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Tomplin v. National City Corp.12/10/2004
here the floor elevation differed.
{ } Georgeann Cornicelli, the Bank branch manager who was working on the day of the incident, testified at her deposition that there was "a slight variation" in the height of the tiled floor and the underfloor. She stated she thought it was "a quarter inch" without the carpet over it and "less than that" once Downie laid the carpet over it. Cornicelli also testified that the Bank had posted four or five signs around the Bank that day alerting customers of the renovations.
{ } Alex Downie, the independent contractor working on the flooring, testified in his deposition that the height of the tile was "three-eighths to half an inch." He also testified that he and his workers typically placed a carpet runner over the flooring in these instances to create a smoother transition between the tile and underfloor.
{ } The parties do not dispute the defect was ultimately one inch or less in height. Thus, appellant was required to show attendant circumstances creating a genuine issue of fact material to the appellees' negligence, in order to avoid summary judgment. The only attendant circumstance alluded to by appellant is the fact that the carpet was placed over the defect, hiding it from view.
{ } This court has previously held:
{ } "To render a minor defect substantial, attendant circumstances must not only be present, but must create a greater than ordinary, and thus substantial, risk of injury . The attendant circumstances must, taken together, divert the attention of the pedestrian, significantly enhance the danger of the defect, and contribute to the fall.
The totality of the circumstances of each case must be examined to determine if, as a whole, they create a substantial defect.,
{ } In determining the existence of attendant circumstances, courts have held that dim lighting alone was not sufficient to rise to the level of an attendant circumstance. As acknowledged by the Second District in Russell v. Creatif' Catering, Inc., if such were the case, liability could be extended to every homeowner or business owner for anyone who walks on their property at night. Thus, poor visibility due to dim lighting is insufficient, by itself, to rebut the presumption of an insubstantial defect.
{ } Similarly, appellant's contention that the carpet runner over the flooring created a hidden defect, which created a duty on behalf of the Bank toward appellant, is not supported by her deposition testimony. Appellant testified that the difference in elevation "wasn't that much" and, when prompted, it "could be" an inch. Appellant also acknowledged that she could feel the difference in flooring under the carpet before she fell, demonstrating that she was aware of its existence. Moreover, the carpet runner was placed in order to lessen the risk of any injuries to Bank patrons. Thus, appellant has not demonstrated that the existence of the carpet runner over the flooring, placed as an additional safety measure, rises to the level of an attendant circumstance, thereby creating a substantial defect. Moreover, to punish the Bank and independent contractor for taking measures to ensure customer safety runs counter to public policy.
{ } Therefore, based on the foregoing, we conclude the defect in the instant case was insubstantial as a matter of law and the trial court did not err in granting summary judgment in favor of the Bank.
{ } Appellant's first assignment of error is without merit.
{ } The second assignment of error is:
{ } "The trial court erred to the prejudice of Plaintiff-Appellant in sustaining the motion for summary judgment filed by Def
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