COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71954 KATE SCHILL : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION PLEASANT VALLEY APARTMENTS, : ET AL. : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 11, 1997 CHARACTER OF PROCEEDING: APPEAL FROM THE CUYAHOGA COUNTY COMMON PLEAS COURT CASE CV-293374 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: ALAN S. LEVINE (#0021832) 1200 Illuminating Building 55 Public Square Cleveland, Ohio 44113 For Defendant-Appellee: RONALD V. RAWLIN (#0006687) RHOA, FOLLEN & RAWLIN CO. L.P.A. 1850 Midland Building 101 Prospect Avenue, West Cleveland, Ohio 44115-1027 SPELLACY, J.: Plaintiff-appellant, Kate Schill ( appellant ), appeals the judgment of the trial court granting defendants-appellees', -2- Pleasant Valley Apartments, et al. ( appellees ), motion for summary judgment. Appellant assigns the following error for our review: THE TRIAL COURT ERRED, AS A MATTER OF LAW, BY GRANTING DEFENDANT-APPELLEES' MOTION FOR SUMMARY JUDGMENT WHERE GENUINE ISSUES OF MATERIAL FACT REMAIN. Finding appellant's appeal to lack merit, the judgment of the trial court is affirmed. I. On August 4, 1995, appellant filed a complaint against appellees, Pleasant Valley Apartments and Pleasant Valley Associates. In Count I of her complaint, appellant alleges that appellees were negligent in permitting a hazardous and dangerous condition to remain in the parking lot and were negligent in failing to warn their tenants of this hazardous and dangerous condition. Count II of appellant's complaint states that appellees' failure to maintain the parking lot in a safe condition was a violation of R.C. S5321 et seq. On October 25, 1996, appellees filed a motion for summary judgment. Appellant filed her brief in opposition to appellees' motion for summary judgment on December 30, 1996. On December 31, 1996, the trial court granted appellees' motion for summary judgment. II. In the early morning hours of January 12, 1995, appellant left her apartment located at 7656 Broadview Road in Parma, Ohio, to pick her sick grandson up from school. Upon her return, appellant -3- pulled into the parking lot of her apartment complex and parked her car. Appellant exited her vehicle and walked approximately one to two steps before stepping into a depression in the asphalt which caused her to fall to the ground. The depression was less than two inches deep and appellant maintains that the depression was one and a half feet long and seven inches wide. At the time appellant fell, she was watching the ground ahead of her and claims that there was nothing obscuring her view. Appellant was unfamiliar with the specific area in which she parked and was not aware of the depression into which she fell. Appellant, however, noticed broken asphalt in the parking lot. As a result of the fall, appellant sustained injuries, including a broken pelvis. Prior to her fall on January 12, 1995, appellant was aware that the general condition of the parking lot attached to her apartment complex was poor. In fact, appellant had, on a prior occasion, complained to building management that the parking lot had numerous holes in it. Some of the holes were fixed, but not all of them. III. In her sole assignment of error, appellant contends that the trial court erred in granting appellees' motion for summary judgment. In particular, appellant contends that reasonable minds could differ on whether sufficient attendant circumstances existed so as to create a substantial defect allowing the question of negligence to be submitted to the jury. The test for granting a motion for summary judgment is set -4- forth in Civ.R. 56 and in numerous cases interpreting the rule. The law is clear that: Summary judgment is appropriately rendered when no genuine issue as to any material fact remains to be litigated; the moving party is entitled to judgment as a matter of law; it appears from the evidence that reasonable minds can come but to one conclusion; and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Lovsin, et al. V. J.C. Penney Company, Inc., et al. (May 9, 1996), Cuyahoga App. No. 69520, unreported, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. An appellate court must independently review the record to determine if summary judgment was appropriate. Therefore, an appellate court affords no deference to the trial court's decision while making its own judgment. Schwartz v. Bank One, Portsmouth, N.A. (1992), 84 Ohio App.3d 806, 809; Morehead v. Conley (1991), 75 Ohio App.3d 409, 411-412. It is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330. Doubts must be resolved in favor of the nonmovant. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59. 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. -5- This duty includes maintaining the premises in a reasonably safe condition 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). However, municipalities and private land owners are not liable as a matter of law for minor defects in sidewalks and other walkways because these are commonly encountered and pedestrians should expect such variations in the walkways. Stockhauser v. Archdiocese of Cincinnati (1994), 97 Ohio App.3d 29 citing Kimball v. Cincinnati (1953), 160 Ohio St. 370. In furtherance of this concept, courts developed the rule that a difference in elevation between adjoining portions of a sidewalk or walkway which 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, supra at 33. The two-inch rule was clarified by the Ohio Supreme Court in Cash v. Cincinnati (1981), 66 Ohio St.2d 319, which stated that courts must also consider any attendant circumstances in determining liability for defects in the walkway. Id. Thus, Cash established a rebuttable presumption that height differences of two inches or less are insubstantial as a matter of law. The presumption may be rebutted by showing attendant circumstances sufficient to render the defect substantial. Id. It is undisputed in the case sub judice that the depression which caused appellant to fall was less than two inches in height. Thus, the two-inch rule is clearly applicable and establishes a -6- presumption that the defect in the parking lot was insubstantial. Therefore, we must determine whether attendant circumstances were present, creating a substantial risk of injury as well as a substantial defect. Attendant circumstances which create a substantial defect from a minor height variation have not been clearly defined. However, it is clear that all circumstances, good or bad, must be considered. To render a minor defect substantial, attendant circumstances must not only be present, but must create `a greater than normal, and hence substantial, risk of injury.' Stockhauser, supra citing Turner v. Burndale Gardens Co. (December 18, 1991), Montgomery App. No. 12807, unreported. The attendant circumstances must, taken together, divert the attention of the pedestrian, significantly enhance the danger of the defect, and contribute to the fall. Furthermore, both those circumstances contributing to and those circumstances reducing the risk of the defect must be considered. Id. In the present case, appellant argues that because the depression in the parking lot attached to appellant's building was at least one inch deep, over a foot and a half long and six inches wide, the totality of the circumstances render the defect substantial. We disagree. Appellant has failed to present this court with sufficient evidence that the circumstances surrounding appellant's fall, when viewed in their totality, contributed to the risk created by the depression in the parking lot. On the morning of January 12, 1995, -7- appellant stepped out of her vehicle, took two steps and fell into a depression in the parking lot. Appellant stated that nothing was obscuring her view of the ground as she exited her vehicle, did not claim that she was distracted from where she was stepping or that there was any vehicular traffic in the area when she fell. Further, appellant testified that she had previously seen broken asphalt in the parking lot and that she was aware the general condition of parking lot was poor. Appellant also admitted having previously complained about the parking lot conditions. Based on the foregoing, we are unable to find that the attendant circumstances presented would have increased the risk of the defect and created a question for the jury. Rather, we find that the attendant circumstances may have, in fact, decreased the risk of the defect. Accordingly, based upon the totality of the circumstances, as well as evidence that the parking lot was clear and not covered by any foreign article or substance, we do not find that reasonable minds could differ as to whether a substantial defect existed at the time of appellant's fall. Appellant's sole assignment of error is overruled. Judgment affirmed. -8- It is ordered that appellee recover of appellant its 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. PATRICIA A. BLACKMON, P.J. and TERRENCE O'DONNELL J. CONCUR. LEO M. SPELLACY Judge N.B. This 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(B) 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 .