Feorene v. Barney
2012 Ohio 3461
Ohio Ct. App.2012Background
- Feorene tripped on a sunken sidewalk slab adjacent to Barney's office and a city fire station; the two-inch elevation created a trip hazard.
- Barney claimed no knowledge of the defect, no city citation, and no ownership/control over the sidewalk portion where the accident occurred.
- Barney relied on a boundary survey showing the deviated sidewalk was on the fire department property, not his, and Baran stated office staff were unaware of the defect.
- Feorene opposed with an architect’s preliminary report linking the sidewalk defect to her injuries; the trial court granted summary judgment citing lack of proof that the defect was on Barney's property.
- The court recognized the local ordinance imposing responsibility on abutting property owners but narrowed liability due to lack of notice and absence of creation/maintenance of the defect by Barney; the judgment was affirmed.
- The appellate court addressed duty rules for open and obvious dangers, exceptions to the general no-liability rule for abutting landowners, and the impact of municipal ordinances on liability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Barney owe a duty to Feorene given an open and obvious sidewalk defect? | Feorene argues Barney had a duty to maintain the adjoining sidewalk to prevent injury. | Barney contends the defect was on city property and not within his control, with no duty arising. | No; open-and-obvious defect absolves further duty absent applicable exception. |
| Do the statutory/ordinance exceptions create liability for Barney? | Feorene relies on ordinance imposing repair duty on abutting owners. | Barney had no notice and the defect was not on his property per the survey; ordinance cannot create liability absent notice. | First exception inapplicable; ordinance cannot impose liability here due to lack of notice. |
| Was there a genuine issue of material fact regarding Barney's creation or maintenance of the defect? | Feorene argued Barney negligently maintained the sidewalk. | Record shows Barney did not create the defect and had no knowledge of it. | No genuine issue; Feorene failed to show Barney created or negligently maintained the defect. |
| Is the third exception (private use or benefit) applicable? | Feorene alleged none of Barney’s privatized use benefited from the defect. | Not applicable; no private use or benefit alleged. | Inapplicable; third exception does not apply. |
Key Cases Cited
- Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79 (2003-Ohio-2573) (open-and-obvious danger rule and duty limitations for landowners)
- Hughes v. Kozak, 8th Dist. No. 69007 (1996 WL 75707) (ordinance-based liability with municipal notice considerations)
- Gordon v. Dziak, 8th Dist. No. 88882 (2008-Ohio-570) (two-inch rule for sidewalk elevation differences)
- Lydic v. Lowe’s Cos., Inc., 2002-Ohio-5001 (10th Dist.) (attendant circumstances may render insubstantial defects actionable)
- Backus v. Giant Eagle, Inc., 115 Ohio App.3d 155 (7th Dist. 1996) (pedestrian duty to look where walking; open-and-obvious defects)