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An Open and Obvious Hole in A Parking Lot Found Not to Be a Physical Defect

In the case of Shaw v. Washington Court House City Schools Bd. of Edn., 2022-Ohio-4226, the appellate court held that a two-to-four-inch hole in the pavement near a drainage grate in an otherwise contiguously paved school parking lot surface does not constitute a “physical defect” necessary to trigger the narrow immunity exception set forth in R.C. 2744.02(B)(4) and, in any event, such a hole was both “open and obvious.”

In this case, an individual was injured after tripping over a hole near a drainage grate in the school parking lot and, as a result, argued that such injuries were caused by both employee negligence and a physical defect on the school grounds. In response, the school district argued that the hole did not constitute a physical defect as the hole did not diminish the worth of the parking lot and was, nonetheless, both open and obvious. The appellate court agreed with the school district.

In support of its decision, the appellate court explained that, “although not statutorily defined, the ‘prevailing authority’ has defined the term ‘physical defect’ in the context of R.C. 2744.02(B)(4) to mean ‘a perceivable imperfection that diminishes the worth or utility of the object at issue.’” 2022-Ohio-4226 at ¶ 19. The appellate court further explained that “’[w]hen an instrumentality does not operate as intended (i.e. safely) due to a perceivable condition, it loses its ability to function in a safe manner and may constitute a perceivable imperfection that diminishes the instrumentality’s utility or worth.’” Here, the appellate court found no evidence to indicate the parking lot failed to operate as intended because of the hole, or that the utility of the parking lot was either impaired and/or diminished in any way by that hole.

In support of its decision, the appellate court also explained that, “’[u]nder the open and obvious doctrine, the owner of a premises does not owe a duty to persons entering those premises with regard to dangers that are open and obvious.’ ‘The rationale behind this doctrine is that ‘the open and obvious nature of the hazard itself serves as a warning.’ ‘When deciding whether a condition is open and obvious, “the determinative question is whether the condition is discoverable or discernible by one who is acting with ordinary care under the circumstances.’” 2022-Ohio-4226 at ¶ 25 (omitting internal citations). Here, the appellate court found that, had any individual been looking where they were walking, they would have been able to observe, appreciate, and avoid the hole in question with little to no effort.

WARNING: This holding was based upon the undisputed material facts in this case. The outcome may have been much different had the facts been different.

To read this case, click here.

Authors: Matthew John Markling and the McGown & Markling Team.

Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always-changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.


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