Tripped at a Store Entrance? Why a Shopping Cart Can Change Your Ohio Slip-and-Fall Case

Published June 26, 2012 · Ohio Appeals Courts

A full shopping cart, a ramp down to the parking lot, and a crack in the concrete at the bottom. That is all it took to put Marlene Neura on the ground outside a Goodwill store in Medina County. The store argued that the crack was there for anyone to see and was too small to matter, and the trial judge threw her case out. On May 29, 2012, the Ninth District Court of Appeals disagreed and sent the case back for trial. Neura v. Goodwill, 2012-Ohio-2351, is a good example of how the facts surrounding a fall, not just the size of the defect, decide whether a store can be held responsible.

What happened

Mrs. Neura loaded her cart inside the store, exited, and pushed it down the ramp connecting the sidewalk to the parking lot. At the bottom of the ramp, the cart struck a ridge in the concrete, stopped short, and tipped. She held on, thinking she could keep it upright, and both she and the cart went over.

The crack was undisputedly two inches or less. Her son went to the store the day she fell and swore in an affidavit that the crack was visible if you stood next to it, but from the store's door it was "less or not even discernible." Mrs. Neura said the crack was invisible to her, that she had never used the ramp before despite shopping there regularly, that the cart blocked her view of the ground in front of her, and that the weight of the cart pulled her down the incline.

The store and the property owners won summary judgment in the trial court on two grounds: the crack was "open and obvious," and it was a "trivial defect." The Ninth District reversed on both.

Defense one: "open and obvious"

Ohio businesses owe their customers a duty to keep the premises reasonably safe. But under the open-and-obvious doctrine, a store has no duty to warn about hazards so apparent that a customer should be expected to see them and protect herself. When it applies, the doctrine ends the case. I have written before about how investigation gets around the open-and-obvious defense, and Neura shows the principle in action.

The court looked at the totality of the circumstances. The cart, which the store itself supplied, blocked Mrs. Neura's view of the ramp. The crack was not readily observable from the store's door. She had never taken that route before. On those facts, the court held there was a genuine question whether the crack was open and obvious, which means a jury, not a judge, has to decide it.

The court relied on a principle the Ohio Supreme Court announced decades ago: pedestrians are "not, as a matter of law, required to look constantly downward under all circumstances." A shopper pushing a cart into a parking lot has to watch for cars, other people, and the cart itself. The law does not demand that she stare at the pavement.

Defense two: the "two-inch rule"

Ohio courts have long held that minor imperfections in walkways, the kind that are commonly encountered and not unreasonably dangerous, do not create liability as a matter of law. Over time, a rough benchmark developed: a height difference of two inches or less is presumed trivial. Store defendants love this rule, and the crack here was under two inches.

But the presumption is not absolute. In Cash v. Cincinnati, the Ohio Supreme Court held that a court must consider the surrounding circumstances before declaring a defect trivial, and it found that a depression of an inch and a half in a busy downtown crosswalk could be substantial because pedestrians there have their attention diverted by signals, traffic, and other people. Lawyers call these "attendant circumstances."

The Ninth District found plenty of them here:

• Mrs. Neura was pushing a full cart down an incline, which obstructed her view and affected her control.
• The crack was not visible from a distance.
• She was entering a parking lot, where vehicle traffic demands attention.
• None of this was unique to her. The store provided the carts, and the crack sat at the base of the ramp, which is exactly the route any customer with a cart would take.

That last point is important. The hazard was located precisely where the store should have expected customers to be pushing heavy carts with limited visibility. The court compared the case to a Dayton-area decision from the Second District involving a customer who stepped in a pothole at the base of a grocery store ramp while carrying bags, and reached the same conclusion: whether the defect is substantial under those circumstances is a question for the jury.

What a store-entrance fall case needs

Cases like Neura are won on facts gathered quickly. As I explained in my post on what Ohio law requires you to prove in a store fall, the store will argue you should have seen the hazard. The answer is to document everything about the hazard and your circumstances:

• Photographs from where you were standing, not just close-ups. The son's observation that the crack vanished from the store's door was critical in Neura. A close-up photo of a crack helps the defense; a photo from the customer's vantage point helps you.
• The cart, the bags, the stroller. Whatever you were pushing or carrying that limited your view is an attendant circumstance. Note it and photograph it.
• Lighting, weather, traffic, and distractions. Everything that was pulling your attention away from the ground matters.
• Surveillance video. Most stores have exterior cameras covering the entrance. The footage shows how the fall happened and how many other customers used the same route. It is typically overwritten within days unless a preservation letter demands it.
• Maintenance and complaint records. Whether the property owner knew about the crack and how long it had been there.
• Who owns and maintains what. In Neura, the defendants included the store and the shopping-center owner and manager. Responsibility for a ramp between a storefront and a parking lot is often divided, and as I noted in my post on contractors and the open-and-obvious defense, the right defendant may not be the obvious one.

What this means for you

If you fell at a store entrance, in a parking lot, or on a ramp while pushing a cart or carrying purchases, do not accept the adjuster's claim that the defect was "too small" or "right there in plain sight." Those are legal defenses, and as Neura shows, they fail when the full circumstances are in front of a jury. The injuries from these falls, including hip fractures, wrist fractures, and head injuries, are serious and expensive, and the responsible property owner has insurance for exactly this situation.

Our office handles premises liability claims across the Dayton area, and we start every store-fall case by preserving the video and photographing the scene from the customer's point of view.