[Cite as Long v. Speedway, L.L.C., 2016-Ohio-3358.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 ANDREA M. LONG                                    :
                                                   :
         Plaintiff-Appellant                       :  C.A. CASE NO. 26851
                                                   :
 v.                                                :  T.C. NO. 14CV1045
                                                   :
 SPEEDWAY, LLC                                     :  (Civil Appeal from
                                                   :   Common Pleas Court)
         Defendant-Appellee                        :
                                                   :
                                                   :
                                              ...........

                                              OPINION

                   Rendered on the ___10th___ day of ___June___, 2016.

                                              ...........

SEAN BRINKMAN, Atty. Reg. No. 0088253 and AARON G. DURDEN, Atty. Reg. No.
0039862, 10 W. Monument Avenue, Dayton, Ohio 45402
     Attorneys for Plaintiff-Appellant

BRIAN J. AUGUSTINE, Atty. Reg. No. 0084818, 250 E. Fifth Street, Suite 310, Cincinnati,
Ohio 45202
      Attorney for Defendant-Appellee

                                            .............

FROELICH, J.

        {¶ 1} Andrea Long appeals from a judgment of the Montgomery County Court of

Common Pleas, which granted summary judgment in favor of Speedway, LLC, on Long’s

claim for personal injuries. For the following reasons, the judgment of the trial court will
                                                                                       -2-


be affirmed.

                              I.   Facts and Procedural History

      {¶ 2} On December 5, 2013, Long “twisted” her knee when she stepped into a

shallow “depression or hole” in the parking lot at Speedway, while walking from the

gasoline pumps toward the store. She filed a complaint against Speedway on February

22, 2014, seeking compensation for her injury. Speedway answered, and the parties

engaged in discovery. On January 13, 2015, Speedway filed a motion for summary

judgment, which was overruled by the trial court on March 12, 2015. Additional discovery

was conducted as the parties prepared for trial, which was set for the week of October 5,

2015. On July 2, 2015, Speedway renewed its motion for summary judgment. The trial

court granted the renewed motion for summary judgment on September 8, 2015.

      {¶ 3} Long appeals, raising one assignment of error which challenges the trial

court’s conclusion that summary judgment was appropriate in this case.

                             II.   Summary Judgment Standard

      {¶ 4} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is no

genuine issue as to any material fact, (2) the moving party is entitled to judgment as a

matter of law, and (3) reasonable minds, after construing the evidence most strongly in

favor of the nonmoving party, can only conclude adversely to that party. Zivich v. Mentor

Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The moving

party carries the initial burden of affirmatively demonstrating that no genuine issue of

material fact remains to be litigated. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526

N.E.2d 798 (1988). To this end, the movant must be able to point to evidentiary materials

of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary
                                                                                          -3-

judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996).

       {¶ 5} Once the moving party satisfies its burden, the nonmoving party may not

rest upon the mere allegations or denials of the party’s pleadings. Dresher at 293; Civ.R.

56(E). Rather, the burden then shifts to the nonmoving party to respond, with affidavits

or as otherwise permitted by Civ.R. 56, setting forth specific facts that show that there is

a genuine issue of material fact for trial.     Id.   Throughout, the evidence must be

construed in favor of the nonmoving party. Id.

       {¶ 6} We review the trial court’s ruling on a motion for summary judgment de novo.

Schroeder v. Henness, 2d Dist. Miami No. 2012 CA 18, 2013-Ohio-2767, ¶ 42. De novo

review means that this court uses the same standard that the trial court should have used,

and we examine the evidence, without deference to the trial court, to determine whether,

as a matter of law, no genuine issues exist for trial. Ward v. Bond, 2d Dist. Champaign

No. 2015-CA-2, 2015-Ohio-4297, ¶ 8.

                  III.   An Owner’s Liability for Imperfections in Pavement

       {¶ 7} In order to prevail on a negligence claim, “one seeking recovery must show

the existence of a duty, the breach of the duty, and injury resulting proximately therefrom.”

Strother v. Hutchinson, 67 Ohio St.2d 282, 285, 423 N.E.2d 467 (1981). The status of a

person who enters the land of another defines the scope of the legal duty owed to that

person. Gladon v. Greater Cleveland Reg. Transit Auth., 75 Ohio St.3d 312, 315, 662

N.E.2d 287 (1996).

       {¶ 8} A customer is a business invitee. As it pertains to business invitees, an

owner’s duty is to keep the premises in reasonably safe condition and to warn of known

dangers. Tarpley v. Aldi, Inc., 2d Dist. Montgomery No. 25366, 2013-Ohio-624, ¶ 7,
                                                                                        -4-

citing James v. Cincinnati, 1st Dist. Hamilton No. C-070367, 2008-Ohio-2708, ¶ 24, and

Eicher v. U.S. Steel Corp., 32 Ohio St.3d 248, 512 N.E.2d 1165 (1987). Liability arises

when an owner has “superior knowledge of the particular danger which caused the injury,”

as an “invitee may not reasonably be expected to protect himself from a risk he cannot

fully appreciate.” Id., citing Uhl v. Thomas, 12th Dist. Butler No. CA2008-06-131, 2009-

Ohio-196, ¶ 13, and LaCourse v. Fleitz, 28 Ohio St.3d 209, 210, 503 N.E.2d 159 (1986).

When a danger is open and obvious, a property owner owes no duty of care to individuals

lawfully on the premises. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-

2573, 788 N.E.2d 1088.

       {¶ 9} Consistent with these principles, municipalities and private landowners are

generally not liable as a matter of law for minor defects in sidewalks and other walkways;

such defects are commonly encountered, and courts have taken the view that pedestrians

should expect such minor variations. Stockhauser v. Archdiocese of Cincinnati, 97 Ohio

App.3d 29, 32-33, 646 N.E.2d 198 (2d Dist.1994), citing Helms v. Am. Legion, Inc., 5 Ohio

St.2d 60, 213 N.E.2d 734 (1966); Gallagher v. Toledo, 168 Ohio St. 508, 156 N.E.2d 466

(1959); Kindle v. Akron, 169 Ohio St. 373, 159 N.E.2d 764 (1959); Kimball v. Cincinnati,

160 Ohio St. 370, 116 N.E.2d 708 (1953); Scheibel v. Lipton, 156 Ohio St. 308, 102

N.E.2d 453 (1951). Ohio courts have developed a general rule that a difference in

elevation between adjoining portions of a sidewalk or walkway that is two inches or less

in height is insubstantial as a matter of law, and thus does not present a jury question on

the issue of negligence. Stockhauser at 33. However, in Cash v. Cincinnati, 66 Ohio

St.2d 319, 421 N.E.2d 1275 (1981), the supreme court clarified that the “two-inch” rule

must be a flexible one, i.e., that courts must also consider any attendant circumstances
                                                                                           -5-

in determining liability for shallow defects in a walkway. Cash characterized the two-inch

rule as a rebuttable presumption that height differences of two inches or less are

insubstantial as a matter of law, which may be rebutted by showing attendant

circumstances sufficient to render the defect substantial. Id.; Stockhauser at 33.

       {¶ 10} “Attendant circumstances” have not been and probably cannot be precisely

defined, but the term has been held 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. “Both circumstances contributing to and

those reducing the risk of the defect must be considered.               The totality of the

circumstances of each case must be examined to determine if, as a whole, they create a

substantial defect.” Stockhauser at 33, citing France v. Parliament Park Townhomes, 2d

Dist. Montgomery No. 14264, 1994 WL 151658 (Apr. 27, 1994). 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.” Id., citing Turner v. Burndale

Gardens Co., 2d Dist. Montgomery No. 12807, 1991 WL 270662 (Dec. 18, 1991). The

attendant circumstances must, taken together, divert the attention of the pedestrian,

significantly enhance the danger of the defect, and contribute to the injury. Id., citing

France, Turner, and others.

       {¶ 11} The liability question at issue in this case relates to the applicability of the

“two-inch rule,” which Long also refers to as the “trivial imperfection rule.”

       {¶ 12} It is undisputed that the depression or hole in the pavement that allegedly

caused Long’s injury was less than two inches deep.           In support of the motion for

summary judgment, the manager of the Speedway stated by affidavit that he investigated
                                                                                        -6-


the depression in the parking lot the day after the incident; he also took pictures of the

area. According to his measurements, he described the depression as follows: “* * *

[T]he depression in the pavement where Ms. Long claims to have sustained her injury is

approximately ¾ of an inch deep at its deepest point. In some places the depression is

only approximately ¼ of an inch deep.        The depression is circular in shape and is

approximately 10” in diameter.”      Long did not dispute these measurements in her

deposition or in her response to the motion for summary judgment. This evidence shifted

the burden to Long to show why summary judgment was not appropriate, i.e. to show

attendant circumstances.

       {¶ 13} Long testified in her deposition that the incident occurred on a Thursday

afternoon and that it was not wet or snowy. She was looking “straight ahead” toward the

front of the store when her foot entered the depression, there was no moving traffic around

her, no cars were “coming across [her] field of vision,” and she was not holding anything

in her hands. She acknowledged these facts in her response to the renewed motion for

summary judgment. However, Long argued that a “reasonable person could determine

that a hole with a ten inch (10”) diameter is not a minor defect and the potential of car

traffic in a parking lot creates attendant circumstances.”

       {¶ 14} The trial court found that Speedway’s evidence gave rise to the rebuttable

presumption that the depth of the hole was insubstantial as a matter of law. Long argues

that reasonable minds could disagree as to whether the depression at issue in this case

was “trivial.” However, in the absence of attendant circumstances, this question has

been settled as a matter of law. See, e.g., Cash, 66 Ohio St.2d 319, 421 N.E.2d 1275.

       {¶ 15} The cases on which Long relies relate to the presence of attendant
                                                                                         -7-


circumstances; none contradicts the existence of a rebuttable presumption that an

owner’s duty of care does not extend to minor imperfections in pavement. See id. (where

a shallow depression extended the length of a crosswalk in a heavily pedestrian-traveled

downtown section of the city and the plaintiff stated that three rows of people between

her and the street obstructed her vision of much of the street in front of her as she waited

for the light to change, reasonable minds could differ as to whether the defect in crosswalk

was so trivial as to relieve liability); Neura v. Goodwill Industries, 9th Dist. Medina No.

11CA0052-M, 2012-Ohio-2351 (customer who was pushing a shopping cart fell, along

with the cart, when the cart struck a concrete crack at the bottom of a ramp to the parking

lot); Thompson v. Kroger Co., 2d Dist. Montgomery No. 13248, 1992 WL 127708 (June

9, 1992) (where customer carried bags of groceries in each arm and, at the same time,

had to contemplate vehicular and pedestrian traffic coming in all directions to one central

sloped entrance and exit from a grocery store, reasonable minds could differ as to

whether a depression in the pavement less than two inches deep was “substantial” and

gave rise to a duty of care on the part of the store).

       {¶ 16} We agree with the trial court’s view that, based on the evidence presented,

the two-inch rule was applicable to this case and established a presumption that the

defect in the sidewalk was insubstantial. Thus, whether there was any genuine issue of

material fact as to Speedway’s liability turned on the existence of attendant

circumstances.

       {¶ 17} Long argues that attendant circumstances existed insofar as “the potential

distraction of vehicle traffic” was present, although she acknowledged in her deposition

that there was no traffic in the parking lot at the time of her encounter with the uneven
                                                                                             -8-

pavement. She cites Neura in support of her position. In finding that the defect was not

“trivial as a matter of law,” the appellate court in Neura stated the following with respect

to the circumstances presented there:

       Mrs. Neura was pushing a full shopping cart down a ramp into a parking lot.

       The cart obstructed her view of the ground and its weight affected her ability

       to control it as it went down the incline.        The crack was not readily

       observable from a distance. Mrs. Neura was entering a parking lot, where

       there was the potential distraction of vehicle traffic. Furthermore, these

       were not circumstances unique to her as the carts were provided by [the

       store] and, furthermore, the crack was at the base of a ramp, which would

       be the expected route of egress from the store for customers using a cart.

Neura at ¶ 16. Although Neura mentioned the potential distraction of vehicle traffic in

the parking lot as one factor in its analysis, it clearly was not the only factor or the primary

focus of the court’s conclusion that the totality of the surrounding circumstances

presented a genuine issue as to the danger of the defect. Thus, Neura does not stand

for the proposition that the potential for traffic alone is sufficient to rebut the presumption

that the owner is not liable for minor defects or unevenness in pavement.

       {¶ 18} Long also argues that Speedway “created the hazard” that caused her

injuries, because it “was responsible for proper paving of the parking lot.” In rejecting

this argument, the trial court noted that Long had “not presented any summary judgment

evidence that would prove as much or support the inference” that Speedway created the

hazard; the court further noted that, even if it could be established that Speedway

“created” the hole, liability nonetheless would not exist without proof that the defect was
                                                                                             -9-


a “non-trivial hazard.” We agree with the trial court that Long’s assertion that Speedway

was liable because “a reasonable person could infer” that Speedway “created” the

“hazard” was legally insufficient to establish a genuine issue of material fact as to its

liability.

         {¶ 19} Finally, Long asserts in her brief that the “severity of her injury” proves that

“the defect was not minor or trivial.” However, the existence of a duty and the existence

of an injury are not intertwined; in other words, proof of an injury, however severe, does

not, in itself, also establish the existence of a duty on the part of the owner of property.

(Similarly, Speedway’s argument that the fact that Long did not fall to the ground

demonstrated that the hole was minor did not, in itself, negate a genuine issue of material

fact as to Speedway’s duty.)

         {¶ 20} The trial court properly concluded that Long had failed to rebut the

presumption and to create a genuine issue of material fact that Speedway was liable for

a minor defect in the pavement of its parking lot, and thus that summary judgment in favor

of Speedway was warranted.

         {¶ 21} The assignment of error is overruled.

                                          IV.    Conclusion

         {¶ 22} The judgment of the trial court will be affirmed.

                                         ............

DONOVAN, P.J. and FAIN, J., concur.

Copies mailed to:

Sean Brinkman
Aaron G. Durden
Brian J. Augustine
Hon. Michael L. Tucker
