nature that reasonable minds could reach different conclusions as to whether it was sufficiently substantial to create an unsafe condition for travel in ordinary modes in the downtown section of a city. Kimball and Griffin are not necessarily incompatible.
However, Griffin was repudiated and in effect overruled by the majority of the court in Gallagher v. Toledo, supra ( 168 Ohio St. 508 ), which purported to follow Kimball , as well as O’Brien v. Toledo, supra ( 167 Ohio St. 35 ). It is apparent that O’Brim, as well as Gallagher , are inconsistent with Griffin as are many subsequent cases, including Buckley v. Portsmouth (1959), 168 Ohio St. 513 ; Amos v. Cleveland Heights (1959), 169 Ohio St. 367 ; and Kindle v. Akron (1959), 169 Ohio St. 373 .
In other words, Griffin is compatible with Kimball and with Glaser and the intervening cases, but is incompatible with most of the subsequent cases. The majority herein relies heavily upon Griffin . Following Griffin necessitates a reversal of *330 the Court of Appeals and an affirmance of the Court of Common Pleas. 5
Reasonable minds could conclude that the defect in question was substantial only if the prior rule of law established by the many decisions of this court, except Griffin , is somewhat modified. Thus, an appropriate holding would be that, where the sole claimed defect is a difference in the elevation of all or part of two adjoining slabs of a sidewalk, reasonable minds could not conclude that the defect is substantial if the difference in elevation be two inches or less. However, reasonable minds could conclude that a 12 to 14-inch wide, one and one-half inch deep trench extending the width of a crosswalk in a heavily pedestrian-traveled downtown section of a city constitutes a substantial defect, that is, reasonable minds could conclude that the crosswalk under those circumstances is not reasonably safe but is dangerous for travel by pedestrians. 6 Such a conclusion does require at least the modification of Kimball, O'Brien, Gallagher, Amos and Kindle and any other case holding to the same effect.
Accordingly, the first paragraph of the syllabus should indicate that Gallagher v. Toledo, supra, is overruled insofar as it overruled Griffin ; that Kimball, OBrien, Amos and Kindle are modified to the extent they are inconsistent herewith; and that Griffin v. Cincinnati, supra, is approved and followed.
Potter, J., concurs in the foregoing concurring opinion.
Full consideration was given to the issue in Kimball v. Cincinnati (1953), 160 Ohio St. 370 , at pages 372-373.
It would be appropriate for this court to approve and follow Griffin , while at the same time overruling Gallagher which overruled Griffin . At the same time, O’Brien, Buckley, Amos and Kindle must be at least questioned as must many succeeding cases. The same result may well have been reached in many of them because of the issue of contributory negligence.
In other words, the two-inch rule should be limited to differences in elevations between adjoining slabs of a sidewalk. Obviously, there are elevations greater than two inches which, as a matter of law, do not constitute substantial defects. An example would be the curb or a step or steps in a sidewalk.
On the other hand, when we are concerned with trenches dug in a sidewalk, or holes in a sidewalk created by deterioration, the totality of the circumstances, including the portion of the city in which the sidewalk is located, the amount of anticipated traffic and the total nature of the defect must be considered in addition to mere elevation in determining whether reasonable minds could differ upon the question of whether the sidewalk is reasonably safe or dangerous for pedestrian travel.