Background
Clarence Johnson, age 77, was walking his dog along a sidewalk in Macedonia, Ohio when he fell and sustained serious injuries including a fractured neck. The Johnsons sued neighboring property owner Nic Smith for negligence and negligence per se based on Macedonia Codified Ordinance 521.06(a), which requires abutting property owners to keep sidewalks in repair. The trial court granted summary judgment to Smith, finding the sidewalk defect was less than two inches (and therefore trivial as a matter of law), the defendant owed no duty, and the plaintiffs failed to establish causation.
Critical evidentiary issues arose regarding a neighbor’s statement about Mr. Johnson telling her he tripped on the sidewalk, which the trial court excluded as hearsay, and the trial court’s refusal to consider the plaintiffs’ expert report and affidavit.
The Court’s Holding
The Ninth District reversed and remanded. First, the court found evidence that the sidewalk height difference exceeded two inches, including Mr. Smith’s own deposition testimony estimating it at “at least below two-and-a-half inches” and a neighbor’s affidavit estimating two to three inches. This put the trivial-defect defense in genuine dispute.
Second, the court held the trial court erred in excluding the neighbor’s statement as hearsay. Mr. Johnson’s statement to the neighbor that he tripped on the sidewalk was admissible as an excited utterance under Evid.R. 801(2), given that he had suffered a fractured neck and was unable to move when the neighbor found him. Additionally, the neighbor’s own observations — Johnson’s feet near uneven sidewalk — provided circumstantial evidence of causation.
Critically, the court emphasized that the open-and-obvious doctrine does not override statutory duties imposed by ordinance. When negligence per se is established through a municipal ordinance violation, both duty and breach are conclusively proven, and only causation and damages remain at issue.
Key Takeaways
- Ohio’s open-and-obvious doctrine does not defeat negligence per se claims based on statutory duties imposed by municipal ordinances — Lang v. Holly Hill Motel remains good law.
- The two-inch “trivial defect” threshold for sidewalk cases is a question of fact when the evidence, viewed most favorably to the nonmovant, supports a measurement exceeding two inches.
- Statements by an injured person to a first responder about the cause of the injury may be admissible as excited utterances under Evid.R. 801(2) when the person is still under the stress of the event.
Why It Matters
This opinion is essential for Ohio premises liability practitioners. The majority’s holding that negligence per se claims based on municipal ordinances survive the open-and-obvious defense fills an important gap, and personal injury attorneys should carefully research local ordinances imposing maintenance duties on abutting property owners. The excited utterance ruling also provides a useful precedent for cases where the injured party cannot recall the fall but made statements at the scene. The dissent, arguing for no duty as a matter of law, highlights ongoing tension within the Ninth District on the scope of municipal sidewalk obligations.