COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78493 KIMBERLY BATES, ET AL., ACCELERATED DOCKET Plaintiffs-appellants JOURNAL ENTRY vs. AND ASSOCIATED ESTATES MANAGEMENT CORPORATION, OPINION Defendant-appellee DATE OF ANNOUNCEMENT OF DECISION: MAY 10, 2001 CHARACTER OF PROCEEDINGS: Civil appeal from Common Pleas Court, Case No. CV-391696 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiffs-appellants: DANIEL W. TAYLOR, ESQ. 2200 Illuminating Building 55 Public Square Cleveland, Ohio 44113-1901 For defendant-appellee: ALAN B. GLASSMAN, ESQ. 14650 Detroit Avenue Suite 450 Lakewood, Ohio 44107-9946 -2- KARPINSKI, A.J.: Plaintiffs-appellants Kimberly and Arthur Bates appeal in this accelerated appeal from an order of the trial court granting summary judgment in favor of defendant-appellee Associated Estates Realty Corp. in this personal injury slip and fall action. We affirm. This appeal is accelerated because the issue is simple and the briefs short. For cases on the accelerated docket, Rule 11.1 of both the Appellate and Local Appellate Rules permit this court to draw its conclusions and state its reasons briefly, rather than provide a comprehensive analysis. Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158. The Bateses filed their personal injury and loss of consortium complaint in the trial court on September 17, 1999. The claim arose from Kimberly Bates' fall on a walkway leading from the parking lot to the Euclid Medical Plaza building. Kimberly Bates was accompanied by two children and entered the Plaza without incident. As the trio was leaving, Bates was distracted by the children and fell on an imperfection in the expansion joint between concrete slabs of pavement. On April 28, 2000, following discovery, Associated Estates filed a motion for summary judgment. The motion was supported, inter alia, by deposition testimony of Kimberly Bates and a photograph of the pavement in the area where she fell. Bates had traversed the walkway on numerous occasions in the past seven years before the incident. She walked on the same walkway six to eight -3- times during the year before her fall, the last time was only one to two months earlier. She circled a minor defect in the pavement on a photograph of the area where she fell upon leaving the premises. The circled area reveals two concrete slabs which do not meet in a level plane. Following two extensions of time, the Bateses filed a brief in opposition to summary judgment. The brief in opposition was supported by testimony from a former manager of the property. The manager stated he was aware of the condition of the concrete slabs on the walkway. Measurements revealed that there was as much as a two to three inch difference in height at the seam between the concrete slabs where Bates testified that she fell. The property manager knew of no prior falls in this area. On July 27, 2000, the trial court granted Associated Estates' motion for summary judgment. The Bateses timely filed this accelerated appeal. Their brief on appeal does not contain an assignment of error as required by App.R. 16(A)(3). The brief essentially argues, however, that the trial court improperly granted summary judgment against them because the defect in the pavement was not open and obvious or known by her. Associated Estates responds by arguing that the defect was both open and obvious and so minor that it was not unreasonably dangerous. This court has issued numerous opinions summarizing the law governing summary judgment on claims by pedestrians who fall on minor defects in pavement and will not repeat them in this -4- accelerated case. Kimberly Bates admitted she knew the general condition of the pavement, had traversed the area where she fell many times previously, and was taking her usual route when she fell. The evidence indicates that the defect in the pavement was sufficiently open and obvious to warrant summary judgment against her. E.g., Sheppard v. Kap Realty, dba Euclid Green Plaza (Aug. 12, 1999), Cuyahoga App. No. 75860, unreported. Moreover, the photographs and testimony reveal that the defect in the pavement in the case at bar was minor and, therefore, not unreasonably dangerous. See e.g., Hope v. Kaufmann's etc. (May 27, 1999), Cuyahoga App. No. 74163, unreported; and Seifert v. Great Northern Shopping Center (Nov. 5, 1998), Cuyahoga App. No. 74439, unreported. The space between the slabs of pavement in the case at bar was at most two to three inches, whereas the variation was four inches in Seifert, supra. Unlike the plaintiffs in these other cases, Kimberly Bates was taking her usual route, which she had traversed without incident many times previously. Under the circumstances, the Bateses have failed to show that the trial court erred by granting judgment to defendant. Accordingly, the argument in their brief on appeal is overruled. Judgment affirmed. -5- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. KENNETH A. ROCCO, J., CONCURS; JAMES J. SWEENEY, J., DISSENTS (See Dissenting Opinion). DIANE KARPINSKI ADMINISTRATIVE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78493 KIMBERLY BATES, ET AL. : : Plaintiffs-appellants : : D I S S E N T I N G -vs- : : O P I N I O N ASSOCIATED ESTATES MANAGEMENT : CORPORATION : : Defendant-appellee : DATE: MAY 10, 2001 JAMES J. SWEENEY, J., DISSENTING: I respectfully dissent from the conclusion reached by the majority in this case. The record reveals Ms. Bates drove her daughter and nephew to Euclid Medical Plaza for her daughter's appointment. Afterwards, on the way back to her car, the children were lagging behind. As she turned and told them to catch up, she stepped into a two to three inch space in the pavement, twisted her foot, fell and broke her left arm. The record further reveals Ms. Bates and David McVay, the property manager, knew the parking lot was in a state of disrepair. However, Ms. Bates did not know a hazard existed where she stepped. The majority concluded that a two to three inch space in the pavement constituted an open and obvious condition, and the defect was minor and not unreasonably dangerous because Ms. Bates had traversed the area once that day and numerous times in the past without incident. -2- I believe summary judgment should be granted using the open and obvious doctrine when Ms. Bates' comparative negligence in disregarding the defect is greater than that of Euclid Medical Plaza in creating the hazard. Ms. Bates is required to use care; however, she is not required to constantly look downward. See Grossnickle v. Germantown (1965), 3 Ohio St.2d 96. In Texler v. D.O. Summers Cleaners & Shirt Laundry Co. (1998), 81 Ohio St.3d 677, the court stated: In order to establish actionable negligence, the plaintiff must show the existence of a duty, a breach of the duty, and an injury proximately resulting therefrom. ***. (Citations omitted.) * * * More recently, this court has continued to hold that the question of whether the contributory negligence of a plaintiff is the proximate cause of the injury is an issue for the jury to decide pursuant to the modern comparative negligence provisions of R.C. 2315.19(A)(1). ***. (Citations omitted.) Further, Burks v. Marc Glassman, Inc. dba Garfield Furniture, (Nov. 16, 2000) Cuyahoga App. No. 76676, unreported, involved a personal injury action arising when headboards fell on Ms. Burks causing her to fall and break her hip, and this court stated: In recent years, the Ohio Supreme Court has limited the applicability of the open- and-obvious doctrine. ***. As the Supreme Court has noted, the open and obvious doctrine has not been uniformly applied in Ohio. *** Further, since Ohio enacted the comparative negligence statute, R.C. 2315.19, courts must carefully distinguish between a defendant's duty of care and a plaintiff's contributory negligence. ***. (Citations omitted.) * * * -3- We refuse to apply the open and obvious doctrine to completely absolve appellee of any duty in this case. Like the Supreme Court in Texler, we find that the determinative issues are whether appellant was negligent in failing to protect herself from the sliding stacks of headboards and, if so, whether this negligence outweighed any negligence on the part of appellee. These issues are inappropriate for summary judgment and, therefore, must be remanded for determination by a jury. In the instant case, both parties were aware the parking lot had fallen into a state of disrepair, and an issue of fact remains as to which party was more negligent. This issue cannot be properly decided on summary judgment, but should be decided by a jury. For these reasons, I dissent from the views expressed in the majority opinion. .