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Distinguished by Simmons v. Plaza View, Inc., Unpublished Decision (12-9-1999) (1999)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
Clifford F. Brown,
J., concurring. It is my view, too, that under the facts in this case we need not disturb the rule *331 and standard established in Kimball v. Cincinnati, (1953), 160 Ohio St. 370 , that a variation from one-half to three-fourths of an inch in height of adjacent sections of a sidewalk within a city caused by climate and natural wear and tear is as a matter of law so insubstantial that it does not constitute negligence, or any evidence of negligence, of such city. I would confine this rule to municipal corporations only and not apply it to private contractors who by construction work create similar uneven conditions or depressions in a sidewalk or crosswalk. Kimball, supra, should be confined to its particular facts, in view of Griffin v. Cincinnati (1954), 162 Ohio St. 232 , which held that where an abrupt raise of a section over an adjoining section of a cracked and broken concrete sidewalk in a city is as high as two inches, with a triangular hole in the corner of a section adjacent to such abrupt raise, a jury issue of negligence on the part of the municipality exists.
It should be noted that in Smith v. United Properties, Inc. [and Schilliger v. Graceland Shoppers Mart, Inc.] (1965), 2 Ohio St. 2d 310 , at paragraphs two and three of the syllabus, the pronouncements in Kimball, supra, were extended to owners or occupiers of private property, with some modifications, as follows:
“2. The common-law duty of the owner of a shopping center to exercise ordinary care for the safety of its invitees is that degree of care which an ordinarily reasonable and prudent person exercises, or is accustomed to exercise, under the same or similar circumstances.
“3. All the attendant circumstances must be considered in order to determine whether a sidewalk in a shopping center is reasonably safe for the use of invitees and such determination does not depend solely upon the matter of variation in the height of adjacent blocks in such sidewalk.”
One year later in Helms v. American Legion, Inc. (1966), 5 Ohio St. 2d 60 , with reference to private property owners or occupiers, the court overruled the Smith [and Schilliger] decision, supra, but expressly retained the entire syllabus thereof, giving the following reason, at page 63, in its opinion:
“ * * * We do not disapprove or disturb the syllabus because we recognize that there may be instances of defective surfaces *332 used by pedestrians or vehicles to which that syllabus could well be applicable.”
The caveat from all the foregoing cases is that in any given sidewalk defect case, whether involving a municipally controlled sidewalk as in Kimball, supra, or a privately owned or controlled sidewalk as in Smith [and Schilliger] and Helms, supra, where natural wear and tear and climate create the uneven condition, the rigid dimensional factor should not be paramount in deciding that a jury issue exists; rather, the dominant factors for consideration are “all the attendant circumstances.” See paragraph three of the syllabus in Smith [and Schilliger], supra. See, also, Helms v. American Legion, supra, at pages 67-69, dissenting opinion, where Judge Paul Brown cogently observed:
“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. * * *
<< * * *
“The Supreme Court of Iowa rejected the artificial mechanical application of the yardstick in determining negligence in Beach v. City of Des Moines [1947], 238 Iowa 312 , 26 N.W. 2d 81 .
“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 [1953], 128 Colo. 355 , 262 P. 2d 553 .” See annotation 37 A.L.R. 2d 1187 .
Additionally, the defendants, Langenheim & Thomson Company, and Wray Electric Contracting, Inc., who were jointly active through their construction work in creating this crosswalk defect or depression, should not have the benefit of a Kimball thimble-dimensional rule where the unevenness resulted from climate and natural wear and tear.
In future sidewalk cases this court should not be barricaded in a judicial hole, wearing the strait jacket of a per se dimensional measurement rule as to sidewalk unevenness, unable to be aided by “all attendant circumstances” if the factual posture demands such aid. Rule v. Bay City (1972), 387 Mich. 281 , 195 N.W. 2d 849 ; Klein v. District of Columbia *333 (C.A.D.C. 1969), 409 F. 2d 164, 167 ; Seitter v. St. Joseph (Mo. App. 1962), 358 S.W. 2d 263 ; 1 A.L.R. 3d 496 , 500.
This court establishes legal precedent. But it also possesses the power, and has the duty, to promote the continuous growth and progress of the law. The Supreme Court necessarily fashions new legal principles, and expands upon established rules of law so that justice may be done.
For example, Justice Cardozo in the landmark case of MacPherson v. Buick Motor Co. (1916), 217 N.Y. 382 , 111 N.E. 1050 , by abrogating the privity of contract concept in negligence and imposing liability on a manufacturer to the customer, departed from earlier precedents which had decided otherwise. Justice Cardozo was aware that earlier case law had held the automobile not so dangerous as to impose a legal duty on the manufacturer to protect the ultimate consumer. But this great jurist noted that “ [precedents drawn from the days of travel by stage coach do not fit the conditions of travel to-day. The principle that the danger must be imminent does not change, but the things subject to the principle do change. They are whatever the needs of life in a developing civilization require them to be.” MacPherson v. Buick, supra, at 391 .
Similarly, this court is not bound by the strait jacket of past precedent. Justice, and not numerous past precedents, is and should be our beacon light. Guided by these standards, we need not reconcile paragraph one of the syllabus with every phrase and clause of all other cases cited in the concurring opinion of Judge Whiteside. Neither can all those cited cases be reconciled with each other.