[Cite as Mansfield v. Defiance, 2013-Ohio-1391.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              DEFIANCE COUNTY




THERESA MANSFIELD, ET AL.,

        PLAINTIFFS-APPELLANTS,                            CASE NO. 4-12-20

        v.

CITY OF DEFIANCE, OHIO, ET AL,                            OPINION

        DEFENDANTS-APPELLEES.




                Appeal from Defiance County Common Pleas Court
                          Trial Court No. 11-CV-41656

                                     Judgment Affirmed

                              Date of Decision: April 8, 2013




APPEARANCES:

        Danny A. Hill, II for Appellants

        William P. Lang for Appellee, City of Defiance
Case No. 4-12-20


SHAW, J.

       {¶1} Plaintiffs-appellants, Theresa and James Mansfield (collectively

referred to as the “Mansfields”), appeal the August 2, 2012 judgment of the

Defiance County Court of Common Pleas granting the motion for summary

judgment filed by defendants-appellees, the City of Defiance and Transtar

Builders and Developers, Inc., (collectively referred to as “the City”), and

dismissing the Mansfields’ complaint.

       {¶2} On December 4, 2009, Theresa was injured when she tripped on a

raised concrete seam located in a crosswalk on a public street in downtown

Defiance.    Theresa suffered a hairline fracture of her knee cap and received

multiple stitches on her face as a result of the fall.

       {¶3} On December 2, 2011, Theresa filed a complaint alleging the City to

be negligent for failing to repair the alleged defect in the crosswalk.      The

complaint also listed Theresa’s husband, James, as a plaintiff on a loss of

companionship and consortium claim.

       {¶4} The City filed an answer generally denying the Mansfields’ claims.

       {¶5} During the course of discovery, Theresa was deposed by the City and

affidavits of Theresa and the Defiance City Engineer were filed.

       {¶6} The parties subsequently filed cross-motions for summary judgment.




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       {¶7} On August 2, 2012, the trial court granted the City’s motion for

summary judgment and dismissed the Mansfields’ complaint. Specifically, the

trial court found that Theresa and James failed to submit evidence demonstrating

that the City was negligent. The trial court also applied the so-called “two inch

rule” and found the defect to be insubstantial as a matter of law. The trial court

further found that Theresa failed to present evidence establishing that attendant

circumstances were present at the time of her fall to render the defect substantial.

See Cash v. Cincinnati, 66 Ohio St.2d 319, 323-24 (1981)(stating that a difference

in height of two inches or less in the concrete of the public walkway create a

presumption that the defect is insubstantial and not actionable as a matter of law

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

render the defect substantial).

       {¶8} The Mansfields filed this appeal, asserting the following assignment

of error.

       THE TRIAL COURT ERRED IN GRANTING SUMMARY
       JUDGMENT IN FAVOR OF DEFENDANT-APPELLEE [sic],
       CITY OF DEFIANCE, ET. AL, AS THERE REMAIN
       MATERIAL ISSUES OF FACT THAT SHOULD BE
       DETERMINED BY A JURY.

       {¶9} In their sole assignment of error, the Mansfields argue that the trial

court erred when it granted the City’s motion for summary judgment.




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Specifically, the Mansfields maintain that genuine issues of material fact exist as

to whether attendant circumstances were present to render the defect substantial.

       {¶10} Initially, we note that an appellate court reviews a grant of summary

judgment de novo, without any deference to the trial court. Conley–Slowinski v.

Superior Spinning & Stamping Co., 128 Ohio App.3d 360, 363 (1998). A grant of

summary judgment will be affirmed only when the requirements of Civ.R. 56(C)

are met. This requires the moving party to establish: (1) that there are no genuine

issues of material fact, (2) that the moving party is entitled to judgment as a matter

of law, and (3) that reasonable minds can come to but one conclusion and that

conclusion is adverse to the non-moving party, said party being entitled to have

the evidence construed most strongly in his favor. Civ.R. 56(C); see Horton v.

Harwick Chem. Corp., 73 Ohio St.3d 679, 1995-Ohio-286, paragraph three of the

syllabus.

       {¶11} The party moving for summary judgment bears the initial burden of

identifying the basis for its motion in order to allow the opposing party a

“meaningful opportunity to respond.” Mitseff v. Wheeler, 38 Ohio St.3d 112,

syllabus (1988). The moving party also bears the burden of demonstrating the

absence of a genuine issue of material fact as to an essential element of the case.

Dresher v. Burt, 75 Ohio St.3d 280, 292, 1996-Ohio-107. Once the moving party

demonstrates that he is entitled to summary judgment, the burden shifts to the non-


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moving party to produce evidence on any issue which that party bears the burden

of production at trial. See Civ.R. 56(E).

       {¶12} Generally, municipalities are not liable as a matter of law for minor

defects in sidewalks and other walkways, including crosswalks, because these are

commonly encountered and pedestrians should expect such variation in the

walkways. The Second Appellate District has explained this rule, often called the

“two-inch rule,” as follows:

       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. In Cash v. Cincinnati, 66 Ohio St.2d 319, 20 O.O.3d
       300, 421 N.E.2d 1275, the court clarified the “two-inch” rule,
       stating that courts must also consider any attendant
       circumstances in determining liability for defects in the
       walkway. * * * Thus Cash established a rebuttable presumption
       that height differences of two inches or less are insubstantial
       [and not actionable] as a matter of law. The presumption may
       be rebutted by showing attendant circumstances sufficient to
       render the defect substantial.

Stockhauser v. Archdiocese of Cincinnati, 97 Ohio App.3d 29, 33 (2d Dist. 1994)

(citations omitted). Attendant circumstances may make an insubstantial defect

actionable if it is reasonably foreseeable that an insubstantial defect will cause an

injury. See Gates v. Speedway Superamerica, L.L.C., 8th Dist. No. 90563, 2008–

Ohio–5131, ¶ 23. “The attendant circumstances must be such that a reasonable

trier of fact could find that the defect was substantial and unreasonably dangerous


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in order to prevent summary judgment for the defendants.”          Boros v. Sears,

Roebuck & Co., 8th Dist. No. 89299, 2007–Ohio–5720, ¶ 14.                 “Attendant

circumstances may include the condition of the sidewalk as a whole, the volume of

pedestrian traffic, the visibility of the defect, and whether the accident site was

such that one’s attention could easily be diverted.” Armstrong v. Meade, 6th Dist.

No. L–06–1322, 2007–Ohio–2820, ¶ 14.

       {¶13} The following evidence was before the trial court upon its

consideration of the cross-motions for summary judgment.

       {¶14} In her deposition, Theresa testified that on December 4, 2009 at

approximately 6:50 pm, she was with four other people and was standing at the

corner of First and Clinton streets. She explained that the group waited for the

crosswalk signal to indicate that it was safe to cross, and then observed that the

traffic had stopped. Theresa recalled that she walked off the handicap ramp and

began to cross the street. Theresa surmised that the left toe of her shoe must have

caught on the raised asphalt seam in the crosswalk.        Theresa stated that she

tripped, flew through the air, and fell on the street. Theresa testified that she

suffered a hairline fracture of her kneecap and injuries to her face, which required

stitches.

       {¶15} Theresa also filed an affidavit and averred the following:

       (1) Affiant is one of the Plaintiffs in the above titled action.


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        (2) Affiant further states that the attached exhibit is a true and
        accurate representation of the crosswalk and street in the same
        state of dis-repair, and in the same condition in the [sic] as they
        were on the day she suffered her injuries as alleged in the
        complaint filed in the above captioned matter.1

        (3) Affiant further states she tripped over the improperly
        repaired and maintained crosswalk area of the roadway,
        approximately two to three feet into the street, well after the
        brick handicapped ramp had ended.

        (4) Affiant further states that she tripped over the improperly
        repaired and maintained crosswalk area of the roadway,
        approximately two to three feet into the street, on the raised
        portion of the asphalt, as indicated by the circled areas in the
        attached Exhibit.

(Aff. Apr. 4, 2012).

        {¶16} The City submitted an affidavit from Lee Rausch, the Defiance City

Engineer, who averred the following.

        1. I am and was, at all times material, the City Engineer for
        the City of Defiance. I am a licensed Ohio Professional Engineer
        (P.E.).

        2. I am familiar with the crosswalk on Clinton St. at the
        corner of First St. and Clinton St.

        3. Records of complaints regarding the safety of the streets in
        Defiance, Ohio are kept at my direction, and are under my
        general control in the ordinary course of business as the City
        Engineer.




1
  The exhibits referred to in Theresa’s affidavit were photographs of the crosswalk. The record indicates
that Theresa took the photographs on December 6, 2009, during the day. The photographs depict a raised
seam between two layers of asphalt which extends the entire width of the crosswalk.

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      4. Any resurfacing of a city street needs approval from the
      City Engineering Department and the records are kept at the
      Engineering Department.

      5. There was no record of any complaint about the safety of
      this crosswalk made with the City Engineer’s office prior to
      December 4, 2009. The City Engineer’s office did not receive
      any notice of a defect in this street crosswalk.

      6. It is my opinion that when a citizen makes a complaint
      about a dangerous area of a city street, that complaint is either
      routed to the Engineering Department or the Street Department.

      7. I was never notified that any member of the Street
      Department received a complaint about the safety of this
      crosswalk.

      8. I am familiar with the standard operating procedure of the
      Street Department when it comes to repairing city streets to
      remove dangerous areas.

      9. It is standard operating procedure for the Street
      Department to repair any seam in a street that is above one inch,
      and presents a danger to pedestrians.

      10. The standard operating procedure is to patch the seam to
      remove any dangerous condition, or to resurface the street if a
      patch will not suffice. If a patch is not a viable option due to
      winter weather, the standard operating procedure is to place a
      barricade at the dangerous area to alert the public, until the
      area can be patched.

      11. One of my responsibilities as City Engineer is to be aware
      of the conditions and repairs relating to city streets.

      12. Prior to December 4, 2009 there was no recent construction
      that took place at this intersection.

      13. The Street Department made no repair, nor did they
      barricade the seam on Clinton St. prior to December 4, 2009.

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         The Street Department continuously reviews the condition of
         city streets, and determined no dangerous area existed. No
         complaint was ever received regarding this crosswalk.

         14. In 2008 all city streets were evaluated to determine which
         streets needed resurfacing, the evaluation was based on the
         conditions of the streets. Neither the Street Department nor the
         Engineering Department determined that Clinton St. was of any
         danger to the public, or that it needed resurfaced immediately.

         15. I have received the plaintiff’s provided photographs of the
         seam in Clinton St., which is something that I often do and have
         been trained to do as a civil engineer to preliminarily evaluate
         and determine the existence of hazards in the streets. In my
         determination, the seam is less than one inch high, and provided
         no danger to the general public crossing the street at that
         location.

         16. In 2010 Clinton St. was resurfaced and some construction
         was done on the sidewalks of Clinton St. The resurfacing was
         not done in relation to this lawsuit. The resurfacing was pre-
         planned well before December, 2009. The resurfacing had no
         relation to any perceived danger arising from a fall that took
         place in December, 2009.

         17. I am aware that every year the City allocates over $450,000
         to the resurfacing of City streets.

(Aff. Apr. 13, 2012).

         {¶17} As previously stated, the two-inch rule establishes a presumption that

municipalities have no duty to repair a defect in a public walkway measuring two

inches or less in height unless attendant circumstances exist making it reasonably

foreseeable that the defect will cause an injury. See, generally, Cash v. Cincinnati,

supra.


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       {¶18} Here, the only evidence in the record regarding the height of the

defect in the crosswalk is found in the affidavit of Rausch, the City Engineer. In

his affidavit, Rausch opined that “the seam is less than one inch high, and

provided no danger to the general public crossing the street at that location.”

(Rausch Aff. at ¶ 15).          The Mansfields failed to provide any evidence

contradicting Rausch’s opinion or even suggesting that the defect was greater than

two-inches. Therefore, the only evidence in the record supports the conclusion of

the trial court that the two-inch rule is applicable to this case.

       {¶19} Next, the Mansfields failed to present any evidence that attendant

circumstances were present at the time of Theresa’s fall which would preclude the

two-inch rule from barring their negligence claim against the City. Although,

Theresa testified in her deposition that it was dark at the time she fell, she never

states that the darkness or her inability to see the seam in the crosswalk

contributed to her fall. Theresa stated in her deposition that she waited for “the

crosswalk to tell us we could walk * * * when the light changed we watched to

make sure the traffic all stopped[.]” (Depo. at 12-13). Theresa’s statement in this

regard suggests that any potential distraction caused by automobile traffic was

minimized. Moreover, there is no indication in the record that there was heavy

pedestrian traffic in the crosswalk or that there were any other pedestrians in the

crosswalk at the time besides Theresa and the four other people she was with in


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her group. Notably, there is also no indication in the record that the other people

who were in the crosswalk with Theresa experienced similar difficulty when

traversing the asphalt seam.

       {¶20} Furthermore, the affidavit of the City Engineer stated that prior to

Theresa’s fall, the City had received no complaints about the seam in the

crosswalk, that the City maintained a standard protocol to remove any seam that is

more than one inch in height and presented a danger to pedestrians, and that in

2008 the City evaluated the streets in need of repair and this particular crosswalk

was not determined to be one of them. Again, the Mansfields failed to provide

any evidence contradicting the statements of City Engineer regarding the safety of

the crosswalk at the time of Theresa’s fall.

       {¶21} After construing the evidence most strongly in favor of the non-

moving party, we conclude that the Mansfields failed to meet their burden to

demonstrate that genuine issues of material fact remain as to whether 1) the defect

in the crosswalk was insubstantial and 2) as to whether attendant circumstances

existed making it reasonably foreseeable that the defect would cause an injury.

Accordingly, we find that the trial court did not err in concluding that the two-inch

rule barred the Mansfields’ negligence claim, that summary judgment was

appropriate, and that the City was entitled to judgment as a matter of law. The

Mansfields’ assignment of error is overruled.


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       {¶22} For all these reasons, the judgment of the Defiance Court of

Common Pleas is affirmed.

                                                       Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




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