2020 Ohio 2722
Ohio Ct. App.2020Background
- On Sept. 27, 2016, Kelly Donnelly tripped on a damaged public sidewalk on Front Street abutting Baldwin Wallace University and alleged a height differential >2 inches causing permanent injuries. She originally sued both the City of Berea and Baldwin Wallace; claims against Berea were later dismissed.
- Baldwin Wallace’s buildings-and-grounds director testified BW inspects sidewalks seasonally and had a contractor repair a nearby segment in May 2016 but had no work orders or complaints for the exact spot where Donnelly fell.
- BW moved for summary judgment arguing it owed no duty for defects in a public sidewalk (municipality controls sidewalks) and that the vertical deviation was less than two inches; it submitted an architect’s affidavit estimating the defect at ~1.5 inches.
- Donnelly submitted photographs and affidavits; an expert affidavit claiming >3 inches (Donohoe) was struck as untimely and portions of Donnelly’s affidavit were struck as inconsistent with her deposition.
- The trial court granted summary judgment for BW; the court of appeals affirmed, holding Eichorn’s rule bars liability by abutting owners absent one of three exceptions (ordinance/notice, affirmative act, private benefit) and none applied; the factual dispute about the height was therefore immaterial (and, alternatively, unresolved in Donnelly’s favor given the stricken evidence).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BW owed a duty under the sidewalk-ordinance/notice exception | Berea Ordinance 921.06 imposes duty on abutting owners; BW had actual notice (permit/records gap) | Ordinance does not create a private duty absent municipal notice; Berea gave no notice to BW | No duty — ordinance exception not met because municipality did not notify BW |
| Whether BW ‘‘created or negligently maintained’’ the defect (affirmative-act exception) | BW’s maintenance system was haphazard; lack of records shows negligent maintenance | No affirmative act created the defect; ordinary wear/tear and routine inspections do not suffice | Exception not satisfied — no evidence BW affirmatively created the defect |
| Whether BW derived a private use or benefit from the defect | BW benefited by using temporary fixes and delaying permanent repairs | No evidence the defect provided any private use or benefit to BW | Exception not met — no private benefit shown |
| Whether a genuine factual dispute exists about the height (>2") making the defect actionable | Photographs and expert (Donohoe) show >3" | Architect (Kraly) opined ~1.5"; Donohoe affidavit was stricken as untimely | Moot as to BW’s liability (no duty); alternatively, no admissible evidence rebutted the <2" showing, so no material factual dispute |
Key Cases Cited
- Eichorn v. Lustig’s, 161 Ohio St. 11, 117 N.E.2d 436 (Ohio 1954) (municipality, not abutting owner, generally controls and owes duty to maintain public sidewalks)
- Lopatkovich v. Tiffin, 28 Ohio St.3d 204, 503 N.E.2d 154 (Ohio 1986) (sidewalk snow/repair ordinances do not create private right of action absent municipal notice)
- Cash v. Cincinnati, 66 Ohio St.2d 319, 421 N.E.2d 1275 (Ohio 1981) (attendant circumstances can rebut the two-inch rule and render a minor defect substantial)
- Stockhauser v. Archdiocese of Cincinnati, 97 Ohio App.3d 29, 646 N.E.2d 198 (Ohio Ct. App. 1994) (explaining the ‘‘attendant circumstances’’ standard for treating minor sidewalk defects as substantial)