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Tomplin v. National City Corp.12/10/2004
nt entry provides little guidance as to what theory it relied upon in entering summary judgment in favor of appellees. However, it is well-settled in Ohio that, as a business invitee, appellant was owed a duty by the Bank to maintain the premises in a reasonably safe condition and to warn her of unreasonably dangerous latent conditions. A store owner's liability for failure to protect a patron from injury occurring on the premises relies upon the store owner's superior knowledge of the specific condition. Where the defect is open and obvious, the store owner owes a business invitee no duty. An open and obvious danger is itself a warning and the store owner "may reasonably expect that persons entering the premises will discover those dangers and take appropriate measures to protect themselves."
{ } In the instant case, appellant argues the defect in the floor was hidden and that appellees had "superior knowledge" that the defect existed and, thus, had a duty to warn of the defect and failed to do so. Appellees contend that the defect was so minor or trivial as a matter of law as to negate any duty on behalf of appellees to appellant.
{ } Beginning with its decision in Kimball v. Cincinnati, the Supreme Court of Ohio held that slight defects in a public sidewalk do not constitute sufficient grounds upon which to impose liability on a municipality. The court later extended the Kimball rule to privately owned premises. In Helms, the court held that no liability would be incurred to the owner or occupier of private premises for minor imperfections that are commonly encountered and are not unreasonably dangerous. As the case law evolved, so did the development of what was known as the "two-inch rule." In those cases, it was held that a difference in elevation of two inches or less was insubstantial as a matter of law and did not present a jury question on the issue of negligence.
{ } In Cash v. Cincinnati the Supreme Court of Ohio clarified the "two-inch rule," stating that courts must also consider any attendant circumstances in determining whether liability exists for trivial defects. In other words, the holding in Cash established a rebuttable presumption that a height difference of two inches or less is insubstantial as a matter of law and that the presumption may be rebutted by showing attendant circumstances sufficient to render the defect substantial.
{ } Attendant circumstances have been defined as "'any distraction that would come to the attention of a pedestrian in the same circumstances and reduce the degree of care an ordinary person would exercise at the time.'"
{ } In the case sub judice, appellant does not address the trivial imperfection doctrine or set forth any attendant circumstances to rebut the presumption but, rather, argues that the difference in elevation was hidden by the carpet and, because the defect was hidden, the Bank had a duty to warn her of the defect regardless of its size. Appellees contend the evidence demonstrates that the defect was less than two inches in size and, thus, appellant must rebut the presumption of it being insubstantial as a matter of law through establishing attendant circumstances.
{ } This case differs from the trivial imperfection line of cases in that the defect itself was hidden. In her deposition testimony, appellant stated that she thought the elevation difference between the tiled floor and the underfloor "wasn't all that much." When questioned whether she thought it was an inch she responded it "could be." She also testified that she could feel a difference in elevation underneath her feet as she stood on the carpet and that she did not trip on anything but lost her balance at the area w
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