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1 of 98 DOCUMENTS
JAMES ROGERS, Appellant v. CITY OF WOOSTER, et al., Appellees
C.A. NO. 96CA0085
COURT OF APPEALS OF OHIO, NINTH APPELLATE DISTRICT, WAYNE
COUNTY
1997 Ohio App. LEXIS 3478

July 30, 1997, Dated


PRIOR HISTORY:
[*1] APPEAL FROM
JUDGMENT ENTERED IN THE COURT OF
COMMON PLEAS. COUNTY OF WAYNE, OHIO.
CASE NO. 96CV0048.
DISPOSITION: Judgment affirmed.
CASE SUMMARY:
PROCEDURAL POSTURE: Appellant pedestrian
challenged a decision from the Wayne County Court of
Common Pleas (Ohio), which granted summary judgment
to appellees, a city and building owner, in the pedestrian's
action for personal injuries caused when he tripped over a
step in the public sidewalk in front of the building
owner's building.
OVERVIEW: The pedestrian was injured when he
tripped on a step constructed in a sidewalk. He was in the
process of avoiding heavy pedestrian traffic at the area
near the step. The pedestrian initiated an action for
personal injuries sustained in the fall against the city and
the building owner. The trial court granted summary
judgment to the city and the building owner because it
determined that the step was open and notorious so that
the pedestrian should have seen the step and avoided it.
The pedestrian asserted that while the step was in plain
view, the city should have anticipated the crowd of
pedestrians and warned him since he was unable to see

the step. The court affirmed the grant of summary


judgment because it determined that the step was in open
view and was identical to many other steps on the street
that the pedestrian crossed so that the crowd obstruction
did not establish an independent duty in the city to warn
of the step. The court determined that summary judgment
was appropriate for the building owner because the
pedestrian had asserted no claim of any duty that she
owed to the pedestrian relating to the step that existed as
a part of the sidewalk.
OUTCOME: The court affirmed the decision from the
trial court that granted summary judgment to the city and
the building owner in the pedestrian's action for personal
injuries.
LexisNexis(R) Headnotes

Civil Procedure > Summary Judgment > Appellate


Review > General Overview
Civil Procedure > Summary Judgment > Standards >
General Overview
[HN1] In order to determine whether the lower court
properly granted summary judgment pursuant to Ohio
Civ. R. 56, a reviewing court must apply the same
standard as the trial court. Summary judgment is properly
granted when, construing the evidence most favorably

Page 2
1997 Ohio App. LEXIS 3478, *1

toward the nonmoving party, there is no genuine issue of


material fact remaining and the moving party is entitled
to judgment as a matter of law.
Governments > Local Governments > Claims By &
Against
Torts > Public Entity Liability > Liability > General
Overview
Transportation Law > Bridges & Roads > Sidewalks
[HN2] Ohio Rev. Code Ann. 2744.02(B)(3) provides,
in part, that: Political subdivisions are liable for injury,
death, or loss to persons or property caused by their
failure to keep public sidewalks within the political
subdivisions open, in repair, and free from nuisance.
Governments > Local Governments > Claims By &
Against
Torts > Negligence > Causation > General Overview
[HN3] Negligence can only be established by a showing
of duty, breach, and proximate cause.

James Rogers.
MARK W. BASERMAN, Attorney at Law, 45 S.
Monroe Street, Millersburg, OH 44654, for Appellee City
of Wooster.
RICHARD BENSON, Attorney at Law, 538 N. Market
St., Wooster, OH 44691, for Appellee City of Wooster.
JERRY S. PACKARD, Attorney at Law, 449 N. Market
Street., Wooster, OH 44691, for Appellee Mary Alice
Streeter.
JAMES J. LANHAM, Attorney at Law, 142 West
Liberty Street, P. O. Box 218, Wooster, OH 44691, for
Appellee Mary Alice Streeter.
JUDGES: DANIEL B. QUILLIN, Judge. DICKINSON,
P. J., SLABY, J., CONCUR.
OPINION BY: DANIEL B. QUILLIN
OPINION

Torts > Negligence > Duty > General Overview


[HN4] The knowledge of the condition removes the sting
of unreasonableness from any danger that lies in it, and
obviousness may be relied on to supply knowledge.
Hence the obvious character of the condition is
incompatible with negligence in maintaining it. If
plaintiff happens to be hurt by the condition, he is barred
from recovery by lack of defendant's negligence towards
him, no matter how careful plaintiff himself may have
been.
Torts > Negligence > Duty > General Overview
Torts > Premises Liability & Property > General
Premises Liability > Dangerous Conditions > Obvious
Dangers
Torts > Premises Liability & Property > General
Premises Liability > Duties of Care > Duty on Premises
> Invitees > General Overview
[HN5] An owner or occupier of premises has no duty to
protect an invitee against dangers which are so obvious
and apparent that the invitee should reasonably be
expected to discover them and take precautionary
measures.
COUNSEL: O. JOSEPH MURRAY, Attorney at Law,
10 East Main Street, Ashland, OH 44805, for Appellant

DECISION AND JOURNAL ENTRY


Dated: July 30, 1997
This cause was heard upon the record in the trial
court. Each error assigned has been reviewed and the
following disposition is made:
QUILLIN, Judge.
Appellant, James Rogers, appeals the judgment of
the Wayne County Common Pleas Court granting
summary judgment to defendants-appellees, the City of
Wooster and Mary Alice Streeter. [*2] We affirm.
On the morning of August 27, 1994, Rogers was
walking north on the west side of South Market Street in
Wooster. He was only "somewhat" familiar with
downtown Wooster at the time. Due to special activities
going on downtown that day, there was a crowd of people
on the sidewalk which Rogers had to maneuver around.
After moving all the way to the left side of the sidewalk,
Rogers tripped over a step which he had not seen due to
the heavy pedestrian traffic. The step was located on a
public sidewalk in front of The City News Building,
which was owned by Streeter. The step had been placed
there by the city some years prior.

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1997 Ohio App. LEXIS 3478, *2

Rogers filed a complaint against Streeter and the city


for injuries he sustained in the fall. He alleged that each
defendant-appellee was negligent for failing to abate a
nuisance because, he claimed, the protruding step created
a hazard for passersby. Both Streeter and the city filed
motions for summary judgment. The trial court granted
these motions. The court found that neither Streeter nor
the city had a duty to warn Rogers of the step because it
was an open and obvious condition. The court further
found that the city was immune from liability under [*3]
R.C. 2744. Rogers appeals the granting of summary
judgment against him.
[HN1] In order to determine whether the lower court
properly granted summary judgment pursuant to Civ.R.
56, a reviewing court must apply the same standard as the
trial court. Temple v. Wean United, Inc. (1977), 50 Ohio
St. 2d 317, 327, 364 N.E.2d 267. Summary judgment is
properly granted when, construing the evidence most
favorably toward the nonmoving party, there is no
genuine issue of material fact remaining and the moving
party is entitled to judgment as a matter of law. Id.
We will discuss the city's liability first. R.C.
2744.02(B)(3), as it existed at the time of this accident,
states:
[HN2] Political subdivisions are liable for injury,
death, or loss to persons or property caused by their
failure to keep public * * * sidewalks * * * within the
political subdivisions open, in repair, and free from
nuisance * * * .
Rogers claims that summary judgment was
improperly granted because, he contends, it was an issue
for the jury to determine whether the step in question
constituted a "nuisance."
Rogers concedes in his brief that in order to show the
step constituted a nuisance, he must show that the city
was somehow negligent. [*4] See Taylor v. Cincinnati
(1944), 143 Ohio St. 426, 55 N.E.2d 724, third paragraph
of the syllabus. It is well established that [HN3]
negligence can only be established by a showing of duty,
breach, and proximate cause. See Jeffers v. Olexo (1989),
43 Ohio St. 3d 140, 142, 539 N.E.2d 614. Absent any of
the three, a claim based on negligence must fail.
The Ohio Supreme Court has stated:
[HN4] 'The knowledge of the condition removes the

sting of unreasonableness from any danger that lies in it,


and obviousness may be relied on to supply knowledge.
Hence the obvious character of the condition is
incompatible with negligence in maintaining it. If
plaintiff happens to be hurt by the condition, he is barred
from recovery by lack of defendant's negligence towards
him, no matter how careful plaintiff himself may have
been.'
Sidle v. Humphrey (1968), 13 Ohio St. 2d 45, 48, 233
N.E.2d 589, quoting 2 Harper & James, Law of Torts
(1956), 1491. For this reason, the Sidle court went on to
hold that [HN5] an owner or occupier of premises has no
duty to protect an invitee against dangers which are so
obvious and apparent that the invitee should reasonably
be expected to discover them and take precautionary
measures. Sidle, supra at paragraph [*5] one of the
syllabus. We will assume, for the sake of this appeal, that
Rogers constituted an invitee on the city's sidewalk, as
this is the class of persons to whom a landowner owes the
greatest duty of care. See Gladon v. Greater Cleveland
Regional Transit Auth. (1996), 75 Ohio St. 3d 312, 317,
662 N.E.2d 287.
As exhibits supporting its motion for summary
judgment, the city attached photographs of the sidewalk
where Rogers was walking and the step over which he
tripped. The photos depict a sidewalk somewhere in the
neighborhood of ten feet in width, with a single, clearly
visible cement step in front of each of numerous business
entrances. Each step appears to be identical and protrudes
approximately one foot onto the extreme west edge of the
sidewalk. It also appears that anyone traversing north on
the sidewalk would pass several before reaching the one
in front of The City News Building.
Rogers argues that because there was a crowd on the
sidewalk blocking his view of the step, the step was not
open and obvious to him and the city should reasonably
have anticipated this possible circumstance. On this issue
the lower court stated, "The fact that pedestrians blocked
his view of the step [*6] does not make the defendants
negligent." Similarly, in Stockhauser v. Archdiocese of
Cincinnati (1994), 97 Ohio App. 3d 29, 35, 646 N.E.2d
198, the Second District Court of Appeals declined to
find that the mere presence of other pedestrians was a
sufficient cause to render an insubstantial defect in a
walkway substantial for the purpose of finding
negligence.

Page 4
1997 Ohio App. LEXIS 3478, *6

We agree with the lower court and the Second District.


The mere fact that Rogers failed to see the step in his
attempt to avoid unusually heavy pedestrian traffic does
not, in itself, suggest negligence on the part of the city.
There was no evidence presented that the step was
defective in any way and we decline to conclude that the
mere presence of other people could render it so.
It is apparent from the record before us that the step
in front of The City News Building was clearly visible to
even the most casual of observers. Because of its obvious
nature, the city owed Rogers no duty to protect him from
tripping over it. Where there is no duty, there can be no
genuine issue of negligence. The lower court properly
granted summary judgment in favor of the city. Having
determined that the city was not negligent, we need not
discuss the issue [*7] of immunity.
We next discuss Streeter's liability. Rogers has failed
to demonstrate any negligence on her part. He has not
alleged that she placed the step on the sidewalk or that it
was part of her property. He has not alleged that she
failed to maintain it in any way. He has not alleged that
she knowingly allowed some defect in the step to
continue to exist. He has not alleged that she created any
condition that made the step dangerous. See Eichorn v.
Lustig's, Inc. (1954), 161 Ohio St. 11, 117 N.E.2d 436,
syllabus. It appears that Rogers has pursued this suit
against Streeter by virtue of her unfortunate proximity
rather than any remiss of duty on her part. Summary
judgment was appropriately granted in her favor. Rogers'

assigned error is not well taken.


Judgment affirmed.
The Court finds that there were reasonable grounds
for this appeal.
We order that a special mandate issue out of this
court, directing the County of Wayne Court of Common
Pleas to carry this judgment into execution. A certified
copy of this journal entry shall constitute the mandate,
pursuant to App.R. 27.
Immediately upon the filing hereof, this document
shall constitute the journal entry of judgment, and [*8] it
shall be file stamped by the Clerk of the Court of Appeals
at which time the period for review shall begin to run.
App.R. 22(E).
Costs taxed to appellant.
Exceptions.
DANIEL B. QUILLIN
FOR THE COURT
DICKINSON, P. J.
SLABY, J.
CONCUR