COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69007 JAMES HUGHES, et al : : Plaintiffs-appellants : : JOURNAL ENTRY vs. : and : OPINION ALAN KOZAK, et al : : Defendants-appellees : : : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 22, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 264,859 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellants: JOHN C. MEROS LISA SUSTIN FRIEDMAN Attorneys at Law 1370 Ontario Street, #1700 Cleveland, Ohio 44113 For defendant-appellees: MARGARET M. GARDNER Attorney at Law 113 St. Clair Building, #525 Cleveland, Ohio 44114 TIMOTHY E. McMONAGLE, J.: The appellants, James T. and Violet Hughes, appeal from a judgment of the court of common pleas granting summary judgment in favor of defendants-appellees, Alan and Kim Kozak. For the rea- sons stated below we affirm. Plaintiff-appellant James Hughes tripped and fell over a sidewalk change in elevation in front of the defendants-appellees' rental property in Cleveland, Ohio on October 1, 1993 while delivering a "meals-on-wheels" lunch to a tenant at the property. Plaintiff Hughes suffered a shoulder fracture injury as a result of the fall. Plaintiffs filed their cause of action against the defendants on January 31, 1994. The defendants-appellees filed a motion for summary judgment, claiming that the sidewalk defect was insubstantial as matter of law and that there were no attendant circumstances which created a question of fact as to whether the defendants were negligent. Plaintiffs opposed the motion, with affidavits and photographic exhibits attached. The trial court granted the defendants' motion for summary judgment, and the plaintiffs timely appealed. Plaintiffs-appellants present one assignment of error for our review: - 3 - THE TRIAL COURT ERRED TO THE SUBSTANTIAL PRE- JUDICE OF PLAINTIFF-APPELLANT IN GRANTING SUMMARY JUDGMENT TO DEFENDANTS-APPELLEES ALAN AND KIM KOZAK Summary judgment is appropriate when the following factors have been established: "*** (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor." Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66. After a motion for summary judgment has been made and supported by documentary evidence, an adverse party may not rest upon mere allegations or denials of his pleadings, but he must respond with documentary evidence, by affidavit, deposition or otherwise as provided by Civ.R. 56(C), setting forth specific facts showing there is a genuine issue for trial. Citizens Ins. Co. v. Burkes (1978), 56 Ohio App.2d 88. When an action predicated on negligence is subject to a motion for summary judgment, the trial court must determine whether any disputed issues of fact exist concerning the nature of the duty the defendant owed the plaintiff. Wills v. Frank Hoover Supply (1986), 26 Ohio St.3d 186. Appellants argue that summary judgment is not proper in a "trip and fall" case involving a sidewalk defect where the abrupt change in elevation between sidewalk slabs is at least two inches in height and where attendant circumstances exist which - 4 - increase the danger of the defect to the plaintiff. The question before us, then, is whether the defect complained of is "substantial," causing a question of fact as to the negligence of the appellees. In Kimball v. Cincinnati (1957), 160 Ohio St. 370, the court held that the variation in elevation between adjacent sections of a sidewalk, or depressions, where the deviation of one-half of an inch to three-fourths of an inch was insubstantial as a matter of law, will not form a basis of a charge of negligence. The court in Gallagher v. City of Toledo (1959), 168 Ohio St. 508, determined that where the sidewalk slab had dropped down "an inch and a half or two," the "defect complained of was not of such a substantial nature as to impose liability on the defendant municipality. The facts of this case bring it squarely with the rule laid down in Kimball v. City of Cincinnati ***. (Citations omitted)." Thus, the Kimball line of cases established that a change of elevation of two inches or less is insubstantial as a matter of law. The hard and fast two-inch rule was modified by the court in Cash v. Cincinnati (1981), 66 Ohio St.2d 319, when the court distinguished Kimball and held that "when reasonable minds might differ as to whether a defect in a crosswalk is so trivial as to relieve lia- bility, a trial court properly leaves that issue to the jury, and all attendant circumstances must be considered in determining whether such a crosswalk is reasonably safe for pedestrians." Id., paragraph two of the syllabus. The Kimball rule was extended to - 5 - owners and occupiers of private premises in Helms v. American Legion, Inc. (1966), 5 Ohio St.2d 69, where the Ohio Supreme Court held that minor or trivial imperfections which are not unreason- ably dangerous and are commonly encountered and to be expected as a matter of law do not create liability on the part of owners or occupiers of private premises toward persons who fall on account of such minor imperfections. The Ohio Supreme Court in Kimball and in Cash established a two-prong analysis of sidewalk-related injuries. A court must first establish whether a defect is minor as defined in Kimball and Gallagher as "two inches or less." If a defect is not minor (it is a difference in elevation over two inches), there is a question of fact for the jury. If it is minor, the court then must consider whether any other attendant circumstance has such a bearing on the landowner's duty of care and its breach that a jury question remains. Cash modifies the rule of Kimball to the extent that, although a sidewalk depression is less than two inches, the question of negligence may be presented to the jury if other cir- cumstances are presented so that reasonable minds could differ as to whether the sidewalk was unsafe. The appellee/property owners contend that at no time in the court below was there any allegation that the defect was more than two inches, and, therefore, a presumption existed that there was no liability. A careful review of the record before us shows that appellants have failed to produce evidence to support their claim - 6 - that the defect could be considered "substantial" (more than two inches) following the decisions of Gallagher and Kimball. Appel- lants supported their opposition brief with two affidavits, each of which indicated that the change of elevation was two inches. The affidavit of Hans J. Liegbig, AIA, at paragraph four, stated: 4. I have reviewed exhibits, documents and deposition testimony in the present case. I have visited the accident scene at the Kozak property, and observed the condition of the sidewalk after repair. From the photographs of the defect which I reviewed, and based upon information and belief, the abrupt change in elevation involved in this case was approximately two inches in height for the entire width of the sidewalk. The affidavit of Michael Nash states, at paragraphs four and five, as follows: 4. I inspected and photographed the abrupt change in elevation in the sidewalk at this property, where Mr. Hughes fell. I observed that the abrupt change in elevation was caused by a sidewalk slab of concrete that had fallen below the level of the adjoining sidewalk slab. The abrupt change in elevation measured two inches in height, and existed along the entire width of the sidewalk slab. 5. Attached hereto, and incorporated herein, are five photographs I took which show the abrupt change in elevation which measures two inches in height, and covers the entire width of the sidewalk. The photographs are numbered 1 through 5, and fairly and accurately depict the scene where the plaintiff fell *** The photographs appended to both the appellees' motion for summary judgment and the appellants' brief in opposition indicate an elevation difference of two inches or less. Therefore, as a matter of law, the defect complained of in this matter is insub- - 7 - stantial (two inches or less) and would not present a jury ques- tion on the issue of negligence. However, appellants argue further that following the analysis of the court in Cash v. Cincinnati, supra, the two-inch elevation between the adjoining slabs of the sidewalk, when taken together with the surrounding circumstances, does raise a jury question as to whether the sidewalk was reasonably safe. The Cash court determined that attendant circumstances which tend to increase the danger of a defect 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, at 324. To render a minor defect as "walkway substantial," as required for a jury question on the issue as to negligence, "attendant circumstances" must not only be present but must create a greater than normal, and hence substantial, risk of injury, and such attendant circumstances must, taken together, divert the attention of a pedestrian, significantly enhance the danger of the defect and contribute to the fall. Stockhauser v. Arch Diocese of Cincinnati (1994), 97 Ohio App.3d 29 at 33. "Attendant circumstances" may include "any dis-traction 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 (Apr. 27, 1994) Montgomery App. No. 14264, unreported, as cited in Stockhauser at 33. The attendant circumstances must be such that a - 8 - reasonable trier of fact could find that the defect was substantial and unreasonably dangerous in order to prevent summary judgment for the defendants. Shainker v. City of Cleve-land (Mar. 2, 1989), Cuyahoga App. No. 55083, unreported. In this case, appellants allege four attendant circumstances for our consideration: 1) plaintiff-appellant Hughes was carrying the tray of envelopes which blocked his line of sight; 2) the defect was not readily observable; 3) the defect traversed the width of the sidewalk block; and 4) the defect was in violation of the city ordinance. However, in our review of the attendant circumstances, "both circumstances contributing to the risk of the defect and those reducing the risk must be considered in determining whether a defect is 'substantial,' as required to maintain personal injury claim for slip and fall; totality of circumstances of each case must be examined to determine if, as a whole, they create 'sub- stantial defect'." Stockhauser, supra, syllabus at paragraph six. Attendant circumstances present which would reduce the risk of the defect must also be considered. Turner v. Burndale Gardens Co. (Dec. 18, 1991), Montgomery App. No. 12807, unreported, and France v. Parliament Park Townhomes (Apr. 27, 1994), Montgomery App. No. 14264, unreported, cited in Stockhauser, supra, at 35. The question before us is whether the attendant circumstances here diverted the attention of appellant, enhanced the danger and contributed to his fall. Appellant Hughes testified that it was a - 9 - sunny and clear day and that he had traversed the sidewalk a number of times without difficulty. Although he claimed that the defect was not readily observable, he testified that he had seen the defect prior to the day of the fall. Appellant did not offer any testimony that he was distracted by any other vehicular or pedestrian traffic. He testified that there was no one around after his fall. Appellant claimed that he was looking at his van as he walked. He did not testify that any attendant activities of the area distracted him but stated that his view was obstructed by the small, light-weight box which he was carrying in his right hand. Appellant presented no testimony to support his contention that the change of elevation which ran the width of the sidewalk block diverted his attention, enhanced the danger or contributed to his fall. We find that appellants' case is not saved by the attendant circumstance inquiry. We determine that with this set of circum- stances, as supported by the evidentiary material before the trial court, when viewed in a light most favorable to the appellants, reasonable minds could reach only one conclusion. The conclusion which must be reached is that the defect was insubstantial as a matter of law and that the attendant circumstances prevailing at the site of the defect were not sufficient to overcome the pre- sumption of triviality. The appellants make an additional argument that liability attaches to the appellees because they were in violation of an - 10 - ordinance, Cleveland Codified Ordinance 505.11, coupled with Ohio Revised Code 723.011, which empowers a municipality to enact ordinances that require property owners and occupants to keep abutting sidewalks in repair and free from nuisance and empowers a municipality to impose penalties on abutting property owners for failing to keep abutting sidewalks in repair. Appellant Hughes argues the appellee/property owners are liable to a him as a pedestrian if a city ordinance imposes liability upon them. Appellant relies on Section 505.11, City of Cleveland Codified Ordinances, as the basis for the duty owed to him by appellees. In this instance, the argument of the appellant is misplaced. Where a municipality enacts an ordinance imposing liability on a property owner for damages sustained by third parties for an owner's failure to comply with that ordinance, and where that municipality fails to provide the owner with notice of its viola- tion, the ordinance may not be relied upon to impose liability on the owner. Eisenhuth v. Moneyhon (1954) 161 Ohio St. 367. The appellants have failed to show that the appellees were in viola- tion of the ordinance. There is no dispute that appellees did not receive notice from the City of Cleveland that they were in viola- tion of ordinance. There is no evidence before the court that the defect complained of here was a code violation as defined in the City of Cleveland Codified Ordinance 505.11. We find the trial court properly granted summary judgment in this case where the sidewalk change of elevation was two inches and - 11 - the attendant circumstances, when taken together, were not shown to have diverted the attention of the appellant, significantly enhanced the danger of the defect or to have contributed to the fall. The attendant circumstances claimed here were insufficient to make the defect substantial. The judgment of the trial court is affirmed. - 12 - It is ordered that appellees recover of appellants 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 Cuyahoga County 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. LEO M. SPELLACY, C.J. and TERRENCE O'DONNELL, J. CONCUR JUDGE TIMOTHY E. McMONAGLE 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, .