COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67983 : DENNIS POCHATEK : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : BARRY MINOFF, ET AL. : : Defendants-Appellants : : DATE OF ANNOUNCEMENT JULY 20, 1995 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 206986 JUDGMENT: Reversed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANTS-APPELLANTS: GEORGE WILLIAM JOSEPH, JR., ESQ. ALAN B. GLASSMAN, ESQ. 12211 Madison Avenue Law Offices of Jan A. Saurman Lakewood, Ohio 44107 14650 Detroit Avenue Lakewood, Ohio 44107-9946 -2- PATRICIA ANN BLACKMON, J.: Barry and Joan Minoff, defendants-appellants, appeal the judgment in favor of Dennis Pochatek, plaintiff-appellee. The Minoffs assign the following error for our review: THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING DEFENDANTS' MOTION FOR AN INVOLUNTARY DISMISSAL BECAUSE THE EVIDENCE DEMONSTRATED THAT THE HEIGHT DIFFERENTIAL BETWEEN THE ASPHALT PARKING LOT AND CONCRETE LANDING WAS NOT AN UNREASONABLY DANGEROUS CONDITION. Pochatek cross-appeals and assigns the following errors for our review: THE COURT'S FINDING THAT THE PLAINTIFF WAS GUILTY OF 40% NEGLIGENCE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. THE DAMAGES AWARDED TO PLAINTIFF WERE GROSSLY INADEQUATE AS TO INJURIES AND LOST WAGES. Having reviewed the record and the legal arguments presented by the parties, we reverse the decision of the trial court. The apposite facts follow. On the morning of March 11, 1989, Pochatek went to a tanning salon located on the second floor of a commercial building owned by the Minoffs. Pochatek parked his car, walked off the asphalt parking lot, and onto a concrete landing at the base of the steps going into the building. One half to one hour later, after finishing his tanning session, Pochatek exited the building through the same door. Pochatek came down the steps onto the concrete landing and turned right. As he walked from the landing and stepped down onto the asphalt parking lot, his left foot went onto the sloping part -3- of the asphalt. At the point where he stepped, a two and one half inch height differential existed between the concrete slab and the asphalt parking lot. When he made this step his left ankle buckled. He fell backwards onto his right shoulder. He fractured a bone in his left foot and tore the rotator cuff in his right shoulder. Pochatek had traveled in and out of this building prior to March 11, 1989, but did not notice the differential between the concrete landing and the asphalt parking lot. Pochatek filed a complaint against the Minoffs. He alleged negligence and sought compensation for his injuries and lost wages. The case proceeded to a bench trial, and at the close of the plaintiff's case, the Minoffs moved for a directed verdict. The motion was denied, the defense rested, and the trial court entered judgment in favor of Pochatek in the amount of $26,000. This appeal followed. In their sole assignment of error, the Minoffs argue the trial court erred in not granting their motion for a directed verdict. In a trial to a court without a jury, a motion for judgment by a defendant at the close of plaintiff's case is one for dismissal, pursuant to Civ.R. 41(B)(2) and not for a directed verdict, pursuant to Civ.R. 50(A)(4). The distinction is critical because there are two different tests to be utilized by the court. Pursuant to Civ.R. 41(B)(2), the trial court is the trier of fact and is to weigh the evidence. A dismissal pursuant to Civ.R. 41(B)(2) will not be set aside unless it is incorrect as a matter of law or is against the manifest weight of the evidence. Johnson v. Tansky Sawmill Toyota, Inc. (1994), 95 Ohio App.3d 164, 167. Thus, the directed verdict in this case should be treated as -4- a motion to dismiss under Civ.R. 41(B)(2). Therefore, the standard of review is whether plaintiff is entitled to judgment as a matter of law and whether the judgment was against the manifest weight of the evidence. The elements of an action for negligence are the existence of a duty, a breach of the duty, and an injury resulting proximately therefrom. E.g. Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142. [It is a] well-established rule that the possessor of premises owes a duty to an invitee to exercise ordinary or reasonable care for his or her safety and protection. This duty includes maintaining the premises in a reason- ably safe condition and warning an invitee of latent or concealed defects of which the possessor has or should have knowledge. Baldauf v. Kent State Univ. (1988), 49 Ohio App.3d 46 at 47-48 (held that defective nature of steps did not rise to the level of unreasonably dangerous). In Baldauf, the court provided that a landowner is not the insurer of safety on his premises, and will not be held liable for injuries resulting from the conditions of his property absent proof that the condition is unreasonably dangerous. Id. at 49. An unreasonably dangerous condition does not exist when people who are likely to encounter a condition may be expected to take perfectly good care of themselves without further precautions. Id. Such is the case of an ordinary flight of stairs; the danger is obvious, and the knowledge of that condition removes the unreasonableness. Id. The same standard applies to entrance ways to buildings. One who enters a building by traversing a step, -5- described as "abnormally" high, is charged with knowledge of the presence of that abnormality upon exiting. Raflo v. Losantiville Country Club (1973), 34 Ohio St.2d 1. Minor or trivial imperfec- tions on property which are commonly encountered and to be expected do not create unreasonably dangerous conditions. See Helms v. American Legion, Inc. (1966), 5 Ohio St.2d 60; Jennings v. Ameritrust Company (Oct. 6, 1994), Cuyahoga App.No. 66867, unreported. Nonetheless, Pochatek argues the motion for a directed verdict was properly denied on the basis of the "two inch rule." In a line of cases beginning with Kimball v. Cincinnati (1953), 160 Ohio St. 370, the Supreme Court of Ohio established what has become known as the two inch rule. Cash v. Cincinnati (1981), 66 Ohio St.2d 319, 321. The two inch rule merely creates a rebuttable presumption that a defect in a sidewalk of two inches or less in height is insubstantial for purposes of liability for negligence. Stockhauser v. Archdiocese of Cincinnati (1994), 97 Ohio App.3d 29, 33. Furthermore, when the two inch rule is applied to private property, it is modified to the extent that "all the attendant circumstances" must be considered in addition to the height of the sidewalk or walkway, and the duty of private owners is limited to the exercise of ordinary care for the safety of its invitees. Cash at 331-332 (Brown, concurring). The present case is distinguishable from Cash and the other cases applying the two inch rule in as much as it does not involve a sidewalk or a crosswalk. The property involved in this case was -6- a concrete landing and an asphalt parking lot. The height differential between the concrete landing and the asphalt parking lot was the type of minor imperfection commonly encountered traversing in and out of buildings. Compare Raflo (involved an abnormally high step), with Castro v. Kathy Lee's Kitchen (Jan. 2, 1992), Cuyahoga App. No. 59338, unreported (involved a concrete landing and a parking lot). Accordingly, the Minoffs did not as a matter of law create an unreasonably dangerous condition. The mere fact that Pochatek fell and suffered somewhat serious injuries does not turn minor imperfections into unreasonably dangerous conditions. See Jennings, supra. Because there was no unreasonably dangerous condition, the Minoffs were not negligent. Therefore, they are entitled to judgment as a matter of law, and the judgment of the trial court should be reversed. Because this court finds the Minoffs were entitled to judgment, Pochatek's cross-assignments of error concerning damages are moot. Judgment reversed. -7- This cause is reversed. It is, therefore, considered that Appellants recover of Appellee their costs herein. It is ordered that a special mandate be sent to said 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. Exceptions. HARPER, J., and NUGENT, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING 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 journaliza- .