COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67570 MARGIE POLSTER, : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION CITY OF LYNDHURST, ET AL., : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 13, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 250196 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: Leon M. Plevin Joel Levin Ellen McCarthy NURENBERG, PLEVIN, HELLER & McCARTHY CO., L.P.A. Standard Building 1370 Ontario Street First Floor Cleveland, Ohio 44113-1792 For defendant-appellee, Edward G. Kagels City of Lyndhurst: EDWARD G. KAGELS & ASSOCIATES 14701 Detroit Avenue Suite 555 Lakewood, Ohio 44107 For defendants-appellees, William P. Farrall James and Jeane Ann Chaney: Richard C. Haber REMINGER & REMINGER CO., L.P.A. 113 St. Clair Avenue Suite 700 Cleveland, Ohio 44114 For defendants-appellees, Joseph Tira Albert and Roberta Fumich: QUANDT, GIFFELS & BUCK CO., L.P.A. 800 Leader Building Cleveland, Ohio 44114 Christopher R. Claflin 14701 Detroit Avenue No. 555 Lakewood, Ohio 44107 -3- NAHRA, J.: Plaintiff-appellant, Margie Polster, appeals from the trial court's grant of summary judgment in favor of defendants-appellees, City of Lyndhurst, James and Jean Anne Chaney and Albert and Roberta Fumich. For the following reasons, we affirm. Appellant went on a walk with her cousin Ruth Klein on June 6, 1991, around 9:55 a.m. The two women were walking on Winchester Drive, near the intersection of Winchester and Golfway. Some other pedestrians approached them from the opposite direction. Appellant and Klein moved to opposite sides of the sidewalk to let the others pass. When appellant proceeded on her way, her foot got caught on a raised portion of the sidewalk. Appellant fell and sustained injuries. The weather was clear and nothing obstructed appellant's view of the defect. She deposed that had she been looking down, she would have seen the defect. Appellant was looking ahead at the intersection to see if any traffic was coming and was distracted by the other pedestrians. The defect was a one and a quarter inch difference between the elevation of two sidewalk slabs. The defect was located on the property of Mr. and Mrs. Fumich, 1827 Winchester Drive. The Fumichs' house is at the corner of Winchester and Golfway. Two- thirds of the slab with the lower elevation was located on the property of Mr. and Mrs. Chaney, 1837 Winchester Drive. Mrs. Fumich deposed that the defect existed several years before the accident. Mrs. Chaney and Mrs. Fumich deposed that no one had -4- fallen there before, but conceded that the different elevations could possibly cause someone to trip. A few days after the accident, the city informed the Fumichs and the Chaneys that appellant had tripped on the defect. In the summer of 1992, as part of the regular inspection program, the city ordered the Chaneys to replace the lower slab. The Chaneys elected to have the city perform the work, and paid the city of Lyndhurst for the replacement. The city had inspected the sidewalks in the summer of 1990, but did not order replacement of the subject slab at that time. I. Appellant's sole assignment of error states: THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT WHEN THERE WERE GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER DEFENDANTS BREACHED THEIR DUTY TO REPAIR THE SIDEWALK ON WHICH PLAINTIFF FELL. The trial court held that as a matter of law, the defect in the sidewalk was insubstantial, and appellees did not breach their duty of care. Municipalities and private land owners are not liable for insubstantial, minor defects in sidewalks. Kimball v. Cincinnati (1953), 160 Ohio St. 370, Helms v. American Legion, Inc. (1966), 5 Ohio St.2d 60. If the difference in elevation between two sidewalk slabs is two inches or less, there is a rebuttable presumption that the defect is insubstantial. Id. The presumption may be rebutted by showing attendant circumstances sufficient to render the defect substantial. Cash v. Cincinnati (1981), 66 Ohio -5- St.2d 319, McLaughlin v. Ohio Veteran's Children's Home (1987), 37 Ohio App.3d 136, 139. Attendant circumstances might include the condition of the sidewalk as a whole, its pedestrian traffic volume, visibility of the defect, and whether the accident site was such that one's attention could easily be diverted. Cash, supra. Attendant circumstances may include: . . . any distraction that would come to the attention of a pedestrian in the same circumstances and reduce the degree of care an ordinary person would exercise at the time. France v. Parliament Park Townhomes (April 27, 1994), Montgomery App. No. 14264, unreported. The attendant circumstances must be such that a reasonable trier of fact could find that the defect was substantial and unreasonably dangerous, in order to prevent summary judgment for the defendants. Id, Shainker v. City of Cleveland (Mar. 2, 1989), Cuyahoga App. No. 55083, unreported. Both the circumstances which increase the risk of the defect and reduce the risk of the defect must be considered. Stockhauser v. Archdiocese of Cincinnati (Sept. 9, 1994), Montgomery App. No. 14529, unreported. The circumstances here are a nice summer morning with nothing obstructing appellant's view of the defect. Appellant was distracted by a few oncoming pedestrians. Mrs. Polster was looking towards the intersection, which was one house away from where she fell, to see if any vehicles were coming. We find that a reasonable trier of fact could not conclude from these -6- circumstances that the defect was substantial and unreasonably dangerous. This case is distinguishable from Cash, supra, which involved a defect in the crosswalk of a busy downtown intersection, that was twelve to fourteen inches wide and three feet across, which defect was obstructed by a group of pedestrians. The intersection here was in a suburban residential area. Also, appellant was one house away from the intersection. This case is also distinguishable from Turner v. Burkons (Nov. 19, 1992), Cuyahoga App. No. 61406, unreported, where the defect in the sidewalk was blocked from plaintiff's view by defendant's van backing out of the driveway. Oncoming children on bicycles on the sidewalk did not make a variation in the sidewalk of less than two inches an unreasonably dangerous condition. Gurcarkowski v. McPeek Funeral Home (Feb. 9, 1990), Licking App. No. CA-3479, unreported. Thus, the defect in the sidewalk was insubstantial and appellees were not negligent as a matter of law. II. The cross-assignments of error submitted by appellees, Mr. and Mrs. Fumich state: THE TRIAL COURT ERRED IN NOT HOLDING THAT DEFENDANTS FUMICH OWED NO LEGAL DUTY TO PEDESTRIANS TRAVERSING THE SIDEWALK ABUTTING THEIR PROPERTY. THE TRIAL COURT ERRED IN NOT HOLDING THAT THE NEGLIGENCE OF THE PLAINTIFF IN FAILING TO EXERCISE ORDINARY CARE FOR HER OWN SAFETY WAS GREATER THAN THE COMBINED ALLEGED NEGLIGENCE OF THE DEFENDANTS THEREBY BARRING HER RECOVERY AS MATTER OF LAW. -7- The cross-assignment of error of appellees, Mr. and Mrs. Chaney, state: THE TRIAL COURT ERRED BY FAILING TO HOLD THAT DEFENDANTS CHANEY OWED NO DUTY TO PEDESTRIANS ON A PUBLIC SIDEWALK ABUTTING THEIR PROPERTY. In light of our disposition of appellant's assignment of error, we need not address these cross-assignments of error. Accordingly, the decision of the trial court is affirmed. -8- It is ordered that appellees recover of appellant their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLACKMON, P.J., and HARPER, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .