Cash v. City of Cincinnati

• Citation: 66 Ohio St.2d 319,20 O.O.3d 300,421 N.E.2d 1275
• Decision Date: 10 June 1981
• Docket Number: No. 80-929,80-929
• Parties: , 20 O.O.3d 300 CASH, Appellant, v. CITY OF CINCINNATI et al., Appellees.
• Court: Ohio Supreme Court

Page 319

66 Ohio St.2d 319

421 N.E.2d 1275, 20 O.O.3d 300

CASH, Appellant, v. CITY OF CINCINNATI et al., Appellees.

No. 80-929.

Supreme Court of Ohio.

June 10, 1981.

Syllabus by the Court

1. Reasonable minds could differ as to whether a 12 to 14 inch wide, one and one-half inch deep, excavation extending into the width of a crosswalk in a heavily pedestrian-traveled downtown section of the city was so substantial that such defect rendered the crosswalk unsafe for travel in the usual and ordinary mode. (Kimball v. Cincinnati, 160 Ohio St. 370, 116 N.E.2d 708, distinguished.)

2. In such a case when reasonable minds might differ as to whether a defect in a crosswalk is so trivial as to relieve liability, a trial court properly leaves that issue to the jury, and all the attendant circumstances must be considered in determining whether such a crosswalk is reasonably safe for use by pedestrians.

This cause seeks to have this court review and redefine its former pronouncements of what, as a matter of law, would not constitute a jury issue concerning an alleged violation of a municipality's liability to maintain its streets and sidewalks pursuant to R.C. 723.01, formerly G.C. 3714.

The facts of this negligence action filed by Catherine Cash, plaintiff-appellant, are that the defendant-appellee city of Cincinnati contracted with defendant-appellee Langenheim & Thomson Company to erect new electric lighting poles at the intersection of Fifth and Vine Streets in Cincinnati. In performing this contract, Langenheim subcontracted with defendant-appellee Wray Electric Contracting, Inc., to perform the electrical work, including the installation of an electrical conduit beneath the surface of the street. Wray was to backfill the excavation necessary for this installation with concrete, and Langenheim was obligated then to resurface that part of the street with asphalt.

On May 24, 1976, Wray had completed excavation of the street, installation of the conduit, and had backfilled the excavation with concrete up to approximately one and one-half inches below the surface of the street (with possible variance of up to one-quarter of an inch), but Langenheim had not yet filled and covered the remaining depression with asphalt. The depression in the pavement caused by the excavation was approximately 12 to 14 inches wide and one and one-half inches deep. This depression traversed at least three feet of the crosswalk.

On that day, the weather was dry and sunny, and there were no foreign objects on the surface of the street. Prior to her fall, Mrs. Cash waited for the pedestrian walk light. It was shortly after 11:30 a. m., and there were a number of people at that downtown intersection. There were about three rows of people between Mrs. Cash and the street, and this crowd obstructed her vision of much of the street in front of her. When the light changed she moved with the crowd, looking at the light and the street. As she approached the southwest corner of the intersection, from the northwest corner, she tripped in the previously described depression and sustained injuries. Mrs. Cash stated that prior to her fall, she could not see the depression because of the number of people in front of her.

Prior to trial, defendants' motions for summary judgment were overruled. At the close of plaintiff's case, and again at the close of all the evidence, defendants each moved for a directed verdict, and the motions were overruled. The jury returned a verdict against the defendants in the amount of $10,000. Defendants filed motions for judgment notwithstanding the verdict, which were overruled by the trial court.

Upon appeal, the Court of Appeals reversed the trial court on the basis that the trial court should have sustained the motions of defendants for directed verdict.

This matter is now before this court upon the allowance of a motion to certify the record.

Dennis A. Becker, Cincinnati, for appellant.

Richard A. Castellini, City Sol., Daniel J. Schlueter and Nancy H. Simmons, Cincinnati, for appellee city of Cincinnati.

McCaslin, Imbus & McCaslin and Philip J. Marsick, Cincinnati, for appellee Langenheim & Thomson Co. Rendigs, Fry, Kiely & Dennis and David W. Peck, Cincinnati, for appellee Wray Electric Contracting, Inc.

HOLMES, Justice.

I.

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, 116 N.E.2d 708, and other cases following, such as O'Brien v. Toledo (1957), 167 Ohio St. 35, 146 N.E.2d 122; Gallagher v. Toledo (1959), 168 Ohio St. 508, 156 N.E.2d 466; Buckley v. Portsmouth (1959), 168 Ohio St. 513, 156 N.E.2d 468; Amos v. Cleveland Heights (1959), 169 Ohio St. 367, 159 N.E.2d 895; Kindle v. Akron (1959), 169 Ohio St. 373, 159 N.E.2d 764.

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, 213 N.E.2d 734, 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, 116 N.E.2d 708, 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 insubstantiality 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, 123 N.E.2d 11, 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 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."

There was a strong dissent in Griffin, stating, at page 244, 123 N.E.2d 11, 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, 209 N.E.2d 142. 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...