Appeals court upholds ruling dismissing suit against Marc’s

STAFF REPORT

YOUNGSTOWN — A magistrate and a judge were correct in dismissing a lawsuit by a woman who said she was injured when she tripped on a plainly-visible eyebolt on a sidewalk at a retail store, an appeals court has ruled.

A three-judge panel of the 7th District Court of Appeals unanimously ruled on Monday, upholding the dismissal of Jo-Ann Dominic’s lawsuit against Marc’s discount store.

The case was dismissed by Magistrate Timothy G. Welsh, whose decision was upheld by Judge R. Scott Krichbaum. Magistrate Welsh and Judge Krichbaum are with Mahoning County Common Pleas Court.

Dominic, of Youngstown, said she suffered facial and bodily injuries when she fell outside Marc’s Austintown store during the daylight hours March 21, 2005.

“The area where Dominic tripped appears too narrow for normal pedestrian traffic, and a proper precautionary measure would have been to avoid traversing it at all,” the appellate panel observed.

“Dominic’s testimony shows that she could have easily avoided the danger if she had merely been watching where she was walking,” the judges added.

Because the hazard was “open and obvious,” Marc’s owed Dominic no duty of care concerning the eyebolt, the judges ruled.

Monday’s decision mirrored a September ruling by the same appeals court that upheld dismissal of a similar lawsuit that was filed against the city of Canfield by a woman who fell on a city sidewalk.

In that case, a woman filed suit after she tripped on a water shutoff valve cap that protruded slightly above the sidewalk.

A magistrate dismissed that case because of what he termed “the open and obvious nature of the hazard,” and a judge upheld the dismissal before the appeals court ruled.

The appellate court decision in the Marc’s case was written by Judge Gene Donofrio, with Judges Joseph J. Vukovich and Cheryl L. Waite concurring.