COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68903 ELLEN COLLETTE KINGSTON : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION AUSTIN DEVELOPMENT COMPANY, : ET AL. : : Defendant-appellees : : DATE OF ANNOUNCEMENT : DECEMBER 7, 1995 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-274556 JUDGMENT : AFFIRMED IN PART AND REVERSED IN PART DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellees: PAUL M. KAUFMAN, ESQ. RICHARD R. KUEPPER, ESQ. 801 Terminal Tower Kuepper, Walker, Hawkins & 50 Public Square Chulick Cleveland, OH 44113-2203 480 Skylight Office Tower 1660 West Second Street Cleveland, OH 44113-7550 JOHN H. GIBBON, ESQ. Director of Law CAROLYN M. DOWNEY, ESQ. Assistant Law Director 40 Severance Circle Cleveland Heights, OH 44118 PATTON, C.J. Plaintiff-appellant, Ellen Kingston appeals the trial court's ruling granting defendant-appellees, the City of Cleveland Heights and Austin Development Company's motions for summary judgment. On August 31, 1992, Kingston fell and sustained injuries due to a crack on an access sidewalk located in Cleveland Heights, Ohio and owned by Austin. The portion of the access sidewalk that Kingston used was from her bus stop on Mayfield Road to her place of employment, Dillards Department Store located at Severance Circle. Kingston has used this access sidewalk for approximately twenty years. Kingston stated in her deposition that August 31st was a beautiful and sunny day. She did not notice any defects in the sidewalk and she was not carrying anything in her hands. Kingston's two assignment of error are interrelated and will therefore be considered together. They state respectively: I. THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BECAUSE GENUINE ISSUES OF MATERIAL FACT AS TO SUBSTANTIALITY OF THE DEFECT AND NOTICE PRECLUDE DEFENDANTS FROM SUMMARY JUDGMENT. II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AGAINST THE PLAINTIFF BECAUSE REASONABLE MINDS COULD DIFFER AS TO THE DEFENDANTS' ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE DEFECT. Kingston maintains that the trial court erred when it granted Cleveland Heights and Austin's motions for summary judgment because - 3 - material issue of fact exists as to the substantiality of the defect and the constructive knowledge of the defect. Specifically, Kingston contends that the defect in the sidewalk was substantial and it therefore should have been discovered. Consequently a material issue of fact exists as to the negligence of Cleveland Heights and Austin. It is axiomatic that a motion for summary judgment shall only be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Summary judgment shall not be granted unless it appears from the evidence that reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion is made. In reviewing a motion for summary judgment, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317. Moreover, upon motion for summary judgment pursuant to Civ. R. 56, the burden of establishing that material facts are not in dispute, and that no genuine issue of fact exists, is on the party moving for summary judgment. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St. 2d 64, 66. However, in that Civ. R. 56(E) requires that a party set forth specific facts showing that there is a genuine issue for trial, such party must so perform if he is to avoid summary judgment. Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, at paragraph seven of the syllabus. - 4 - In order to establish actionable negligence, a plaintiff must identify a duty owed her by defendants, that the breach of the duty proximately caused the injury and that plaintiff was injured. Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142. First, we will address the summary judgment granted in favor of Cleveland Heights. It is undisputed that a municipality has a duty to maintain public sidewalks pursuant to R.C. 2744.02(B)(3). However, Cleveland Heights denies it had any duty to maintain the access sidewalk Kingston fell on because it was not the owner of the property. Cleveland Heights filed its motion for summary judgment and attached the affidavit of its Building Commissioner, Carl Czaga which stated: "1. The property where the Plaintiff's accident occurred was privately titled to the Austin Co. on August 31, 1992, and the City did not own, maintain or control this property on August 31, 1992. 3. The property where the Plaintiff's accident occurred is not a public sidewalk and is not located on a public right-of-way taken, dedicated, incorporated or otherwise recorded as an irrevocable right of passage for use as a public way in accordance with the City's Zoning Code, Chapter 1103.03(b)(84)." Kingston did not dispute that Cleveland Heights was not the owner of the access sidewalk in her motion in opposition to Cleveland Heights' motion for summary judgment pursuant to Civ.R. 56(E). Viewing the underlying facts in a light most favorable to Kingston we conclude no genuine issue of material fact exists as to the owner of the access sidewalk. Cleveland Heights has - 5 - demonstrated through the rules of civil procedure that it is not the owner of the access sidewalk and therefore it does not owe Kingston any duty pertaining to the maintenance of the access sidewalk. Accordingly, we find the trial court did not err when it granted Cleveland Heights' motion for summary judgment. Next, we address Kingston's contention that summary judgment should not have been granted to Austin. Pursuant to Czaga's affidavit, we find Austin the owner of the access sidewalk where Kingston sustained her injuries. Baldauf v. Kent State Univ. (1989), 49 Ohio App.3d 46, 47-48, stated: [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 reasonably safe condition and warning an invitee of latent or concealed defects of which the possessor has or should have knowledge. Therefore, we find Austin owed Kingston a duty to maintain the sidewalk with ordinary or reasonable care. The Ohio Supreme Court has established what has become known as the "two inch rule" with respect to cracks in sidewalks. 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. Id. The trial court granted Austin's motion based on this rule. - 6 - However, appellant argues that the defect in the sidewalk was more than two inches in width, not height. Therefore, the two inch rule would not apply. We find a material issue of fact exists as to the actual defect in the sidewalk. The only evidence presented in the record as to the defect are photocopies of pictures of the crack in the sidewalk attached to Austin's motion for summary judgment. The photographs show a significant and substantial separation of the sidewalk due to the defect. Therefore, we find the trial court erred when it granted Austin's motion for summary judgment. Kingston's assignment of error relating to Austin is sustained. Judgment affirmed in part and sustained in part. - 7 - 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 Court of Common Pleas 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. DYKE, J. O'DONNELL, J., CONCUR CHIEF JUSTICE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .