Stockhauser v. Archdiocese of Cincinnati , 97 Ohio App. 3d 29 ( 1994 )

I write separately in order to note my view that the issue of whether the presumption of triviality accorded a defect of less than two inches in height has been overcome depends upon the general circumstances prevailing at the site of the defect, not the particular circumstances that have led to the plaintiff's injury. Thompson v. Kroger Co. (June 9, 1992), Montgomery App. No. 13248, unreported, 1992 WL 127708. This is because the owner or manager of the premises cannot be expected to take into consideration the particular circumstances at the time of the plaintiff's injury in deciding whether an otherwise trivial defect ought to be repaired.

In the case before us, I am satisfied that the attendant circumstances generally prevailing at the site of the alleged defect were not sufficient to overcome the presumption of triviality. In this case, as compared with Thompson v. Kroger,supra, there was less likelihood that a pedestrian would be concerned with vehicular traffic at the site of the defect, and less likelihood that the pedestrian would be encumbered with grocery bags or a grocery cart that would obscure the pedestrian's view of the ground in front of him or her.

I join in affirming the summary judgment rendered in favor of defendant-appellee, the Archdiocese of Cincinnati.