COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74439 NOREEN THERESE SEIFERT, : ACCELERATED DOCKET : Plaintiff-Appellant : JOURNAL ENTRY : vs. : AND : : OPINION GREAT NORTHERN SHOPPING : CENTER, ET AL. : PER CURIAM : Defendant-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 5, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-331566 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: JOHN P. HILDEBRAND Hildebrand, Williams & Farrell 21430 Lorain Road Fairview Park, Ohio 44126 For Defendants-Appellees: THOMAS B. BRALLIAR, JR. Mansour, Gavin, Gerlack & Manos Co., L.P.A. 2150 Illuminating Bldg. 55 Public Square Cleveland, Ohio 44113-1994 -2- PER CURIAM: This case came on for hearing upon the accelerated calendar of our court pursuant to App.R. 11.1 and Loc.R. 25, the record from the common pleas court, and the briefs of counsel. Noreen Therese Seifert appeals from a decision of the common pleas court granting summary judgment in favor of the Great Northern Partnership in connection with injuries she sustained when she tripped and fell in the Great Northern Mall parking lot adjacent to the J.C. Penney store as she prepared to return a pair of shoes on Good Friday, April 14, 1995. She urges the court erred because she alleges genuine issues of material fact exist as to whether the condition of the parking lot itself or its condition when combined with attendant circumstances became unreasonably dangerous, and she maintains she did not assume any risks by traversing it. After careful consideration of the facts in this case and the applicable law, we conclude that the imperfection in the parking lot where Seifert tripped and fell is a minor or trivial defect and that attendant circumstances do not change its character, and, therefore, we affirm the judgment of the trial court. The record before us reveals that around 1:30 p.m. on the afternoon of Good Friday, Seifert drove to the Great Northern Mall to return a pair of shoes she had purchased from the J.C. Penney store there. After she parked in the crowded lot, she got out of her car, walked about three or four cars toward the store entrance, and caught the toe of her left foot in a pavement crack she -3- encountered as she walked into a rise where she alleges the pavement had buckled. She tripped and fell forward and suffered a fracture to her left leg. Photographs of the rise or buckle demonstrate it consisted of a slight crown or ridge extending across the roadway portion of the lot, but no definitive measurements of either the depth of the crack or the height of the rise are shown in those photos. Rather, Seifert's photographs depict a tape measure extended about three or four feet on both sides of the buckled pavement where she tripped, and at the furthest extended point of the tape measure, Seifert shows an approximate four-inch change in grade. In her affidavit Seifert claims she tripped and fell on a four-to-ten-inch rise; her affidavit, however, is contradicted by the photographs. In her deposition, Seifert testified that at the time she fell, the weather was clear and there was no snow on the ground. She also testified that she did not notice the crack as she walked over it, but she would have walked around it if she had seen it. Following her fall, she pulled herself up using a nearby vehicle, drove home, and went with her husband to Southwest General Hospital for treatment. In her complaint against Great Northern, Seifert alleged negligence in maintaining the parking lot and breach of a duty owed to her as an invitee on the premises. Great Northern filed a motion for summary judgment, which the court granted. Seifert now appeals and presents three assignments of error for our review. They are: -4- I. THE DEFECT IN DEFENDANTS-APPELLEES PARKING LOT WAS SUBSTANTIAL AS A MATTER OF LAW CAUSING A QUESTION OF FACT THAT MUST BE PRESENTED TO THE JURY. II. THE ATTENDANT CIRCUMSTANCES WERE SUCH THAT THERE IS A QUESTION OF FACT THAT MUST BE PRESENTED TO THE JURY AS TO WHETHER THE DEFECT IN DEFENDANTS-APPELLEES PARKING LOT WAS SUBSTANTIAL AND UNREASONABLY DANGEROUS. III. PLAINTIFF-APPELLANT MS. SEIFERT WAS NOT AWARE OF THE CHANGE IN ELEVATION OVER WHICH SHE TRIPPED AND FELL AND DID NOT ASSUME ANY RISKS. Seifert contends the court erred in granting summary judgment because she argues first that the condition of the parking lot where she fell constituted a substantial defect; second, that attendant circumstances presented a jury issue as to whether the defect was substantial; and third, that she did not assume any risks of danger in the parking lot. Great Northern argues the court correctly granted summary judgment. In this regard, we recognize that Civ.R. 56 provides in part: *** Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Regarding Seifert's claim of a substantial defect, we recognize that she relies on Kimball v. Cincinnati (1957), 160 Ohio St.370; Gallagher v. City of Toledo (1959), 168 Ohio St. 508 and -5- Cash v. Cincinnati (1981), 66 Ohio St.2d 508, for the proposition that a variation in elevation in a sidewalk of two inches or less is trivial, and she argues therefore that the change in grade here, which she claims is between four and ten inches, is a substantial defect. However, in Helms v. American Legion, Inc. (1966), 5 Ohio St.2d 60, the court stated in its syllabus: The owners or occupiers of private premises are not insurers of the safety of pedestrians traversing those premises, and minor or trivial imperfections therein, which are not unreasonably dangerous and which are commonly encountered and to be expected, as a matter of law do not create liability on the part of such owners or occupiers toward a pedestrian who, on account of such minor imperfection, falls and is injured. (Citations omitted.) Further, in Backus v. Giant Eagle, Inc. (1996), 115 Ohio App.3d 155, the court stated at page 157 in its opinion: Municipalities and private landowners 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. Kimball v. Cincinnati (1953), 160 Ohio St. 370, 52 O.O. 237, 116 N.E.2d 708; Gallagher v. Toledo (1959), 168 Ohio St. 508. 7 O.O.2d 364, 156 N.E.2d 466; Helms v. Am. Legion, Inc. (1966), 5 Ohio St.2d 60, 34 O.O.2d 124, 213 N.E.2d 734. Finally, the court stated in its paragraph two of its syllabus in Jeswald v. Hutt (1968), 15 Ohio St.2d 224: Generally, no liability exists for minor imperfections in the surface of such a parking area--those slight irregularities reasonably to be anticipated in any traveled surface. Here, no definitive measurements of either the crack or the ridge itself are part of the record. The photographs do not -6- demonstrate that the buckled pavement in the parking lot created a triable jury issue, because they depict the ridge as the kind within the classification of a minor imperfection--one reasonably to be anticipated on a traveled surface. In accordance with the case authority presented, we have concluded the condition encountered by Seifert is a minor imperfection. Seifert next argues that the crowded parking lot and heavy traffic on the Holiday weekend constituted attendant circumstances which created an unreasonably dangerous condition and caused the minor defect to become substantial. In Backus, supra, the court stated: *** an attendant circumstance is the circumstance which contributes to a fall and a circumstance which is beyond the control of the injured party. There is a paramount duty upon a pedestrian to look where he may be walking. In McGuire v. Sears, Roebuck & Co. (1996), 118 Ohio App.3d 494, the court described attendant circumstances and stated at 499: * * * there is no precise definition of attendant circumstances, but they generally include any distraction that would come to the attention of a pedestrian in the same circumstances and reduced degree of care an ordinary person would exercise at the time. The attendant circumstancesmust, taken together, divert the attention of the pedestrian, significantly enhance the danger of the defect, and contribute to the fall. As the court stated in Stockhauser v. Archdiocese of Cincinnati (1994), 97 Ohio App.3d 29, at 33: 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. * * * The attendant circumstances must, taken together, divert the attention of the pedestrian, significantly enhance the danger of the defect, and contribute to the fall. (Citations omitted.) -7- Based on all of the facts presented in this case, we are unable to conclude that the crowded parking lot and the heavy traffic constituted attendant circumstances which caused the trivial defect to become substantial. Lastly, Seifert's third assignment of error, that she did not assume any risk of danger, is moot due to our conclusion that the buckled parking lot pavement constituted a minor imperfection. Therefore, we need not decide it. See App.R. 12(A). Accordingly, we have concluded the assignments of error advanced by Seifert are not well taken because no genuine issue of material fact exists and Great Northern is entitled to judgment as a matter of law. Accordingly, the judgment of the trial court is affirmed. 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. TERRENCE O'DONNELL, PRESIDING JUDGE TIMOTHY E. McMONAGLE, JUDGE JAMES D. SWEENEY, JUDGE 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 .