Callentine v. Mill Invests., 2017 Ohio 8634

Plaintiff Francis Callentine slipped and fell on November 9, 2012, stepping off a back porch at 118 E. First St., Uhrichsville; he alleged the fall was caused by an uneven joint between two concrete slabs.
The elevation difference measured less than two inches (photographs and affidavit attached to defendants’ summary-judgment motion).
Defendants Mill Investments, LLC and Michael Kitchen moved for summary judgment arguing the two-inch/trivial-defect rule and the open-and-obvious/step-in-the-dark doctrines bar recovery; Walsh was dismissed earlier by the trial court.
Key deposition testimony: plaintiff arrived in daylight but left after dark; he admitted he could have seen the defect if there had been sufficient light and that he was not distracted when he fell; tenants testified they had not complained to landlord about the sidewalk.
Trial court granted summary judgment for defendants, finding the defect was an insubstantial imperfection, the condition was open and obvious, and plaintiff’s decision to step into darkness constituted contributory negligence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether elevation <2 inches can support negligence	The <2" difference was still "substantial" under the circumstances and not a bright-line rule	A height difference ≤2" is trivial as a matter of law unless attendant circumstances elevate it	Held for defendants: defect <2" is insubstantial and not actionable absent attendant circumstances
Whether darkness/shadow makes hazard not open and obvious	The question is fact-specific; darkness may preclude summary judgment	The hazard was observable and plaintiff admitted he stepped from light into darkness without investigation (step-in-the-dark)	Held for defendants: condition was open and obvious; plaintiff contributorily negligent
Whether attendant circumstances exist to negate triviality/open-and-obvious	Plaintiff pointed to shadow/darkness and argued other circumstances could make issue factual	Defendants showed no evidence of attendant circumstances that diverted attention or enhanced danger; tenants did not complain; no proof how long defect existed	Held for defendants: no attendant circumstances proved; doctrines apply
Whether defendants had actual or constructive notice	Plaintiff argued Kitchen inspected and should have known of defect	Defendants showed no actual notice; plaintiff offered no evidence defect existed long enough or was discoverable to impute constructive notice	Held for defendants: no actual or constructive notice established

Kimball v. Cincinnati, 5 Ohio St.2d 60 (Ohio 1966) (height variations under two inches are slight defects barring liability as a matter of law)
Helms v. American Legion, 5 Ohio St.2d 60 (Ohio 1966) (reaffirming Kimball and applying the two-inch rule to private property)
Cash v. Cincinnati, 66 Ohio St.2d 319 (Ohio 1981) (two-inch rule clarified: defects ≤2" are insubstantial unless attendant circumstances make them unreasonably dangerous)
Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79 (Ohio 2003) (business owners owe no duty to warn of open and obvious dangers)
Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203 (Ohio 1985) (premises owner owes invitee ordinary care but need not warn of open and obvious dangers)
Sidle v. Humphrey, 13 Ohio St.2d 45 (Ohio 1968) (no duty to protect invitees from dangers so obvious they may be reasonably expected to discover)
Jeswald v. Hutt, 15 Ohio St.2d 224 (Ohio 1968) (principles underlying the step-in-the-dark doctrine)
Beebe v. Toledo, 168 Ohio St. 203 (Ohio 1958) (elements for constructive notice: discoverability, duration, and reasonable apprehension of danger)
Sikora v. Wenzel, 88 Ohio St.3d 493 (Ohio 2000) (landlord liability excused where landlord neither knew nor should have known of the factual circumstances causing a violation)