Dubenion v. DDR Corp.
2016 Ohio 8128
| Ohio Ct. App. | 2016Background
- On July 13, 2012, 80-year-old Laverne Dubenion tripped on a protruding stone paver while walking on a short paved walkway leading to Kittle's Home Furnishing Center in Columbus, Ohio; plaintiffs sued for negligence and loss of consortium.
- Plaintiffs alleged multiple raised pavers and estimated the height differential at about one-half inch; defendants moved for summary judgment.
- Defendants argued the defect was a trivial imperfection (invoking the two-inch rule), the danger was open and obvious, and defendants owed no maintenance duty under their lease.
- Trial court granted summary judgment for defendants, finding the height differential was under two inches, no attendant circumstances existed to defeat the two-inch rule, and certain affidavit/photo evidence was inadmissible.
- Plaintiffs appealed, raising (1) error in applying the two-inch rule and (2) that reasonable minds could differ about attendant circumstances preventing summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the elevation difference exceeded two inches | Dubenion contends evidence (affidavit/photos) shows >2" differential | Defendants show deposition testimony indicating ~½" difference; photos unauthenticated | Court: No competent evidence >2"; two-inch rule applies |
| Whether attendant circumstances negate the two-inch rule | Dubenion argues traffic, hedges, and a sharp corner distracted attention | Defendants assert no evidence of any such distractions in admissible record | Court: No attendant circumstances proven; two-inch rule not negated |
| Whether defendants owed a duty to protect from trivial defect | Dubenion argues duty exists if attendant circumstances present | Defendants rely on common-law rule that trivial defects (<2") are nonactionable absent attendant circumstances | Court: No duty as matter of law under two-inch rule given facts |
| Whether affidavit/photos create genuine issue of fact | Dubenion relies on post-deposition affidavit and photos to contradict deposition | Defendants challenge affidavit under Byrd and photos as unauthenticated and unmeasured | Court: Byrd bars contradictory affidavit; photos insufficient; evidence disregarded |
Key Cases Cited
- Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203 (1985) (landowner ordinarily owes invitee duty of ordinary care but not liable for trivial defects)
- Kimball v. Cincinnati, 160 Ohio St. 370 (1953) (initial formulation of de minimis sidewalk defect rule)
- Helms v. American Legion, Inc., 5 Ohio St.2d 60 (1966) (two-inch rule applied to private premises)
- Cash v. Cincinnati, 66 Ohio St.2d 319 (1981) (height differences ≤ two inches are insubstantial as matter of law; attendant circumstances may negate rule)
- Byrd v. Smith, 110 Ohio St.3d 24 (2006) (affidavits that contradict prior deposition testimony may not create genuine issue of material fact)
- Shump v. First Continental-Robinwood Assocs., 71 Ohio St.3d 414 (1994) (entrance status (invitee) defines scope of duty)
- Stockhauser v. Archdiocese of Cincinnati, 97 Ohio App.3d 29 (1994) (attendant circumstances must significantly enhance danger and contribute to fall)