Summary
In Gallagher, "at the place of the accident the sidewalk was intersected by a driveway leading from a parking lot surface with loose gravel or stones.
Summary of this case from Smith v. United Properties, Inc.Opinion
No. 35528
Decided February 18, 1959.
Municipal corporations — Duty to keep sidewalks in repair and free from nuisance — Section 723.01, Revised Code — Variation of heights of concrete slabs of sidewalk — Loose gravel carried onto sidewalk by automobiles from parking lot — Defect not of substantial nature.
CERTIFIED by the Court of Appeals for Lucas County.
This action was brought to recover for personal injuries sustained by plaintiff while she was walking on a public sidewalk of the defendant city. She claims her injuries were the result of a fall caused by a defect in the sidewalk.
It appears from the record that at the place of the accident the sidewalk was intersected by a driveway leading from a parking lot surfaced with loose gravel or stones. Particles of the loose stone surface were carried onto the sidewalk by automobiles being driven from the parking lot. Plaintiff alleges in her amended petition that the sidewalk at the intersection of this driveway "was made uneven, slippery and hazardous for pedestrian use by reason of the deposit and accumulation of said stones." The testimony discloses that the accident occurred between 7:30 and 8 o'clock on a clear morning with good visibility; that one slab of the stone or concrete sidewalk had dropped down "an inch and a half or two" from the adjoining slab; and that as plaintiff stepped from the higher to the lower slab she stepped on the stones which threw her off balance, causing her to fall.
At the close of plaintiff's evidence, defendant's motion for a directed verdict was overruled, and defendant rested. The jury returned a verdict for plaintiff, on which judgment was entered.
The Court of Appeals found, on authority of O'Brien v. City of Toledo, 167 Ohio St. 35, 146 N.E.2d 122, that the verdict and judgment of the trial court were not supported by any substantial evidence and are therefore contrary to law, reversed the judgment of the trial court and entered final judgment for defendant, and finding further that the judgment agreed upon is in conflict with the judgment pronounced by the Court of Appeals for Hamilton County in the case of Stoffel v. City of Cincinnati, 87 Ohio App. 235, 93 N.E.2d 303, certified the record to this court for review and final determination.
Miss Lenore E. DeShetler, for appellant.
Mr. Charles T. Lawton, director of law, and Mr. Robert Dorrell, for appellee.
The defect complained of was not of such a substantial nature as to impose liability on the defendant municipality. The facts of this case bring it squarely within the rule laid down in Kimball v. City of Cincinnati, 160 Ohio St. 370, 116 N.E.2d 708, and O'Brien v. City of Toledo, supra. The judgment of the Court of Appeals is affirmed on authority of those cases, and final judgment is rendered for defendant.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, TAFT, MATTHIAS, BELL and HERBERT, JJ., concur.
It is obvious that much of the litigation and apparent confusion concerning a municipality's liability for defects in a sidewalk stems from an apparent inconsistency between the decisions of this court in Kimball v. City of Cincinnati, 160 Ohio St. 370, 116 N.E.2d 708, and O'Brien v. City of Toledo, 167 Ohio St. 35, 146 N.E.2d 122, and the decision and statements in the syllabus in Griffin v. City of Cincinnati, 162 Ohio St. 232, 123 N.E.2d 11, concerning differences in elevation between slabs of a sidewalk.
In the O'Brien case, this court unanimously followed the unanimous decision in the Kimball case holding, in effect, that, to impose liability on a municipality for a defect in a sidewalk, that defect must be a substantial and not a slight one. The defect alleged in the O'Brien case, consisting not only of a difference in elevation but also of a variation in the width of a crack and a considerable variation in its depth, was markedly more "substantial" than the "difference in the elevations of the slabs of one or two inches" claimed in the Griffin case. Yet, in the O'Brien case, this court unanimously chose to follow its ruling in the Kimball case, thus rejecting, in part at least, its divided decision in the Griffin case.
Therefore, to the extent that the decision in the Griffin case is inconsistent with the decision in the O'Brien case and with the decision agreed upon herein, we no longer consider the Griffin case as controlling.
TAFT, MATTHIAS and HERBERT, JJ., concur in the foregoing concurring opinion.