COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71308 SOPHIA MICHALS : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION BISKIND REALTY COMPANY, INC., : ET AL. : : Defendant-appellees : : DATE OF ANNOUNCEMENT : MAY 29, 1997 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-299481 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellees: WILLIAM J. SHRAMEK, ESQ. WILLIAM R. DOSLAK, ESQ. 1650 Midland Bldg. 113 St. Clair Avenue, #530 101 Prospect Avenue, W. Cleveland, OH 44114 Cleveland, OH 44115 DONALD M. DESSEYN, ESQ. Buckley Bldg., 7th Floor 1501 Euclid Avenue Cleveland, OH 44115 - 2 - PATTON, J. Plaintiff-appellant Sophia Michals ("plaintiff") appeals the decision of the trial court granting summary judgment in favor of defendants-appellees Biskind Realty Inc., et al. ("owner") and Cleveland Trinidad Paving Co. ("contractor"). Plaintiff alleges there is a genuine issue of material fact regarding her trip and fall in this premises liability action. On November 14, 1992 at approximately 2:00 p.m. plaintiff, her daughter and her granddaughter went shopping at the Marc's store at the Great Northern Shopping Plaza. At the time, the parking lot at the store was being repaved by the contractor who had been hired by the owner. The contractor had milled the inner ring road. The inner ring road is the road which runs through the inside of the parking lot closest to the store. The effect of the milling was that the grade of the inner ring road was below the grade of the parking lot. As plaintiff approached the store, the daughter dropped her and her granddaughter off at the entrance to the store and parked the car. The three then went into Marc's and shopped for about an hour. Upon exiting the store, plaintiff was walking towards her daughter's car when she approached the milled road and tripped on the ridge separating the milled road from the rest of the parking lot. Plaintiff fell forward, injured herself and was taken to the hospital. - 3 - Subsequently, plaintiff filed a complaint against the owner and contractor. The owner and contractor then filed motions for summary judgment which were granted over the objection of plain- tiff. Plaintiff now appeals the trial court's granting of summary judgment. Plaintiff's sole assignment of error states as follows: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFEN- DANT CLEVELAND TRINIDAD PAVING COMPANY, BISKIND REALTY COMPANY, INC. AND BISKIND DEVELOPMENT COMPANY. Plaintiff argues the trial court erred in granting the motions for summary judgment because the contractor and owner breached their duty of care owed to plaintiff. Plaintiff claims this duty of care was breached by the failure of the contractor and owner to maintain the premises in a reasonably safe condition and their failure to warn plaintiff of the defect; i.e., the two-inch ridge. The owner argues the ridge was a minor defect and no duty to warn was created because plaintiff did not produce evidence sufficient to establish attendant circumstances. The contractor maintains the ridge was an open and obvious danger or a minor defect thus they had no duty to warn of its existence. According to Civ.R. 56(C), summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Construing the evidence most strongly in favor of the non-moving party, if it appears that reasonable minds can only come to one conclusion, - 4 - which is adverse to the non-moving party, then summary judgment may be granted. Harless v. Willis Day Warehousing Co., Inc. (1978), 54 Ohio St.2d 64. In Ohio, the owner or possessor of premises owes a duty to an invitee thereon to exercise ordinary and reasonable care for the invitee's safety and protection, and this duty includes maintaining the premises in a reasonably safe condition and warning an invitee of latent or concealed defects of which the owner or possessor has or should have knowledge. Scheibel v. Lipton (1951), 156 Ohio St. 308, paragraph three of the syllabus. "Courts developed the rule that a difference in elevation between adjoining portions of a sidewalk or walkway that is two inches or less in height is considered insubstantial as a matter of law and thus does not present a jury question on the issue of negligence." Stockhauser v. Archdiocese of Cincinnati (1994), 97 Ohio App.3d 29, 33. The Ohio Supreme Court discussed the "two- inch" rule in Cash v. Cincinnati (1981), 66 Ohio St.2d 319, stating courts must also consider any attendant circumstances in determin- ing liability for defects in a walkway. Id. Thus, Cash estab- lished a rebuttable presumption that differences in height of two inches or less are, as a matter of law, insubstantial. However, this presumption may be rebutted by showing attendant circumstances sufficient to render the defect substantial. Id. All parties agree in the present case that the ridge which plaintiff tripped over was two inches or less. Therefore, the two-inch rule applies - 5 - and we must proceed with the presumption that the ridge in the parking lot was insubstantial. The next question we must address is what constitutes "atten- dant circumstances" and were they present in the instant case. An attendant circumstance "would include any distraction that would come to the attention of a pedestrian in the same circum- stances and reduce the degree of care an ordinary person would exercise at the time." Stockhauser, at 33; citing France v. Parliament Park Townhomes (April 27, 1994), Montgomery App. No. 14264, unreported. If the attendant circumstances present a greater than usual risk of injury, then the otherwise insubstantial defect is actionable. Cash, at 324. Plaintiff claims attendant circumstances existed in the present case. She argues her attention was diverted to people going in and out of the aisleway and that she was looking at her granddaughter who was walking in front of her. In support, plaintiff cites Cash. In Cash, the plaintiff was waiting to cross the street at a busy downtown intersection at lunchtime. She was standing behind three rows of people and directly behind three tall men. Plaintiff watched the traffic light change and moved with the crowd across the street. While crossing the street she tripped in a depression in the crosswalk. Plaintiff stated the three rows of people obstructed her view of the depression. The Court found the heavy vehicular and pedestrian traffic at a busy intersection with - 6 - traffic signal lights in downtown Cincinnati were circumstances allowing reasonable minds to differ on the question of the substantiality of the defect. This case is distinguishable from Cash. Here, there was no heavy traffic either pedestrian or vehicular. There was no traffic light and nothing blocking plaintiff's view. This accident did not occur at a busy downtown intersection at lunchtime but rather in a mall parking lot at about 2:00 p.m. It was a clear, fall day with no structural obstructions blocking plaintiff's view of the ridge. The only circumstance diverting plaintiff's attention was her granddaughter. Plaintiff states she was looking at her granddaughter, who was walking a few feet in front of her, while she was walking to the car. Plaintiff was simply not looking where she was going. After a review of the record we find that the attendant circumstances plaintiff encountered did not present a greater than usual risk of injury. The defect was insubstantial. Moreover, the Supreme Court has held that no liability exists for imperfections or irregularities in the surface of the parking lot. Jeswald v. Hutt (1968), 15 Ohio St.2d 224, at paragraph two of the syllabus. In so holding, the Court stated "a low crown or ridge extending across the joinder of an older and newer part of the parking lot, at the termination of a slight upgrade" was a minor imperfection which should have reasonably been anticipated on a traveled surface. Id., at 226. Similar imperfections have been - 7 - found to be insubstantial and not actionable. See Kimball v. Cincinnati (1953), 160 Ohio St. 370 (variance of less than two inches in heights of adjacent sections of sidewalk); Allen v. Pelech (July 3, 1996), Cuyahoga App. No. 69508, unreported (two- inch hole in parking lot clearly visible); Amend v. Bluemel (Dec. 17, 1992), Cuyahoga App. No. 63450, unreported (crack in sidewalk of less than two inches); Lewis v. Key Market (Aug. 18, 1992), Athens App. No. 1508, unreported (three to four inch lip in parking lot). Construing the evidence in a light most favorable to plain- tiff, we conclude the trial court's decision to grant summary judgment in favor of the owner and contractor was proper. Plain- tiff's first assignment of error is overruled. Plaintiff's second assignment of error states as follows: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ACCEPTING DEFENDANT CLEVELAND TRINIDAD PAVING COMPANY'S REPLY BRIEF IN SUPPORT OF SUMMARY JUDGMENT. Plaintiff argues the trial court erred when it allowed the contractor to file a reply brief to her brief in opposition to summary judgment. Plaintiff claims her motion to strike the reply brief should have been granted because the contractor violated Loc.R. 11(D) of the Court of Common Pleas of Cuyahoga County, General Division by failing to establish the necessary good cause needed to file a reply brief. - 8 - The contractor maintains the trial court did not abuse its discretion in granting leave to file its reply brief. The contrac- tor argues leave was properly granted because the reply brief was filed to provide the court with a concise understanding of the facts and applicable law. Plaintiff claims the necessary good cause was not established because the contractor raised new arguments and cited new law in its reply brief which was not in reference to those issues con- tained in her motion in opposition to summary judgment. In support, plaintiff cites to App.R. 6 which states reply briefs shall be restricted to matters in rebuttal of the answer brief and proper rebuttal is confined to new matters in the answer brief. Appellate rules "govern procedure in appeals to court of appeals from the trial courts of record in Ohio." App.R. 1(A). The reply brief plaintiff complains of was not filed in an Ohio court of appeals therefore the appellate rules are inapplicable. The record reveals the contractor requested leave to file its reply brief and indicated the reply brief was submitted to address points raised in plaintiff's opposing brief. Regarding Loc.R. 11(D), the purpose of the rule is to prevent abuses in responsive pleading. There is nothing in the record which indicates the contractor violated the rule. Purpera v. Asamoto (June 22, 1995), Cuyahoga App. No. 67917, unreported; see also Ohio Bell Telephone v. Barrett (Apr. 30, 1987), Cuyahoga App. No. 53093, unreported. - 9 - Therefore, the trial court did not abuse its discretion by accept- ing the contractor's reply brief. Plaintiff also asserts she was prejudiced by the trial court's acceptance of the contractor's reply brief because this deprived her of presenting an argument in response to the reply brief. However, plaintiff did file a motion in opposition to the reply brief where she had the opportunity to substantively argue the merits of the reply brief but failed to do so. Plaintiff has not demonstrated any prejudice resulted from the trial court's accep- tance of the contractor's reply brief. Hence, plaintiff's second assignment of error overruled. Judgment affirmed. - 10 - 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. JAMES D. SWEENEY, C.J. BLACKMON, J., CONCUR JUDGE JOHN T. PATTON N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App. R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .