Tripped on a Sidewalk at Your Apartment? Ohio's Two-Inch Rule and the Landlord's Statutory Duty

Published August 30, 2022 · Ohio Appeals Courts

A raised slab of concrete on the walk to your front door is the kind of hazard people step around a hundred times without thinking. Then one evening, arms full of groceries, someone catches a toe and goes face-first onto the pavement.

On August 12, 2022, the Second District Court of Appeals, which hears appeals from Montgomery, Clark, Greene, Miami and nearby counties, decided exactly that kind of case. Dabe v. M.K. Hufford Co., Inc., 2022-Ohio-2802, contains genuinely good news for people hurt at apartment complexes. It also shows how a rule measured in inches can decide a case, and why the evidence has to be collected the same day.

The landlord's duty comes from a statute

Ohio's Landlord-Tenant Act gives renters protections that go beyond ordinary negligence law. Under R.C. 5321.04(A), a landlord must:

• make all repairs and do whatever is reasonably necessary to keep the premises fit and habitable, under (A)(2); and
• keep all common areas of the premises in a safe and sanitary condition, under (A)(3).

The Supreme Court of Ohio held in Mann v. Northgate Investors, L.L.C., 138 Ohio St.3d 175, 2014-Ohio-455, that these duties are owed not only to tenants but to their guests lawfully on the property, and that violating them is negligence per se, meaning the statute itself establishes the duty and the breach. I wrote about Mann when it was decided in our post on landlord duties to tenants' guests, and last year in a broader post on a landlord's duties under R.C. 5321.04. The injured person still has to prove the defect caused the injury and that the landlord knew or should have known about it.

What happened at Westmont Place

Linda Dabe regularly helped her sister, a tenant at an apartment complex in Springfield, with groceries and doctor's appointments. On a sunny Saturday evening in August 2018, she carried two bags of groceries up the sidewalk leading to her sister's front door. Sections of that walk were raised one to two inches. She caught her foot and fell face-down, suffering facial injuries, broken ribs and bruising. She was taken to Springfield Regional Hospital and then transferred to Miami Valley Hospital.

According to the opinion, she had complained twice to the complex's maintenance man about the sidewalk months before her fall. After the fall, the owner tore out and re-poured portions of that walk and several others. She sued under the Landlord-Tenant Act, and the trial court granted summary judgment to the landlord, finding the defect was less than two inches and open and obvious.

The good news: the statute applies, and "open and obvious" is no defense

The landlord argued that the walk was a "public sidewalk" outside the Landlord-Tenant Act. The Second District disagreed. The walk did not run along the street; it led from the public sidewalk to individual units, sat on the landlord's property, and was there for tenants' use. That made it part of the common area the landlord had a statutory duty to keep safe.

Next, the court addressed the open-and-obvious doctrine, the defense that says a property owner owes no duty to warn about a danger so obvious that visitors should see it and protect themselves. Following Mann, the court held that whether the defect was open and obvious "is not an issue in this case." A landlord sued under R.C. 5321.04(A)(3) cannot escape liability by arguing that the tenant or guest should have seen the hazard.

That matters. In ordinary fall cases, the open-and-obvious defense is one of the most common reasons claims are dismissed. Building the claim on the landlord's statutory duty takes that argument off the table.

The hard part: Ohio's two-inch rule

The court still affirmed judgment for the landlord because of a separate doctrine. Since Kimball v. Cincinnati (1953), Ohio courts have treated height differences of two inches or less between sidewalk sections as insubstantial as a matter of law, and in 1966 the Supreme Court extended the rule to private property. In Cash v. Cincinnati, 66 Ohio St.2d 319 (1981), the Supreme Court softened it, holding that "attendant circumstances" can make a small defect substantial. Mrs. Cash fell in a depression in a crosswalk at a busy downtown intersection during the lunch rush, behind a crowd that blocked her view, and the jury verdict in her favor was reinstated.

The Second District has said attendant circumstances must, taken together, divert the pedestrian's attention, significantly increase the danger of the defect, and contribute to the fall. In Dabe, the weather was clear, the sun had not set, and the grocery bags did not block her view. No attendant circumstances were alleged. The court held that a defect that insubstantial does not make a common area unsafe under the statute.

Lessons for anyone hurt at an apartment complex

The two-inch rule turns a fall case into a measurement case. That means the evidence needs to be gathered before the landlord repairs the hazard, which, as Dabe shows, can happen within days.

• Measure it. Photograph the defect with a tape measure or ruler standing vertically against the raised edge. A defect of more than two inches is outside the rule entirely, and fractions of an inch matter.
• Photograph the whole scene. Take wide shots showing the path, lighting, shadows, landscaping, and anything that draws the eye away from the ground.
• Record the attendant circumstances. Were you dodging a car in the lot, stepping around children, carrying something that blocked your view, or walking at dusk with a burned-out light? Write it down the same day.
• Find the complaints. Written repair requests and maintenance logs prove the landlord knew. Report defects in writing, not just to someone mowing the grass.
• Go back before it is fixed. If the landlord re-pours the concrete, your photographs may be the only record of what was there.

Our guide chapters on the first 72 hours after an injury and gathering evidence while it still exists walk through these steps, and the same urgency applies to store falls, as I explained in last month's post on preserving surveillance video.

What this means for you

If you or a family member was hurt in an apartment parking lot, stairwell, walkway or other common area, the Landlord-Tenant Act may give you a stronger claim than ordinary negligence law, one that does not depend on whether the hazard was obvious. Guests are protected too. But the case will be decided on details: how big the defect was, what else was going on, and what the landlord knew. Those details are easiest to prove in the first few days. Our premises liability page explains more about these claims.