Menke v. Beerman, Unpublished Decision (3-9-1998)
Menke v. Beerman, Unpublished Decision (3-9-1998)
Opinion of the Court
OPINION
Plaintiff-appellant, Barbara Menke, appeals a judgment of the Butler County Common Pleas Court sustaining a motion for summary judgment filed by defendants-appellees, Ted and Maryrose Beerman. Appellant asserts the following assignment of error:THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE'S MOTION FOR SUMMARY JUDGMENT.
Appellant, a business invitee, went to appellees' store, Center Stage Video, on High Street in Oxford, Ohio to rent video tapes. She had no difficulty entering the store. She rented three videos and departed from the store. As she exited the front door onto the sidewalk, appellant stepped partially into a hole that was three-quarters of an inch deep on the sidewalk and broke a bone in her left foot. She filed suit alleging negligence in failing to maintain the sidewalk and failure to warn of the danger presented by the defective sidewalk.
In her deposition, appellant stated that she was not looking down as she stepped into the hole and did not see the hole, but that she would have been able to see the hole if she had looked down. Appellant's affidavit submitted with the memorandum contra to the motion for summary judgment stated that her "eyesight was easily diverted from the defect in the sidewalk by other pedestrians, traffic or other conditions."
The trial court, after setting forth the correct legal standard for ruling on a summary judgment motion, concluded that the defect in the sidewalk was insubstantial as a matter of law, citing Kimball v. Cincinnati (1953),
The trial court found, and the record supports the finding, that there was no evidence that appellant was distracted. Neither does appellant's affidavit contain specificity which would identify attendant circumstances reasonably leading to a finding of increased risk. The hole in the pavement was open and obvious and could have been seen by appellant if she had looked. Paschal v. Rite Aid Pharmacy (1985),
The trial court correctly sustained appellee's motion for summary judgment. The assignment of error is overruled.
Judgment affirmed.
POWELL, P.J., and KOEHLER, J., concur.
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