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Susan M. Allen, et al v. John A. Rankin

January 29, 2013

SUSAN M. ALLEN, ET AL., PLAINTIFFS-APPELLANTS,
v.
JOHN A. RANKIN, DBA TUSCAN TABLE RESTAURANT, ET AL., DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: McFarland, P.J.:

Cite as Allen v. Rankin,

DECISION AND JUDGMENT ENTRY

{¶1} Susan and Roderick Allen appeal the judgment of the Ross

County Court of Common Pleas, granting summary judgment to Defendant- Appellees John Rankin dba Tuscan Table Restaurant and Rankin Enterprises, LLC, Defendant- Appellees Melanio D. Acosta and Ofelia C. Acosta and Acosta Properties, LLC, and Defendant-Appellee City of Circleville. Having reviewed the record and the pertinent law, we affirm.

FACTS

{¶2} Appellant Susan M. Allen fell on a sidewalk in the City of Circleville on December 10, 2008. The sidewalk abutted 122 North Court Street, which was property owned by Acosta Properties LLC. John Rankin dba Tuscan Table Restaurant leased 122 North Court Street from the Acostas. The restaurant and a bank called the Savings Bank were both located on the same side of North Court Street.

{¶3} On the incident date, Appellant and her son had eaten lunch at Wendys, and she asked him to take her to the bank. She had no intention of entering the Tuscan Table Restaurant, although she had eaten there on previous occasions. Appellant's son parallel-parked on Court Street. Appellant testified on the date of the fall, she got out of her son's pickup truck on the passenger side and headed southbound toward the Savings Bank.

{¶4} As Appellant walked towards the bank, she encountered a street sign, a lamp post, and a tree with a metal grate around the base. When she fell, she was angled from the tree and her head was toward the front entrance of the Tuscan Table. Appellant broke her right wrist.

{¶5} Appellant denied problems seeing or any distractions as she walked. It was a cloudy day, but there was no ice or snow. She testified she had no problems with the lighting conditions. Before she fell, she was looking straight ahead, not looking down.

{¶6} In deposition, Appellant could not say whether she tripped over the grate or the raised portion of the sidewalk. She testified to the height of the raised portion of the sidewalk in contradictory terms. She first testified the raised concrete was "two inches or more." Then she said it "Might have been an inch and three-fourths. I don't know." She further testified "I would say it is an inch and three-fourths or more than two." Appellant went back a few weeks later and saw no changes to the area or the condition of the sidewalk. This time, she was either inside or standing next to a parked car and could see the raised concrete from some distance.

{¶7} Appellant Susan Allen later supplemented her deposition testimony with a sworn affidavit. She testified that she was distracted by the street lamp post, the sign post, and the tree. Specifically she stated in her affidavit that when she exited the truck passenger door, she was immediately confronted with the lamppost which prevented her from leaving the two-foot wide brick area abutting the curb in order to get to the wider area of the concrete sidewalk. After three to four feet, she still could not get inward to the sidewalk because she was obstructed by the sign post. After another four to five feet, she encountered the grate around the tree and then moved inward to the sidewalk. Appellant also noted in her affidavit that she was unable to detect a gradual incline in the concrete when the color and material all looked the same from above.

{¶8} Appellant Roderick Allen also testified in deposition that he was not sure what his wife tripped over, whether it was the concrete sidewalk or the grate. He testified he and his son went to measure the concrete sidewalk approximately 30 days after the fall. As far as he could tell, nothing had been altered or changed. In his opinion, the concrete was heaved up and his wife stepped into a space where she thought there was concrete but it was just a gap, east of the tree. He measured a line of raised concrete running north and south. He testified the concrete was two inches or less where he measured.

{¶9} Roderick Allen also supplemented his deposition testimony with a sworn affidavit. Essentially, Appellant stated that when he testified "two inches or less" in deposition, he thought the questioning attorney was referring to the other raised areas of the sidewalk.

{¶10} Appellants' Allen filed a complaint in negligence against John

A. Rankin dba Tuscan Table Restaurant, Rankin Enterprises LLC, Tuscan Table LLC, (hereinafter to be collectively referred to as "Rankin"), Melanio

D. Acosta, Ofelia C. Acosta, and Acosta Properties LLC, (hereinafter to be collectively referred to as "Acostas"), and the City of Circleville, (hereinafter "the City"), on December 7, 2010. *fn1 Appellant Susan Allen alleged permanent personal injuries, medical expenses past and future, and pain and suffering. Appellant Roderick Allen alleged loss of consortium and payment of medical expenses on behalf of his wife.

{¶11} In the complaint, Appellants did not allege either Rankin,

Acostas, or the City owned the sidewalk where the fall occurred. Appellants did not allege willful and wanton conduct on the part of the defendants. Further Appellants did not allege that there was a violation of any city ordinance.

{¶12} All Defendants- Appellees filed timely answers and discovery ensued. Eventually, all defendants filed motions for summary judgment. *fn2 Defendant-Appellee City of Circleville contended it was entitled to sovereign immunity and argued in the alternative: (1) the condition of the concrete sidewalk was open and obvious; (2) it was not liable for minor imperfections of two inches or less; and (3) there was no evidence of attendant circumstances. Plaintiffs-Appellants filed a memorandum contra defendant City of Circleville's motion for summary judgment, in which it did not address or dispute the immunity argument.

{¶13} On April 12, 2012, the trial court issued its decision. The trial court dismissed the City of Circleville, noting that Plaintiffs-Appellants had not disputed the City's argument that it was entitled to immunity. The trial court also found that Plaintiff Susan Allen was at most, a licensee, and there was no evidence that Defendants Acostas/Rankin had intent, purpose, or design to injure Mrs. Allen. The trial court further found that any unevenness in the sidewalk was open and obvious; any imperfection in the sidewalk was two inches or less; and, there was no evidence of attendant circumstances. As such, the trial court granted summary judgment to Defendants Acosta/Rankin as well.

{¶14} The trial court further analyzed the facts under the rule set forth in Eichorn v. Lustig's Inc., 161 Ohio St. 11, 117 N.E.2d 436 (1954), as to the duties of abutting property owners. This analysis necessitated discussion of Circleville City Ordinance 521.06(a) which was not an issue raised by Plaintiffs-Appellants. Instead, the ordinance was discussed in the motion for summary judgment of Defendants/Appellees Acosta/Rankin as an alternative defense.

{¶15} The trial court also dismissed Appellant Roderick Allen's loss of consortium claim.

{¶16} This appeal followed. Appellant's sole assignment of error does not include a challenge to the trial court's application of the doctrine of sovereign immunity herein which discharged the City of Circleville of liability.

ASSIGNMENT OF ERROR

I. "THE TRIAL COURT ERRED AS A MATTER OF LAW BY

GRANTING DEFENDANTS/APPELLEES' ...


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