Cash v. City of Cincinnati

421 N.E.2d 1275, 66 Ohio St. 2d 319, 20 Ohio Op. 3d 300, 1981 Ohio LEXIS 515

• Court: Ohio Supreme Court
• Decided: June 10, 1981
• Docket: No. 80-929
• Status: Published

Opinions

Holmes, J.

1 — 1

In the Court of Appeals, the defendants predicated their assignments of error on the argument that the defect in the crosswalk, as alleged by plaintiff, was only a minor imperfection and, as such, was not actionable as a matter of law by plaintiff. In support of that argument, defendants cited prior Ohio case law, emphasizing Kimball v. Cincinnati (1953), 160 Ohio St. 370, and other cases following, such as O’Brien v. Toledo (1957), 167 Ohio St. 35; Gallagher v. Toledo (1959), 168 Ohio St. 508; Buckley v. Portsmouth (1959), 168 Ohio St. 513; Amos v. Cleveland Heights (1959), 169 Ohio St. 367; Kindle v. Akron (1959), 169 Ohio St. 373.

The opinion in Kimball, and the case law that followed, applied a standard which involved the degree or extent of the sidewalk variation or imperfection which as a matter of law would not present a jury question on the issue of negligence.¹ Those opinions held in effect that variations in elevation between adjacent sections of a sidewalk, or depressions, or the like, where the defects complained of involved changes in height of one-half of an inch to two inches, were only insubstantial imperfections creating no liability of the municipality to the one who fell while traversing them. In the later case of Helms v. American Legion, Inc., (1966), 5 Ohio St. 2d 60, the court extended the rule to privately owned or occupied properties.

The plaintiff, in the Court of Appeals, as well as here, argued that the prior Ohio cases do not set forth or establish an inflexible rule that a defect of less than two inches is per se insubstantial, and therefore not actionable as a matter of law. In this regard, plaintiff points out that these opinions noted that each case must be determined in light of its own particular circumstances. Plaintiff refers to the language of the court in Kimball, supra, at page 373, as follows:

“[W]e do not propose to adopt any maximum variation in height as the boundary line between a condition not due to negligence and one which should be submitted to a jury.”

However, it should be noted that this court, in most of the subsequent cases as noted, again referred to the insubstan-tiality of the defect in the sidewalk in terms of inches.

A variable, but temporary, course was charted by a majority of this court when, in Griffin v. Cincinnati (1954), 162 Ohio St. 232, it was stated in the second paragraph of the syllabus that:

“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 comer 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.”

There was a strong dissent in Griffin, stating, at page 244, that there had not been evidence to “justify, without a substantial speculation as to the nature and extent of those defects, a conclusion by reasonable minds that that sidewalk, lighted as it was, was not ‘in a reasonably safe condition for travel’ on foot***.”

Griffin, supra, was expressly overruled by a majority of this court in Gallagher v. Toledo, supra, where, in his concurring opinion, Justice Bell stated:

“In the O’Brien case this court unanimously followed the unanimous decision in the Kimball case holding, in effect, that to impose liability on a municipality for a defect in a sidewalk, that defect must be a substantial and not a slight one.”

In all the aforestated cases relative to municipal sidewalks, the basic underlying premise was that municipalities are not insurers of the safety of those pedestrians who use municipal walkways. However, over the years there have been differing expressions concerning the rationality of the application of the principle of “negligence by ruler” in order to determine the substantialness of a defect which would give rise to a jury issue. Whether a difference in elevation between adjoining sections of a public sidewalk of two inches or less is an insignificant, trivial and unsubstantial condition, which is not actionable as a matter of law, has been questioned in the past by a number of members of this court, as well as some other state courts.² Yet, the rule has remained steadfast throughout the years since its pronouncement in Kimball, and was even extended to the owners or occupiers of private premises by this court in Helms, supra, by a 4 to 3 vote, albeit with marked differences of position from that of the members of the court in Smith v. United Properties, Inc. (1965), 2 Ohio St. 2d 310.³

The basic purpose of the rule, that of narrowing the scope of the municipality’s liability in sidewalk defect cases may well have as much merit today as it did when Kimball was pronounced. As was stated in the annotation entitled, Degree of inequality in sidewalk which makes question for jury or for court, as to municipality’s liability, 119 A.L.R. 161, at 162:

“ ‘***a municipality cannot be expected to maintain the surface of its sidewalks free from all inequalities and from every possible obstruction to mere convenient travel, and slight inequalities or depressions or differences in grade, or a slight deviation from the original level of a walk due to the action of frost in the winter or spring, and other immaterial obstructions or trivial defects which are not naturally dangerous, will not make a municipality liable for injuries occasioned thereby.’ ”

Whether this so-called Kimball rule might be abandoned or revised on another day, we decline to do so within the context of this case. We need not disturb the basic rule in order to reverse the Court of Appeals here in that we determine that this case may be reasonably differentiated from Kimball and its progeny which dealt only with a difference in the elevation of slabs of a sidewalk, and conclude that jury questions are reasonably raised here, and that all the attendant circumstances should be considered in determining liability for defects in the public walkway occasioning the injuries.

It is our determination that the circumstances surrounding the excavation occasioning Mrs. Cash’s fall do not make that defect insubstantial as a matter of law. The circumstances found here may be reasonably distinguished from the cases establishing the general rule of insubstantialness as found in Kimball and other cited cases. Here, the circumstances presented a situation upon which reasonable minds could differ as to whether the crosswalk was reasonably safe for pedestrians in the usual mode of travel. There are ample circumstances presented here to cause reasonable minds to differ as to the existence of a certain danger for pedestrian travel of such crosswalk, so we conclude that the trial court properly left the question of negligence and nuisance to the jury. Two trial judges, at different times, both concluded that the facts permitted reasonable minds to differ on the question of substantiality of the defect. In accord with this belief, the motions for summary judgment, directed verdict, and judgment notwithstanding the verdict were overruled in turn.

We believe that the defect as found in this crosswalk at a busy downtown intersection of one of the state’s largest cities necessitates a different stance on what the legal significance of such a defect should be. A pedestrian who approaches such an intersection necessarily has his attention diverted by traffic signal lights, by surrounding vehicular traffic, and by other pedestrian traffic along the same walkway. These conditions would tend to increase the danger of such a defect in this location. The trial court correctly left to the jury the factual issue of Mrs. Cash’s reasonable anticipation of these conditions.

Further, the time of day during which Mrs. Cash encountered the defect would reasonably increase the difficulties of approaching such a defect. She tripped in the depression shortly after 11:30 a.m., in the midst of a lunch hour crowd. The many pedestrians which necessarily passed through this crosswalk would likely obstruct other pedestrians’ views of this depression. Again, the reasonable anticipation of Mrs. Cash of this aggravating condition was an issue properly left to the jury.

Furthermore, the depression in the present cause was 12 to 14 inches wide and traversed at least three feet of the crosswalk. Such a depression in a crosswalk can hardly be called trivial as a matter of law, even though somewhat less than two inches in depth.

The jury had evidence upon which to base their determination as to whether the defect constituted negligence. Likewise, the court had evidence upon which to base its consideration and conclusion that reasonable minds could differ upon all issues presented.

When the evidence is viewed most favorably to the plaintiff, it supports the conclusion that reasonable minds could differ as to the defendants’ negligence. In light of all the circumstances, the Court of Appeals erred in reversing the judgment of the Court of Common Pleas in this action.

Based on all the foregoing, we hold that where the evidence is viewed most favorably to the plaintiff, it supports the conclusion as reached by the trial court, that reasonable minds might differ as to the substantiality of this defect in light of all the surrounding circumstances of the matter.

II.

As to the issue of the negligence of the plaintiff in not keeping a proper lookout under all the circumstances, and thence falling when she stepped into the depression in the crosswalk, the trial court did not find Mrs. Cash negligent as a matter of law. The trial court properly submitted this question to the jury as to whether walking with the crowd in the manner she did was unreasonable under all the circumstances..

The defendants argue that Mrs. Cash was contributorily negligent for following the crowd too closely and failing to notice the defect in the street. It is uncontroverted that Mrs. Cash did not see the defect before tripping.

The facts established that pedestrian traffic was quite heavy at the intersection of Fifth and Vine Streets, that the plaintiff was behind three rows of pedestrians and directly behind a row of four men taller than her, that she had not seen the depression, and that she looked up and down as she crossed the street.

Reflecting on a pedestrian’s duty, this court, in Grossnickle v. Germantown (1965), 3 Ohio St. 2d 96, held in paragraph two of the syllabus:

“A pedestrian using a public sidewalk is under a duty to use care reasonably proportioned to the danger likely to be encountered but is not, as a matter of law, required to look constantly downward * * *. ”

The court further held that where a defect is unseen by a plaintiff which results in injury, an issue is presented for the jury as to whether the plaintiff exercised that concern for his own safety which an ordinarily prudent person would employ under similar circumstances. Thus, the affirmative defense of contributory negligence was specifically held to be an issue for the jury. Grossnickle, at 103.

Additionally, this court, in Griffin, supra, stated, at 238, as follows:

“A pedestrian is required to use his senses to avoid injury while walking on a sidewalk, but this does not mean that he is required as a matter of law to keep his eyes upon the sidewalk at all times. It may be necessary to keep a lookout for traffic and other pedestrians to avoid collision.”

We hold that the law of Grossnickle and Griffin is applicable here, and whether Mrs. Cash should have been maintaining more distance between herself and the other pedestrians, whether she was under the circumstances paying due heed to where she was stepping, and other questions as to whether she was negligent in the manner in which she was walking, were all questions for the jury in this cause.

The well established rule in regard to contributory negligence is that where reasonable minds may reach different conclusions upon any question of fact, such question of fact is for the jury. Hamden Lodge No. 517 v. Ohio Fuel Gas Co. (1934), 127 Ohio St. 469.

It is clear that reasonable minds could, and did in fact, differ as to whether Mrs. Cash was contributorily negligent. Therefore, the issue was properly left to the jury by the trial court, and the Court of Appeals erred in reversing that decision.

Based on all the foregoing, the judgment of the Court of Appeals is reversed.

Judgment reversed.

Celebrezze, C. J., W. Brown, Locher and C. Brown, JJ., concur. Potter and Whiteside, JJ., concur in the judgment and in the syllabus in part. Potter, J., of the Sixth Appellate District, sitting for P. Brown, J. Whiteside, J., of the Tenth Appellate District, sitting for Sweeney, J.

1 The variation in heights in adjacent sections of sidewalk in Kimball was one-half to three-fourths of an inch. In later cases, where the court held the defect to be inconsequential, the variations ranged up to two inches.

2 See dissenting opinions in Helms, supra; dissent in Harris v. Detroit (1962), 367 Mich. 526, 117 N.W. 2d 32; Beach v. Des Moines (1947), 238 Iowa 312, 26 N.W. 2d 81; Parker v. Denver (1953), 128 Colo. 355, 262 P. 2d 553; Ray v. Salt Lake City (1937), 92 Utah 412, 69 P. 2d 256; Loughran v. New York (1948), 298 N.Y. 320, 83 N.E. 2d 136; see, also, 24 Univ. of Pitts. L. Rev. 665, 667, and 30 Univ. of Cinn. L. Rev. 539; 119 A.L.R. 161.

3 Smith v. United Properties, Inc. [and Schilliger v. Graceland Shoppers Mart, Inc.] (1965), 2 Ohio St. 2d 310, was decided by a 4 to 3 vote, with a visiting judge, Judge Corrigan, then of the Court of Appeals for Cuyahoga County. In Helms v. American Legion (1966), 5 Ohio St. 2d 60, with the regularly constituted court, Judge Zimmerman wrote the majority opinion.