Background
Deborah and Keith Gustafson traveled from Iowa to Columbus for an Ohio State–Iowa football game. After the game, Deborah tripped on a raised “lip” in an OSU-owned sidewalk and was injured. She estimated the elevation difference at one and one-half inches. The Gustafsons sued OSU for negligence, negligence per se, and loss of consortium.
The Court of Claims granted OSU summary judgment. It concluded that the sidewalk condition was open and obvious, that the height difference was an insubstantial defect under Ohio’s two-inch rule, and that the cited Columbus sidewalk-maintenance ordinances did not create a duty to pedestrians supporting negligence per se. The Gustafsons appealed, arguing that the evidence had not been construed in their favor.
The Court’s Holding
The Tenth District affirmed. Because the sidewalk’s elevation difference was undisputedly less than two inches, it was presumptively insubstantial under Ohio’s two-inch rule. The Gustafsons did not produce evidence of attendant circumstances sufficient to rebut that presumption. Deborah testified that she had enough space to see the ground, was not distracted, and could have seen the defect had she looked. Keith’s description of pedestrian traffic did not create a factual dispute about whether that traffic actually distracted Deborah or contributed to her fall.
The court also held that Columbus Codified Ordinances 905.06 and 905.11 did not impose a specific duty on property owners for the protection of pedestrians. Those provisions require sidewalk maintenance and repair but, under the court’s precedent, do not by themselves create a private negligence-per-se claim. Because the negligence claims failed, Keith’s derivative loss-of-consortium claim failed as well. The court did not need to decide whether the open-and-obvious doctrine independently supported judgment for OSU.
Key Takeaways
- A sidewalk elevation difference of less than two inches is rebuttably presumed insubstantial under Ohio law.
- Pedestrian traffic is not an attendant circumstance merely because it is present; the evidence must show that it diverted the injured person’s attention, increased the danger, and contributed to the fall.
- Columbus sidewalk-maintenance ordinances 905.06 and 905.11 do not, without more, create a duty to pedestrians supporting negligence per se.
Why It Matters
The decision underscores the evidence required to overcome Ohio’s two-inch rule at summary judgment. General assertions about postgame crowds will not suffice when the injured pedestrian testifies that the crowd caused no distraction and did not obstruct the walkway.
It also confirms that violating a municipal sidewalk-maintenance ordinance does not automatically create civil liability to an injured pedestrian. A plaintiff must identify a legislative enactment imposing a specific protective duty or establish liability through another recognized basis.