[Cite as Allen v. Rankin, 2013-Ohio-456.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                             PICKAWAY COUNTY

SUSAN M. ALLEN, ET AL.,           :
                                  :
     Plaintiffs-Appellants,       : Case No. 12CA10
                                  :
     vs.                          :
                                  :
JOHN A. RANKIN, DBA               : DECISION AND JUDGMENT
TUSCAN TABLE RESTAURANT, : ENTRY
ET AL.,                           :
                                  :
    Defendants-Appellees.         : Released: 01/29/13
_____________________________________________________________
                            APPEARANCES:

Roy H. Huffer, Huffer & Huffer Co., L.P.A., Circleville, Ohio, for
Appellants.

Carl A. Aveni, CARLILE PATCHEN & MURPHY LLP, Columbus, Ohio,
for Appellee John A. Rankin, dba Tuscan Table Restaurant and Rankin
Enterprises, LLC, Mark H. Gams, GALLAGHER, GAMS, PRYOR,
TALLAN & LITTRELL L.L.P., Columbus, Ohio, for Appellee Melanio D.
Acosta, Ofelia C. Ocasta and Ocasta Properties, LLC, and Michael J.
Valentine and Paul N. Garinger, Columbus, Ohio, for Appellee City of
Circleville.
_____________________________________________________________

McFarland, P.J.:

        {¶1} Susan and Roderick Allen appeal the judgment of the Ross

County Court of Common Pleas, granting summary judgment to Defendant-

Appellees John Rankin dba Tuscan Table Restaurant and Rankin

Enterprises, LLC, Defendant- Appellees Melanio D. Acosta and Ofelia C.
Pickaway App. No. 12CA10                                                       2


Acosta and Acosta Properties, LLC, and Defendant-Appellee City of

Circleville. Having reviewed the record and the pertinent law, we affirm.



                                       FACTS

        {¶2} Appellant Susan M. Allen fell on a sidewalk in the City of

Circleville on December 10, 2008. The sidewalk abutted 122 North Court

Street, which was property owned by Acosta Properties LLC. John Rankin

dba Tuscan Table Restaurant leased 122 North Court Street from the

Acostas. The restaurant and a bank called the Savings Bank were both

located on the same side of North Court Street.

        {¶3} On the incident date, Appellant and her son had eaten lunch at

Wendys, and she asked him to take her to the bank. She had no intention of

entering the Tuscan Table Restaurant, although she had eaten there on

previous occasions. Appellant’s son parallel-parked on Court Street.

Appellant testified on the date of the fall, she got out of her son’s pickup

truck on the passenger side and headed southbound toward the Savings

Bank.

        {¶4} As Appellant walked towards the bank, she encountered a street

sign, a lamp post, and a tree with a metal grate around the base. When she

fell, she was angled from the tree and her head was toward the front entrance

of the Tuscan Table. Appellant broke her right wrist.
Pickaway App. No. 12CA10                                                          3


      {¶5} Appellant denied problems seeing or any distractions as she

walked. It was a cloudy day, but there was no ice or snow. She testified she

had no problems with the lighting conditions. Before she fell, she was

looking straight ahead, not looking down.

      {¶6} In deposition, Appellant could not say whether she tripped over

the grate or the raised portion of the sidewalk. She testified to the height of

the raised portion of the sidewalk in contradictory terms. She first testified

the raised concrete was “two inches or more.” Then she said it “Might have

been an inch and three-fourths. I don’t know.” She further testified “I

would say it is an inch and three-fourths or more than two.” Appellant went

back a few weeks later and saw no changes to the area or the condition of

the sidewalk. This time, she was either inside or standing next to a parked

car and could see the raised concrete from some distance.

      {¶7} Appellant Susan Allen later supplemented her deposition

testimony with a sworn affidavit. She testified that she was distracted by the

street lamp post, the sign post, and the tree. Specifically she stated in her

affidavit that when she exited the truck passenger door, she was immediately

confronted with the lamppost which prevented her from leaving the two-foot

wide brick area abutting the curb in order to get to the wider area of the

concrete sidewalk. After three to four feet, she still could not get inward to

the sidewalk because she was obstructed by the sign post. After another four
Pickaway App. No. 12CA10                                                       4


to five feet, she encountered the grate around the tree and then moved

inward to the sidewalk. Appellant also noted in her affidavit that she was

unable to detect a gradual incline in the concrete when the color and material

all looked the same from above.

      {¶8} Appellant Roderick Allen also testified in deposition that he was

not sure what his wife tripped over, whether it was the concrete sidewalk or

the grate. He testified he and his son went to measure the concrete sidewalk

approximately 30 days after the fall. As far as he could tell, nothing had

been altered or changed. In his opinion, the concrete was heaved up and his

wife stepped into a space where she thought there was concrete but it was

just a gap, east of the tree. He measured a line of raised concrete running

north and south. He testified the concrete was two inches or less where he

measured.

      {¶9} Roderick Allen also supplemented his deposition testimony with

a sworn affidavit. Essentially, Appellant stated that when he testified “two

inches or less” in deposition, he thought the questioning attorney was

referring to the other raised areas of the sidewalk.

      {¶10} Appellants’ Allen filed a complaint in negligence against John

A. Rankin dba Tuscan Table Restaurant, Rankin Enterprises LLC, Tuscan

Table LLC, (hereinafter to be collectively referred to as “Rankin”), Melanio

D. Acosta, Ofelia C. Acosta, and Acosta Properties LLC, (hereinafter to be
Pickaway App. No. 12CA10                                                                               5


collectively referred to as “Acostas”), and the City of Circleville,

(hereinafter “the City”), on December 7, 2010. 1 Appellant Susan Allen

alleged permanent personal injuries, medical expenses past and future, and

pain and suffering. Appellant Roderick Allen alleged loss of consortium and

payment of medical expenses on behalf of his wife.

        {¶11} In the complaint, Appellants did not allege either Rankin,

Acostas, or the City owned the sidewalk where the fall occurred. Appellants

did not allege willful and wanton conduct on the part of the defendants.

Further Appellants did not allege that there was a violation of any city

ordinance.

        {¶12} All Defendants- Appellees filed timely answers and discovery

ensued. Eventually, all defendants filed motions for summary judgment. 2

Defendant-Appellee City of Circleville contended it was entitled to

sovereign immunity and argued in the alternative: (1) the condition of the

concrete sidewalk was open and obvious; (2) it was not liable for minor

imperfections of two inches or less; and (3) there was no evidence of

attendant circumstances. Plaintiffs-Appellants filed a memorandum contra

defendant City of Circleville’s motion for summary judgment, in which it

did not address or dispute the immunity argument.

1
  Appellants also named XYZ LLC, Corporations 1, 2, and 3, as well as Jane Does 1, 2, and 3 as defendants
in the lawsuit.
2
  Defendants-Appellees Rankin joined in and adopted the City and Acostas’ motions for summary
judgment.
Pickaway App. No. 12CA10                                                         6


      {¶13} On April 12, 2012, the trial court issued its decision. The trial

court dismissed the City of Circleville, noting that Plaintiffs-Appellants had

not disputed the City’s argument that it was entitled to immunity. The trial

court also found that Plaintiff Susan Allen was at most, a licensee, and there

was no evidence that Defendants Acostas/Rankin had intent, purpose, or

design to injure Mrs. Allen. The trial court further found that any

unevenness in the sidewalk was open and obvious; any imperfection in the

sidewalk was two inches or less; and, there was no evidence of attendant

circumstances. As such, the trial court granted summary judgment to

Defendants Acosta/Rankin as well.

      {¶14} The trial court further analyzed the facts under the rule set forth

in Eichorn v. Lustig’s Inc., 161 Ohio St. 11, 117 N.E.2d 436 (1954), as to

the duties of abutting property owners. This analysis necessitated discussion

of Circleville City Ordinance 521.06(a) which was not an issue raised by

Plaintiffs-Appellants. Instead, the ordinance was discussed in the motion for

summary judgment of Defendants/Appellees Acosta/Rankin as an alternative

defense.

      {¶15} The trial court also dismissed Appellant Roderick Allen’s loss

of consortium claim.

      {¶16} This appeal followed. Appellant’s sole assignment of error

does not include a challenge to the trial court’s application of the doctrine of
Pickaway App. No. 12CA10                                                     7


sovereign immunity herein which discharged the City of Circleville of

liability.

                        ASSIGNMENT OF ERROR

I.     “THE TRIAL COURT ERRED AS A MATTER OF LAW BY
       GRANTING DEFENDANTS/APPELLEES’ MOTIONS FOR
       SUMMARY JUDGMENT ON THE BASIS THAT THE
       DEFECTIVE SIDEWALK WAS A MINOR DEFECT OF LESS
       THAN TWO (2) INCHES AND THE THREE (3) OBSTACLES
       IMPEDING PLAINTIFF/APPELLANT, SUSAN M. ALLEN’S,
       ACCESS TO THE MAIN AREA OF THE SIDEWALK, PLUS THE
       SAME COLOR OF CONCRETE, WERE INSUFFICIENT
       ATTENDANT CIRCUMSTANCES TO RENDER THE DEFECT
       SUBSTANTIALLY AND UNREASONABLY DANGEROUS.”

                            LEGAL ANALYSIS

                     A. STANDARD OF REVIEW

       {¶17} Initially, we note that appellate courts conduct a de novo review

of trial court summary judgment decisions. See, e.g., Grafton v. Ohio Edison

Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241(1996). Accordingly, an

appellate court must independently review the record to determine if

summary judgment is appropriate and need not defer to the trial court's

decision. See Brown v. Scioto Bd. of Commrs., 87 Ohio App.3d 704, 711,

622 N.E.2d 1153 (1993); Morehead v. Conley, 75 Ohio App.3d 409, 411-12,

599 N.E.2d 786 (1991). Thus, to determine whether a trial court properly

granted a summary judgment motion, an appellate court must review the

Civ.R.56 summary judgment standard, as well as the applicable law.
Pickaway App. No. 12CA10                                                         8


      Civ. R. 56(C) provides, in relevant part, as follows:

      * * * 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. No evidence or stipulation may be considered except as stated in this

rule. A summary judgment shall not be rendered unless it appears from the

evidence or stipulation, and only from the evidence or stipulation, that

reasonable minds can come to but one conclusion and that conclusion is

adverse to the party against whom the motion for summary judgment is

made, that party being entitled to have the evidence or stipulation construed

most strongly in the party's favor.

      {¶18} Pursuant to Civ.R. 56, a trial court may not award summary

judgment unless the evidence demonstrates that: (1) no genuine issue as to

any material fact remains to be litigated; (2) the moving party is entitled to

judgment as a matter of law; and (3) reasonable minds can come to but one

conclusion, and after viewing such evidence most strongly in favor of the

nonmoving party, that conclusion is adverse to the party against whom the

motion for summary judgment is made. See, e.g., Vahila v. Hall, 77 Ohio

St.3d 421, 429-30, 674 N.E.2d 1164 (1997).
Pickaway App. No. 12CA10                                                          9


      {¶19} Appellee Rankin urges us to summarily affirm the trial court’s

decision and decline review of this matter due to Appellants’ failure to

adhere to the requirements of Appellate Rules 12(A)(1)(b) and 16. App.R.

12(A)(1)(b) provides that on an undismissed appeal from a trial court, a

court of appeals shall determine the appeal on its merits on the assignments

of error set forth in the briefs under App.R. 16, the record on appeal under

App.R. 9, and, unless waived, the oral argument under App.R. 21. Relevant

to this discussion is App. R. 16(A)(3), which requires that an appellant

include in its brief a statement of the assignments of error presented for

review, with reference to the place in the record where each error is

reflected. Assignments of error should designate specific rulings which the

appellant challenges on appeal. North Coast Cookies, Inc. v. Sweet

Temptations, Inc., 16 Ohio App.3d 342, 476 N.E.2d 388 (8th Dist. 1984),

paragraph one of the syllabus. They may dispute the final judgment itself or

other procedural events in the trial court. Id. The statement of issues should

express one or more legal grounds to contest the procedural actions

challenged by the assigned errors. Id. See, e.g. Ellis v. Miller, 4th Dist. No.

00CA17, 2001-Ohio-2549, 2001 WL 978868, fn 1, explaining the difference

between “assignments of error” and “statement of issues” and their

relationship to App.R. 16(A)(3). Appellants’ brief reflects a lack of

understanding or possible misapplication of the requirements of the appellate
Pickaway App. No. 12CA10                                                          10


rules. Nevertheless, in the interests of justice, we will address the merits of

Appellants’ arguments.

                              B. NEGLIGENCE

      {¶20} Before we address the specific arguments raised by Appellants’

assignment of error, we note that Appellants filed their action based on

claims of negligence. The trial court’s decision found that Appellant Susan

Allen was a licensee and therefore owed only the duty on the part of

defendants to refrain from willful and wanton conduct. We begin by

reviewing the general Ohio law on negligence and premises liability.

       {¶21} A successful negligence action requires a plaintiff to establish

that: (1) the defendant owed the plaintiff a duty of care; (2) the defendant

breached the duty of care; and (3) as a direct and proximate result of the

defendant's breach, the plaintiff suffered injury. See, e.g., Texler v. D.O.

Summers Cleaners, 81 Ohio St.3d 677, 680, 693 N.E.2d 217 (1998); Jeffers

v. Olexo, 43 Ohio St.3d 140, 142, 539 N.E.2d 614 (1989); Menifee v. Ohio

Welding Products, Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984). If a

defendant points to evidence to illustrate that the plaintiff will be unable to

prove any one of the foregoing elements, and if the plaintiff fails to respond

as Civ.R. 56 provides, the defendant is entitled to judgment as a matter of

law. See Lang v. Holly Hill Motel, Inc., 4th Dist. No. 06CA18, 2007-Ohio-
Pickaway App. No. 12CA10                                                      11


3898, 2007 WL 2191793, at ¶ 19, affirmed, 122 Ohio St.3d 120, 2009-

Ohio-2495, 909 N.E.2d 120.

      {¶22} The existence of a defendant's duty is a threshold question in a

negligence case. See Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79,

2003- Ohio- 2573, 788 N.E.2d 1088, at ¶ 13. In a premises liability case, the

relationship between the owner or occupier of the premises and the injured

party determines the duty owed. See, e.g., Gladon v. Greater Cleveland

Regional Transit Auth., 75 Ohio St.3d 312, 315, 662 N.E.2d 287 (1996);

Shump v. First Continental-Robinwood Assocs., 71 Ohio St.3d 414, 417, 644

N.E.2d 291 (1994).

      {¶23} Ohio law recognizes three distinct classes: trespassers,

licensees, and invitees. Geog v. Jeffers, 4th Dist. No. 94CA1613, 1994 WL

704529 (Dec. 9, 1994),*2. A person who enters the premises of another by

permission or acquiescence, for his own pleasure or benefit, and not by

invitation, is a licensee. Id., citing Provencher v. Ohio Dept. of Transp. 49,

Ohio St. 3d 265, 266 (1990) “* * *[A]s to the duty owing to a license, * * *,

it may be generally stated that a licensee takes his license subject to its

attendant perils and risks, that the licensor owes him no duty except to

refrain from wantonly or willfully injury him, and that he should exercise

ordinary care after discovering him to be in peril. * * *” Hannan v. Ehrlich,
Pickaway App. No. 12CA10                                                       12


102 Ohio St. 176, 185-186, 131 N.E. 504 (1921). See also, Light v. Ohio

University, 28 Ohio St. 3d 66, 68, 502 N.E.2d 611 (1986).

      {¶24} “It is generally held that the occupier of premises, who invites

another to enter upon the premises, for some purpose of interest or

advantage to such occupier, owes to the person so invited a duty to use

ordinary care to have his premises in a reasonably safe condition for use in a

manner consistent with the purpose of that invitation. 38 American

Jurisprudence, 754, Section 96. The reason for imposing this duty, with

respect to invitees and not with respect to licensees or trespassers, is that the

invitee is on the premises for a purpose of interest or advantage to the

occupier.” Geog at *2, citing Lampe v. Magoulakis, 159 Ohio St. 72, 111

N.E.2d 7 (1953). The economic, or tangible benefit test has long been

recognized by Ohio courts in order to distinguish the status of an invitee

from that of a licensee. Id. Provencher, at 266. The status of a passerby on a

public sidewalk is “licensee.” Greenberg v. Markowitz, 8th Dist. No. 93838,

2010-Ohio-2228, 2010 WL 2011005, ¶14; Gall v. Systems Parking, Inc.,

8th Dist. No. 66159, 1994 WL 590532, (Oct. 27, 1994). The duty of care

owed to a licensee is to refrain from willful or wanton conduct, which is

when a defendant “fails to exercise any care whatsoever toward those to

whom he owes a duty of care, and his failure occurs under circumstances in
Pickaway App. No. 12CA10                                                         13


which there is a great probability that harm will result* * *.” Hawkins v. Ivy,

50 Ohio St. 2d 114, 117-118, 363 N.E.2d 367 (1977).

      {¶25} In the case at bar, upon reviewing the facts in the record, we

agree with the trial court that Appellant Susan Allen was a licensee and thus

Appellees Rankin and Acostas owed her no duty, save to refrain from willful

or wanton conduct. Appellant testified she was on the public sidewalk

outside of the Tuscan Table Restaurant, which was located on land owned

by the Acostas. Her purpose was to pass by the area on her way to the

Savings Bank, not to enter the restaurant. She was a passerby on a public

sidewalk, i.e., a licensee. Rankin and Acostas owed her no duty except to

refrain from willfully or wantonly injuring her. In the complaint, Appellants

did not allege willful or wanton conduct on the part of Appellees Rankin and

Acostas. At depositions, Appellants adduced no evidence which would

suggest that Appellees acted willfully or wantonly with regard to their care

and/or maintenance of the sidewalk. As such, we affirm the reasoning of the

trial court which deemed Appellant a “licensee” and found no liability as to

Defendants-Appellees Rankin and Acostas.

      {¶26} In addition, we note that Appellant has failed to definitively

explain or identify the cause of her fall. In deposition, she admitted that it

could have been the metal grate or the concrete sidewalk. “To establish

negligence in a slip and fall case, it is incumbent upon the plaintiff to
Pickaway App. No. 12CA10                                                        14


identify or explain the reason for the fall.” Lang v. Holly Hill Motel, Inc., 4th

Dist. No. 05CA6, 2005-Ohio-6766, ¶17, quoting Stamper v. Middletown

Hosp. Assn., 65 Ohio App.3d 65, 67-68, 582 N.E.2d 1040 (1989) (internal

citations omitted). In Appellants’ brief, “Statement of Facts,” she states:

      “Plaintiff/Appellant Susan M. Allen never specifically knew what caused
      her to fall because of the three (3) circumstances attendant to the upheaval in
      the sidewalk. Plus, the concrete was the same color and texture.”


Appellant admits that she cannot explain or identify the cause of her fall.

According to her deposition testimony she could have fallen on the metal

grate or the concrete sidewalk. In her complaint, she did not allege who

owned the metal grate or the concrete sidewalk. She brought forth no

testimony or other evidence in the trial court proceedings as to the issue of

ownership of the sidewalk where she fell. Regardless of an injured party’s

status, in order to have a duty to keep premises safe for others one must be in

possession and control of the premises. Dysart v. Dysart, 2nd Dist. No.

2009 CA 24, 2010 Ohio 1238, 2010 WL 1138929, ¶40. Wireman v. Keneco

Distrib., Inc., 75 Ohio St. 3d 103, 108, 661 N.E.2d 744, 1996 Ohio 152,

citing Wills v. Frank Hoover Supply, 26 Ohio 3d 186, 497 N.E.2d 1118

(1986). Summary judgment as to all defendants would have been proper on

this basis alone. Our analysis could end here, however, we continue to

address the additional arguments raised in Appellants’ brief.
Pickaway App. No. 12CA10                                                        15


                  1. THE “OPEN AND OBVIOUS” DOCTRINE

      {¶27} Even if Appellant was a business invitee, as contended, we find

no liability on the part of Appellees Rankin and Acostas. A premises owner

or occupier possesses the duty to exercise ordinary care to maintain its

premises in a reasonably safe condition, such that business invitees will not

unreasonably or unnecessarily be exposed to danger. Paschal v. Rite Aid

Pharmacy, Inc., 18 Ohio St.3d 203, 203, 480 N.E.2d 474 (1985). A premises

owner or occupier is not, however, an insurer of its invitees' safety. Id.

While the premises owner must warn its invitees of latent or concealed

dangers if the owner knows or has reason to know of the hidden dangers, see

Jackson v. Kings Island, 58 Ohio St.2d 357, 359, 390 N.E.2d 810 (1979),

invitees are expected to take reasonable precautions to avoid dangers that are

patent or obvious. See Brinkman v. Ross, 68 Ohio St.3d 82, 84, 623 N.E.2d

1175 (1993); Sidle v. Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589, (1968)

paragraph one of the syllabus.

      {¶28} Therefore, when a danger is open and obvious, a premises

owner owes no duty of care to individuals lawfully on the premises. See

Armstrong, at ¶ 5; Sidle, paragraph one of the syllabus. By focusing on duty,

“the rule properly considers the nature of the dangerous condition itself, as

opposed to the nature of the plaintiff's conduct in encountering it.”

Armstrong at ¶13.The underlying rationale is that “the open and obvious
Pickaway App. No. 12CA10                                                                                   16


nature of the hazard itself serves as a warning. Thus, the owner or occupier

may reasonably expect that persons entering the premises will discover those

dangers and take appropriate measures to protect themselves.” Id. at ¶ 5.

“The fact that a plaintiff was unreasonable in choosing to encounter the

danger is not what relieves the property owner of liability. Rather, it is the

fact that the condition itself is so obvious that it absolves the property owner

from taking any further action to protect the plaintiff.” Id. at ¶ 13. Thus, the

open and obvious doctrine obviates the duty to warn and acts as a complete

bar to recovery. Id. at ¶5. Furthermore, the issue of whether a hazard is open

and obvious may be decided as a matter of law when no factual issues are

disputed. Nageotte v. Cafaro Co., 160 Ohio App.3d 702, 710, 2005-Ohio

2098, 828 N.E.2d 683, at ¶ 28, citing Armstrong.

                                          2. “TWO INCH RULE”

         {¶29} Addressing the first prong of Appellants’ assignment of error,

Appellants’ contend that the trial court erred by its finding that the defective

sidewalk at issue was less than two inches. 3 The “two-inch rule” has been

clarified by the Supreme Court of Ohio in Cash v. Cincinnati, 66 Ohio St.2d

319, 421 N.E.2d 1275 (1981). In Cash, the Supreme Court established that

differences in height of two inches or less create a rebuttable presumption


3
  Further, Appellants’ Statement of Issue No. 1 reads: “Were the facts presented to the trial court regarding
the heighth of the defect in controversy, so as not to meet the legal standard required before summary
judgment can be granted?”
Pickaway App. No. 12CA10                                                       17


which may be rebutted by a showing of attendant circumstances sufficient to

render the defect substantial. Cash, at 323-324. What constitutes attendant

circumstances has not been clearly defined; however, the totality of the

circumstances of each case must be examined to determine if the

circumstances create a substantial defect. Stockhauser v. Archdiocese of

Cincinnati, 97 Ohio App. 3d 29, 646 N.E.2d 198 (2nd. Dist. 1994) citing

France v. Parliament Park Townhomes, 2nd. Dist. No. 14264, 1994 WL

151658 (Apr. 27, 1994).

      {¶30} In this matter, Appellants presented conflicting evidence in

deposition as to the heighth of the raised concrete in the sidewalk. Appellant

Susan Allen first testified that the raised portion was “two inches or more.”

Then she testified “It might have been an inch and three-fourths. I don’t

know.” She further testified “I would say it is an inch and three-fourths or

more than two.” Appellant Roderick Allen testified in deposition that the

concrete was two inches or less where he measured. In his supplementary

affidavit, he stated that when he answered “two inches or less” he was

referring to the other raised areas of the sidewalk. The trial court found that

the imperfection in the concrete were minor, two inches or less.

      {¶31} We have said that “[a]n affidavit of a party opposing summary

judgment that contradicts former deposition testimony of that party may not,

without sufficient explanation, create a genuine issue of material fact to
Pickaway App. No. 12CA10                                                          18


defeat the motion for summary judgment.” Galyean v. Greenwell, 4th Dist.

No. 05CA11, 2007-Ohio-615, 2007 WL 453274, ¶38, quoting Byrd v. Smith,

110 Ohio St. 3d 24, 2006-Ohio-3455, 850 N.E.2d 47 (2006). In this matter,

both Appellants submitted affidavits to supplement their testimony. It

appears that the trial court disregarded the affidavits or found them not have

contained sufficient explanations for the contradiction of both Appellants’

deposition testimony, so as to create a genuine issue of material fact. Upon

review of the facts and circumstances, we agree with the trial court’s finding

that the imperfections in the concrete were minor.

                      3. “ATTENDANT CIRCUMSTANCES”

      {¶32} The second prong of Appellants’ sole assignment of error

contends that the trial court erred by its finding that there were insufficient

attendant circumstances to render the sidewalk substantially and

unreasonably dangerous. “Attendant circumstances” may also create a

genuine issue of material fact as to whether a hazard is open and obvious.

See Lang, 2007-Ohio-3898, at ¶ 24; Cummin v. Image Mart, Inc., 10th Dist.

No. 03AP1284, 2004-Ohio-2840, 2004 WL 1220041, at ¶ 8, citing McGuire

v. Sears, Roebuck & Co., 118 Ohio App.3d 494, 498, 693 N.E.2d 807

(1st.Dist. 1996). An attendant circumstance is a factor that contributes to the

fall and is beyond the injured person's control. See Backus v. Giant Eagle,

Inc., 115 Ohio App.3d 155, 158, 684 N.E.2d 1273(7th Dist.1996). “The
Pickaway App. No. 12CA10                                                       19


phrase refers to all circumstances surrounding the event, such as time and

place, the environment or background of the event, and the conditions

normally existing that would unreasonably increase the normal risk of a

harmful result of the event.” Cummin at ¶8, citing Cash. An “attendant

circumstance” has also been defined to include “any distraction 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.” McGuire,

118 Ohio App.3d at 499, 693 N.E.2d 807.

      {¶33} Attendant circumstances do not include the individual's activity

at the moment of the fall, unless the individual's attention was diverted by an

unusual circumstance of the property owner's making. See Id. at 498, 693

N.E.2d 807. Moreover, an individual's particular sensibilities do not play a

role in determining whether attendant circumstances make the individual

unable to appreciate the open and obvious nature of the danger. As the court

explained in Goode v. Mt. Gillion Baptist Church, 8th Dist. No. 87876,

2006-Ohio-6936, 2006 WL 3804534, at ¶ 25: “The law uses an objective,

not subjective, standard when determining whether a danger is open and

obvious. The fact that appellant herself was unaware of the hazard is not

dispositive of the issue. It is the objective, reasonable person that must find

that the danger is not obvious or apparent.” Thus, we use an objective

standard to determine whether the danger associated with the condition was
Pickaway App. No. 12CA10                                                          20


open and obvious. Furthermore, the question of whether a danger is open

and obvious is highly fact-specific. Stanfield v. Amvets Post No. 88, 2nd

Dist. No. 06CA35, 2007-Ohio-1896, 2007 WL 1174445, at ¶ 12; Henry v.

Dollar General Store, 2nd Dist. No.2002CA47, 2006-Ohio-206, 2006 WL

156697, at ¶ 16.

      {¶34} Here, Appellant argues that attendant circumstances distracted

her as she walked, namely, the street lamp post, the sign post, the tree. She

also asserts the color and texture of the concrete made it difficult for her to

see. Taken together, Appellants argue these created attendant circumstances.

The trial court found the condition of the concrete to be open and obvious

and found no evidence of attendant circumstances. Again, Appellant’s

supplementary affidavit directly contradicted her deposition testimony. Her

deposition testimony was clear that she had no distractions as she walked.

She never mentioned the color or texture of the concrete. Her affidavit,

however, explicitly described the street lamp, sign post, and tree as

distracting her at various intervals as she walked. Again, the trial court

apparently did not find her explanation of the discrepancy in testimony to be

sufficient so as to create a genuine issue of material fact. Upon review of

the facts and circumstances, we affirm the finding of the trial court that there

was no evidence of attendant circumstances.
Pickaway App. No. 12CA10                                                      21


                             C. EICHORN ANALYSIS

      {¶35} Having affirmed the trial court’s previous findings, it would be

sufficient to end our analysis as to the liability of Appellees Rankin and

Acosta at this juncture. However, in its decision, the trial court analyzed the

facts and circumstances herein in conjunction with the law set forth in

Eichorn v. Lustig’s Inc., 161 Ohio St. 11, 117 N.E.2d 436 (1954). And,

although not directly set forth as an assignment of error, Appellants’

Statement of Issue No. 2 states: “When is it appropriate to grant summary

judgment in favor of a Defendant in a defective sidewalk case when

considering the application of one of the exceptions to the general rule”?

Given the arguments made in Appellant’s memoranda contra the various

motions for summary judgment and the trial court’s analysis under Eichorn,

we construe this as a challenge to the trial court’s decision applying the law

in Eichorn.

      {¶36} Normally, the owner of property that abuts a public sidewalk is

not liable for injuries sustained by pedestrians using the sidewalk because

the duty to keep streets, including sidewalks, in repair rests upon

municipalities and not upon the abutting owners. Morgan v. Gracely, 4th

Dist. No. 05CA36, 2006-Ohio-2344, 2006 WL 1304858, ¶9; Eichorn.

However, there are three exceptions to this rule:
Pickaway App. No. 12CA10                                                      22


              First, an abutting landowner will be liable for a
      pedestrian’s injuries if a statute or ordinance imposes upon him
      a specific duty to keep a sidewalk adjoining his property in
      good repair. Crowe v. Hoffmann, 13 Ohio App.3d 254,255, 468
      N.E.2d 1120, 1122(1983). Second, the landowner will be liable
      if his affirmative acts created or negligently maintained the
      defective or dangerous condition causing the injury. Id., citing
      Eichorn, supra. Third, the landowner will be liable if he
      negligently permitted the defective or dangerous condition to
      exist ***for some private use or benefit. Id.

      {¶37} Appellants’ Issue No. 4 also reads: “When does a municipal

ordinance create a specific mandatory duty?” We construe Appellants as

making the argument here, that Appellees Rankin and Acostas are liable for

Appellant Susan Allen’s injuries by virtue of the first exception to the

Eichorn rule. Appellants’ contend on appeal that the City of Circleville,

Codified Ordinance 521.06(a) imposes upon Appellees Rankin and Acostas

a specific duty to keep the sidewalk where Susan Allen fell in good repair.

The ordinance reads as follows:

             (a) No owner or occupant of abutting lands shall fail to
      keep the sidewalks, curbs or gutters in repair and free from
      snow, ice, or any nuisance. On any claim presented for bodily
      or property damage on the sidewalks, curbs or gutters, the
      adjoining or abutting property owner shall be held liable in tort
      for such damages to another. Alternatively, should the City of
      Circleville be called upon to make such payment to a third-
      party, the City will look to the adjoining or abutting landowner
      for contribution and indemnity.
             (b) Whoever violates this section is guilty of a minor
      misdemeanor.
Pickaway App. No. 12CA10                                                     23


      {¶38} In the case at bar, the trial court noted that Appellants

never asserted in its complaint violation of the above city ordinance as

a basis for liability. In discovery, Appellants never produced evidence

that Appellees Rankin and Acostas violated the city ordinance. The

ordinance was brought to light only as an alternative basis for defense

in Appellees’ Acostas’ motion for summary judgment. When the

ordinance was cited, Plaintiffs-Appellants only response was:

      “The City Ordinance 521-06(a) puts the liability on the property
      owner for any injuries to pedestrians. Defendants-Acostas have
      set forth the entirety of Ordinance 521-06(a). It is respectfully
      submitted that Legislative laws supersede common law.”

      At no time did Appellants move to amend their complaint to

assert this claim. At no time did Appellants further develop an

argument with regard to the city ordinance when the theory was raised

in motion practice. Appellants did not raise the issue of the ordinance

in the trial court and they cannot now raise the issue. Sekora v.

General Motors Corp., 61 Ohio App.3d 105, 112-113, 572 N.E.2d

184, (11th Dist. 1989). Appellants have waived any error with regard

to the application of the city ordinance at the trial court level. Id. See

also, Kalish v. Trans World Airlines, 50 Ohio St.2d 73, 362 N.E.2d

994 (1977).
Pickaway App. No. 12CA10                                                     24




                           D. SOVEREIGN IMMUNITY

      {¶39} Finally, we note Appellants’ sole assignment of error does not

dispute the grant of summary judgment to the City of Circleville, based on

the doctrine of sovereign immunity.        We further note that Appellants’

“Statement of Issues Presented for Review” does not specify the immunity

statute, R.C. 2744.02, but lists as Issue No. 3: “When should a statute be

held to be unconstitutional and, therefore, inapplicable?” We construe this

as a challenge to the immunity statute and the grant of summary judgment to

the City of Circleville on this basis. Therefore, for clarification and in the

interests of justice, we will briefly address the application of the doctrine of

sovereign immunity herein and the constitutionality of the immunity statute.

      {¶40} R.C. Chapter 2744 establishes a three-step analysis for

determining whether a political subdivision is immune from liability.

Martin v. Ironton, 4th Dist. No.07CA37, 2008-Ohio-2842, 2008 WL

2381737, ¶9. See Cramer v. Auglaize Acres, 113 Ohio St.2d 266, 270,

2007-Ohio-1946, 865 N.E.2d 9, at ¶14; Cater v. Cleveland, 83 Ohio St. 3d

24, 28, 697 N.E.2d 610 (1998). First, R.C. 2744.02(A)(1) sets forth the

general rule that a political subdivision is immune from tort liability for acts

or omissions connected with governmental or proprietary functions. See

Cramer; Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790
Pickaway App. No. 12CA10                                                          25


N.E.2d 781, at¶7. Second, R.C. 2744.02(B) lists five exceptions to the

general   immunity     granted    to   political   subdivisions    under    R.C.

2744.02(A)(1). See Cramer; Ryll v. Columbus Fireworks Display Co., 95

Ohio St.3d 467, 470, 2002-Ohio-2584, 769 N.E.2d 372, at ¶25. Finally,

R.C. 2744.03(A) sets forth several defenses that a political subdivision may

assert if R.C. 2744.02(B) imposes liability. See Cramer; Colbert at ¶9.

Whether a political subdivision is entitled to statutory immunity under

Chapter 2744 presents a question of law. See, e.g., Conley v. Shearer, 64

Ohio St. 3d 284, 292, 595 N.E.2d 862 (1992); Murray v. Chillicothe, 164

Ohio App.3d 294, 2005-Ohio-5864, 842 N.E.2d 95, at ¶11 (4th Dist.).

      {¶41} To the extent that Appellants’ brief challenges the grant of

summary judgment to Defendant- Appellant City of Circleville based on

sovereign immunity, which it did not dispute at the trial court level, and now

contends that the immunity statute is unconstitutional, we disagree. The trial

court found that the facts of this case do not qualify so as to invoke any of

the exceptions to immunity as defined in R.C. 2744.02(B). We agree.

Furthermore, it is well-settled that the sovereign immunity statute is

constitutional. In O’Toole v. Denihan, 118 Ohio St. 3d 374, 2008-Ohio-

2574, 889 N.E.2d 505 (2008), at ¶95, the Supreme Court of Ohio stated: “In

reviewing our precedent and that of numerous appellate courts, we conclude

that this issue is one that is settled and need not be discussed any further in
Pickaway App. No. 12CA10                                                      26


this case.” Cf. Fahnbulleh v. Strahan, 73 Ohio St. 3d 666, 653 N.E.2d 1186

(1995); Fabrey v. McDonald Village Police Dept., 70 Ohio St. 3d 351, 639

N.E.2d 31, (1994); Bundy v. Five Rivers Metroparks, 152 Ohio App. 3d 426,

2003-Ohio-1766, 787 N.E.2d 1279, ¶45-47. See, more recently, Fitzgerald

v. Cuyahoga, 8th Dist. No. 97772, 2012-Ohio-2638, 2012 WL 2150896,

at¶6. Therefore, we affirm the decision of the trial court granting summary

judgment to the City of Circleville on this basis.

                        E. LOSS OF CONSORTIUM

      {¶42} A claim for loss of consortium is derivative in that the claim is

dependent upon the defendant having committed a legally cognizable tort

upon the spouse who suffers bodily injury. Bowen v. Kil-Kare, Inc., 63 Ohio

St. 3d 84, 88 585 N.E.2d 384 (1992). While a spouse’s claim for loss of

consortium is separate and distinct, the non-injured spouse cannot recover

for loss of consortium is there is no cognizable claim under Ohio law that

would be available to the injured spouse. LeMaster v. Davis, 4th Dist. No.

95CA30, 1996 WL 174627 (Apr.10, 1996); See also, Gallimore v.

Children’s Hosp., 67 Ohio St.3d 244, 617 N.E.2d 1052 (1993). When the

trial court granted summary judgment to the defendants and effectively

dismissed all claims of Plaintiff Susan M. Allen, the trial court also correctly

ruled that Appellant Roderick Allen’s loss of consortium claim should be

dismissed.
Pickaway App. No. 12CA10                                                     27




                               CONCLUSION

      {¶43} Upon our de novo review of the facts and circumstances, we

find that there were no genuine issues of material fact and all defendants

were entitled to summary judgment as a matter of law. For the foregoing

reasons, we overrule Appellants’ assignment of error and affirm the

judgment of the trial court.

                                             JUDGMENT AFFIRMED
Pickaway App. No. 12CA10                                                        28


                           JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellees recover of Appellants 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 Pickaway County Common Pleas Court to carry this judgment into
execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.

      Abele, J., and Kline, J.: Concur in Judgment and Opinion.


                           For the Court,

                           BY: _____________________________
                               Matthew W. McFarland
                               Presiding Judge


                           NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
