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Miraldi & Barrett Co., LPA

Homeowner's Association May Be Negligent In Failing To Correct Defect in Sidewalk

A sixteen year old teenager suffered a skull fracture, facial lacerations, and other injuries when riding his bicycle.  The front tire of the boy's bicycle struck a three inch rise where one sidewalk slab abutted against another slab.  The front tire of the boy's bicycle came off and the teen catapulted over the handlebars.  The sidewalk was part of a development controlled by a homeowner's association.  The boy's parents sued the homeowner's association for negligence.  The trial court granted summary judgment to the homeowner's association, finding that it was not negligent, and dismissed the lawsuit.  The case was appealed and the court of appeals ruled that the boy's case had questions of fact that must be decided by a jury.

Ohio law in this situation is tricky and requires an analysis of several questions.  The first question is the status of the boy who was injured.  In Ohio, a person on the property of another is categorized as either a trespasser, a licensee, a social guest, or a business invitee.  Depending on the classification, the property owner owes a different duty.  In this case, the homeowner's association argued that the boy was a licensee, someone who has an implied permission to be on the property but who is there for his own convenience and pleasure and provides no benefit to the landowner.  A property owner has a limited responsibility to a licensee:  the owner is under a duty to refrain from willful or wanton misconduct -- meaning that the owner's actions must represent a failure to exercise any care toward the person on the property.  The trial court agreed with this analysis.

The boy's parents argued that the young man was a business invitee.  An invitee is a person who is rightfully on the premises by invitation of the owner, either express or implied, for the benefit of the owner.  The best example of a business invitee is a customer who goes to a business to buy a product.   The parents paid dues to the homeowner's association and the young man was a pool lifeguard for the association  (however a different entity owned the pool).  The court of appeals found that the injured boy was a business invitee because he provided a benefit to the homeowner's association.  Property owners must exercise ordinary care to protect business invitees by maintaining the property in a safe condition.  Ohio law also has found that insubstantial differences in sidewalk slabs cannot be the basis of a negligence claim.  If the defect is less than two inches, the defect is insubstantial.  In this case, the defect was almost three inches and was determined to be substantial.

The property owner also argued that the condition was open and obvious.  When a condition is open and obvious, Ohio law states that persons encountering an open and obvious condition are supposed to discover the condition themselves, and the property owner owes them no duty to warn of the danger or eliminate the danger.  The homeowner'as association made this argument.  The court of appeals stated that no one is under a duty to look constantly downward when walking.  Also because there was a manhole adjoining the concrete, it would be natural for the young man to focus on it and his eyes would have been diverted from the difference in elevation.  This is known as an attendant circumstance and excuses a person from discovering an open and obvious condition.

Finally, the homeowner's association argued that the teenager was standing up and riding quite fast at the time of the incident.  The association argued that the boy's own carelessness resulted in him being more than fifty percent at fault for the incident, and, thus, barred him from a recovery.  The court of appeals ruled that it was up to a jury to determine if the boy was negligent and compare his negligence to that of the homeowner's association.

The court of appeals ruled that the case should be returned to the trial court.  The court of appeals did not rule in the boy's favor.  Instead, the court merely held that the case could proceed to trial and jury would determine if the boy could recover.