Appellate Court Signals Potential End to Sidewalk “Trip-and-Fall” Liability for Ohio’s Political Subdivisions

The Eighth District Court of Appeals’ unanimous decision in Gordon v. Dziak (8th Dist. 2008), 2008 WL 384146, 2008-Ohio-570, signals what may be an end to sidewalk “trip and fall” liability for Ohio’s political subdivisions.

The Political Subdivision Tort Liability Act provides broad immunity to political subdivisions, unless a statutory exception applies. R.C. § 2744.02(A). Before April of 2003, the negligent maintenance of a sidewalk was a well-recognized exception to immunity. R.C. § 2744.02(B)(3). The April 9, 2003 amendments to the Act removed reference to sidewalks. Yet, some uncertainty existed about how courts would apply this exception, which would effectively eliminate a frequent claim against political subdivisions.

Ohio’s Eighth District is the apparent first appellate court to apply the amended exception to immunity under Revised Code § 2744.02(B)(3). The court held that political subdivisions are immune from injury claims resulting from negligent sidewalk maintenance.

The Gordon facts are not unlike those in countless trip and fall lawsuits. Ms. Gordon claimed injury when she tripped on an allegedly defectively maintained City of Lakewood sidewalk. She sued the city and the homeowner, whose property abutted the sidewalk. The trial court granted summary judgment in favor of the homeowner and the city. But, the trial court did not address immunity, finding that common law defenses barred Ms. Gordon’s claim.

Ms. Gordon sought review in the Eighth District Court of Appeals. On behalf of the City of Lakewood, MRR&K attorneys asserted that the court of appeals should determine the immunity issue under the newly amended statute. The court agreed. In doing so, the court created favorable law for all political subdivisions.

In accord with our arguments, the Gordon court made clear that the claim was barred because the “injury occurred on August 22, 2004, after the General Assembly amended R.C. 2744.02(B)(3) by removing the word “sidewalk” from the statute. Thus, the city is entitled to immunity under R.C. 2744.02(A)(1), because R.C. 2744.02(B)(3) does not impose liability on the city for the negligent maintenance of its public sidewalks and no other exceptions pursuant to R.C. 2744.02(B)(1)-(5) apply.”

The court also determined that a general statutory duty to care and control sidewalks does not impose civil liability on political subdivisions. “While R.C. 723.01 makes a municipal corporation responsible for the care, control, and supervision of public sidewalks, the statute makes it clear that liability or immunity for these matters are still determined by R.C. 2744.02.”

The decision is only binding in the Eighth District (Cuyahoga County), but Gordon is plainly in accord with the language of the amended Tort Liability Act and should be followed in other districts. As such, it signals what should be an end to sidewalk “trip and fall” liability for Ohio political subdivisions.

Importantly, Gordon and the amended exception only apply to cases where the injury or damage occurred after April 9, 2003. The cases that accrued pre-amendment, however, should be few because the statute of limitations would bar most claims that occurred before that time.