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Flower v. K-Mart Corp.12/4/1998
* France v. Parliament Park Townhomes (Apr. 27, 1994), Montgomery App. [No.] 14264, unreported, 1994 WL 151658. "The attendant circumstances must, taken together, divert the attention of the pedestrian, significantly enhance the danger of the defect, and contribute to the fall. * * * Both circumstances contributing to and those reducing the risk of the defect must be considered.' Stockhauser v. Archdiocese of Cincinnati (1994), 97 Ohio App.3d 117 29, 33-34, 646 N.E.2d 198, 201."
In this case, Flower offered evidence of "attendant circumstances" that raises a genuine issue of fact as to whether the particular defect here gives rise to liability on the part of K-Mart and McAny Realty. The pothole or defect in the pavement in this case was not located on a regular sidewalk or walkway, where one would have had a duty to be alert for such problems. K-Mart employees had erected a tent over the defective area, obscuring it from the view of persons walking in the parking lot. K-Mart had erected the structure for the purpose of attracting shoppers inside the tent to purchase gardening supplies. Finally, Flower was distracted by the eye-level garden display that had been created by K-Mart employees.
Based on these facts, we hold that reasonable minds can reach different conclusions concerning whether the pothole was an unreasonably unsafe condition that was foreseeable by K-Mart and McAny Realty, rendering them liable for injuries resulting from the defect. Accordingly, the judgment of the court of common pleas is reversed, and this cause is remanded for further proceedings consistent with this decision and law.
Judgment reversed and cause remanded.
HILDEBRANDT, P.J., GORMAN and MARIANNA BROWN BETTMAN, JJ., concur.
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