O'Connor v. Kroger Co.
2017 Ohio 1077
| Ohio Ct. App. | 2017Background
- On July 20, 2011, Beulah O’Connor tripped on an uneven sidewalk outside a Kroger store and injured herself; husband later photographed the slab variation and estimated it at 1.5 inches.
- O’Connor was walking in daylight, looking straight ahead toward the store entrance on a dry, sunny day and testified nothing obstructed her view.
- Plaintiffs sued Kroger for negligence; Kroger moved for summary judgment arguing the defect was open and obvious.
- The trial court granted summary judgment for Kroger, concluding the 1.5-inch height differential was an open and obvious, commonly encountered condition.
- Plaintiffs argued (1) the defect was latent/not open and obvious given attendant circumstances (no shadow, black caulking, newer construction) and (2) the trial court failed to consider their opposition memorandum; both claims were rejected on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the sidewalk height variation was an open and obvious danger as a matter of law | O’Connor: attendant circumstances (time of day, caulking, new construction) made the defect not reasonably observable | Kroger: 1.5-inch differential is commonly encountered and would be observed by a reasonable person | Court: The 1.5-inch variation was open and obvious as a matter of law; summary judgment affirmed |
| Whether Kroger had a duty to warn or inspect regarding the sidewalk condition | O’Connor: Kroger breached duty by not warning or inspecting latent danger | Kroger: no duty to protect against open and obvious danger | Court: No duty where danger is open and obvious; Kroger entitled to judgment |
| Whether plaintiffs overcame the presumption that <2-inch variations are not negligence | O’Connor: attendant circumstances create a genuine issue of material fact | Kroger: no admissible evidence of attendant circumstances that alters the rule | Court: Attendant circumstances did not make the condition unreasonably dangerous; presumption stands |
| Whether the trial court’s failure to consider plaintiffs’ memorandum prejudiced them | O’Connor: court failed to consider their opposition, depriving merits review | Kroger: procedural defect; court correctly granted summary judgment | Court: Plaintiffs failed to show prejudice or merit on Civ.R. 60(B) relief; second assignment of error not well-taken |
Key Cases Cited
- Menifee v. Ohio Welding Products, Inc., 15 Ohio St.3d 75 (establishes duty/breach/injury elements for negligence)
- Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120 (business owner duty; no duty to protect against open and obvious dangers)
- Light v. Ohio Univ., 28 Ohio St.3d 66 (business invitee duty to maintain safe premises)
- Helms v. Am. Legion, 5 Ohio St.2d 60 (court rule: <2-inch sidewalk height variation gives rise to rebuttable presumption against negligence)