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Dunkelberger v. Hay6/21/2005
{ } Plaintiffs-appellants, Diane J. and Richard Dunkelberger, appeal from a June 2004 judgment by the Franklin County Court of Common Pleas, upon a jury verdict rendered in favor of defendants-appellees, William T. and Natalie Hay, in this slip-and-fall personal injury action. For the reasons stated below, we affirm.
{ } In the evening hours of March 11, 1998, Mrs. Dunkelberger, while walking a dog on the sidewalk through her Groveport neighborhood, came to appellees' driveway and had to walk around parked cars that were blocking the sidewalk. As Mrs. Dunkelberger walked across the apron of the driveway, she encountered an expansion joint between concrete slabs, and she allegedly lost her footing and injured her right ankle.
{ } In September 2002, appellants initiated this personal injury action asserting that appellees were negligent in parking vehicles over the sidewalk and in maintaining a known defective condition. Appellants additionally charged that appellees were negligent per se for parking vehicles over the sidewalk in violation of a local ordinance.
{ } The trial court entertained appellants' motion for partial summary judgment and appellees' motion for summary judgment. In its December 2003 decision on these motions:
{ } 1. The court partially granted appellants' motion on the basis that, unless it could be shown that the vehicle blocking the sidewalk was there for less than one hour, appellees were negligent per se for blocking the drive in violation of the relevant Groveport ordinance. Thus, the court concluded that genuine issues of fact remained as to the purpose of the vehicle's presence and the length of time it was there. The court also found that issues of fact remained regarding whether appellees' alleged negligence proximately caused Mrs. Dunkelberger's injuries.
{ } 2. The court also partially granted appellees' motion for summary judgment on the issue of whether appellees maintained a known defective condition on their property. The court stated:
* * * Even construing the evidence most strongly in Plaintiff's favor, reasonable minds can reach but one conclusion (1) that any slight unevenness in the driveway concrete was not so great as to constitute a "defective condition" sufficient to give rise to a duty to repair or warn, and (2) the Hays had no knowledge of any such "defective condition." The Hays, as the owners or occupiers of the property, had a limited common law duty to licensees such as plaintiff to refrain from willful and wanton conduct. Parking one's car across a sidewalk does not rise to the level of recklessness that could constitute "willful and wanton" conduct. Therefore, judgment is rendered in favor of the Hays on the issue of whether they failed to satisfy their common law duties to Plaintiff as owners and occupiers of the property.
The Defendants' summary judgment motions are otherwise denied. Genuine issues of material fact exist as to (1) whether the Hays were negligent per se, and (2) whether the Hays' alleged negligence proximately caused Plaintiff's injuries.
{ } The matter proceeded to trial, during which appellees presented evidence of Mrs. Dunkelberger's other injury-causing accidents and related lawsuits, additionally commenting about these incidents and lawsuits during closing argument. As detailed below, the trial court admitted much of this evidence, but cautioned the jury that it could consider this evidence only in relation to its connection to the damages claimed in the present action. The court also denied appellees' motions for directed verdict at both the conclusion of appellants' case and at the close of evidence, declaring that the neglige
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