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Jones v. H. & T. Enterprises6/23/1993
DICKINSON, Judge.
This is an appeal by a plaintiff in a personal injury action from a decision of the Summit County Court of Common Pleas. Plaintiff, a business invitee, was injured when she fell on some pieces of gravel on a walkway as she was leaving a craft store. The trial court granted motions for summary judgment filed by defendants and dismissed plaintiff's claim. In her appeal to this court, plaintiff has assigned three errors: (1) the trial court incorrectly found that the walkwason which she fell was not a stairway within the meaning of the Ohio Building Code; (2) the trial court incorrectly found as a matter of law that the premises upon which plaintiff was injured were not unreasonably dangerous in view of an affidavit of an engineer submitted by plaintiff that included his conclusion that the walkway was negligently designed; and (3) the trial court incorrectly held that plaintiff could not recover in the absence of evidence that defendants knew or should have known of the alleged unsafe condition of the walkway when plaintiff's claim was based on a theory of negligent design. Plaintiff's assignments of error are overruled and the decision of the court of common pleas is affirmed.
On April 27, 1991, plaintiff and her daughter visited a craft store, The Village Goose, near Hartville, Ohio. They parked in a gravel lot at the front of the store. The store is on a rise at a higher elevation than the gravel lot and a wooden stair at one side of the lot leads to the front entrance of the store. From the bottom of the wooden stair, a concrete walkway runs parallel to the lot and immediately adjacent to it. The lot itself is on a slight incline with the side on which the wooden stair is located being higher than the other side. To compensate for that incline, the concrete walkway has two risers built into it. There are wooden posts standing on end every few feet along the edge of the walkway adjacent to the parking lot. Those posts appear to be approximately three or four feet in height and are for the apparent purpose of preventing drivers from parking their cars so close that they overhang the walkway. The surface of the walkway is not flush with the surface of the adjoining parking lot; rather, the walkway appears to be an inch or two higher than the parking lot.
Plaintiff and her daughter parked at a location toward the side of the lot away from the wooden stair. In order to reach the stair and enter the store, they walked on the Concrete walkway, including stepping up both of the risers. After they had completed their business in the store, as they were returning to their car, plaintiff, as she stepped down from the riser closest to where their car was parked, slipped on some pieces of gravel on the walkway and fell to the ground. She was taken to Akron General Medical Center, hospitalized and treated for a fractured hip, a fractured left clavicle, and an injured back.
Plaintiff filed this action on December 2, 1991, against The Village Goose and H. & T. Enterprises, the owner of the property on which The Village Goose was located. Following discovery both defendants moved for summary judgment. On July 21, 1992, the trial court granted defendants' motion for summary judgment and dismissed plaintiff's complaint. The trial court's decision was based on alternative conclusions: (1) If the walkway was unreasonably dangerous, plaintiff presented no evidence that defendants knew or should have known of that unreasonable danger; and (2) the walkway, as a matter of law, was not unreasonably dangerous because "gravel on a sidewalk from an adjoining lot is both expected and commonly encountered." Plaintiff appealed that di
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