[Cite as Meyer v. Dayton, 2016-Ohio-8080.]




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

 SANDRA K. MEYER                                   :
                                                   :   Appellate Case No. 27002
         Plaintiff-Appellant                       :
                                                   :   Trial Court Case No. 14-CV-3714
 v.                                                :
                                                   :   (Civil Appeal from
 CITY OF DAYTON, OHIO, et al.                      :    Common Pleas Court)
                                                   :
         Defendants-Appellees                      :
                                                   :

                                              ...........
                                             OPINION
                          Rendered on the 9th day of December, 2016.
                                              ...........

JAMES R. GALLAGHER, Atty. Reg. No. 0025658, Gallagher, Gams, Pryor, Tallan &
Littrell, L.L.P., 471 East Broad Street, 19th Floor, Columbus, Ohio 43215-3872
         Attorney for Plaintiff-Appellant

LAWRENCE E. BARBIERE, Atty. Reg. No. 0027106, ROBERT S. HILLER, Atty. Reg.
No. 0027109, and JAY D. PATTON, Atty. Reg. No. 0068188, Schroeder, Maundrell,
Barbiere & Powers, 5300 Socialville Foster Road, Suite 200, Mason, Ohio 45040
and
JOHN C. MUSTO, Atty. Reg. No. 0071512, 101 West Third Street, Post Office Box 22,
Dayton, Ohio 45401

        Attorneys for Defendants-Appellees, City of Dayton and City of Dayton, Ohio
                      Department of Aviation d.b.a. James M. Cox International Airport.


                                             .............
                                                                                          -2-


HALL, J.

       {¶ 1} Sandra Meyer appeals from the trial court’s entry of summary judgment for

the City of Dayton and the City of Dayton, Ohio Department of Aviation, d.b.a. James M.

Cox Dayton International Airport, on her claim of negligence for injuries she sustained

when she fell in an airport parking lot. Finding no error, we affirm.

                                      I. Background

       {¶ 2} On a February 2014 morning Meyer arrived at the Dayton International

Airport to catch a morning flight to Chicago. She parked in the blue lot, a long-term outdoor

parking lot. Meyer had intended to park in the parking garage, but she had missed the

turn, was running late, and was worried that she would miss her flight. Although she had

flown out of the airport before, this was the first time that she had parked in the blue lot.

The closest parking-area marker that she saw read F1.

       {¶ 3} Three days later, on February 22, Meyer returned to Dayton. By the time she

exited the terminal, it was dark outside. She walked through the parking garage and

straight into the blue lot. Meyer pushed a four-wheel suitcase with her right hand, had a

computer bag slung over her right shoulder, and carried a cup of airport coffee in her left

hand. She had trouble seeing because several lights in that area of the parking lot were

not lit. As Meyer walked down the row looking around for her car, the suitcase that she

was pushing abruptly stopped, causing her to pitch forward and land on the asphalt. She

fell on her left side, and her left leg fell across what she described as a “crack,” (Meyer

Dep. 67), or “rut,” (id. at 91), in the asphalt where one side was higher than the other,

breaking the leg just below the hip. She managed to crawl to her computer bag, retrieve

her phone, and call 911. Dayton Police Officer Matthew Lykins was the first to arrive and
                                                                                             -3-


found Meyer laying in row F1. Airport fire department paramedic James Fannin arrived

soon after. He stabilized Meyer and then transported her to Miami Valley Hospital.

       {¶ 4} At the time of Meyer’s fall, Donald Fraley was the Operations and

Maintenance Manager at the Dayton Airport. On the day after the fall, after seeing a report

or log indicating that there had been an injury in the blue long-term lot, he went out to the

lot, “in the general location where she fell.” (Fraley Dep. 56). He observed “about a one-

inch lip” extending from the area of row G1 to a couple rows past row F1 “where two

separate areas of asphalt were done at different periods of time.” (Id. at 51). Although

Fraley did not measure the lip, when asked if he thought that it was a “hazard” he

responded “not a one inch–not a one-inch lip.” (Id. at 58). In his affidavit, Fraley states

that before February 22, 2014, he was not aware of any hazardous condition in the area

where Meyer fell; was not aware of any lights being out in the area; and was not aware

of any slips, trips, or falls in the area. He also states that after learning of Meyer’s fall he

went out to the “alleged area where the plaintiff fell” and he “did not observe any hazard

in the alleged area of Plaintiff’s fall.” (Fraley Affidavit ¶ 9).

       {¶ 5} About a month after Meyer’s accident, Bruce Bales, the chief of the airport

fire department, asked Fannin to show him where Meyer had fallen. The two men drove

to the parking lot, and Fannin pointed to the area in which he believed Meyer had fallen.

Bales saw a crack in the asphalt where there was a difference elevation. Having no

measuring device with him, Bales photographed his pocketknife leaning against the base

of the drop. The knife is approximately 1 3/8 inches wide, and from the photos, the

difference in elevation appears to be two inches or less. After seeing Bales’s photos near

the end of March 2014, the airport’s deputy director ordered that the asphalt in that area
                                                                                         -4-


be repaired. The repairs were made the following October.

       {¶ 6} On June 25, 2014, Meyer sued the City of Dayton and the Dayton

Department of Aviation d.b.a. James M. Cox Dayton International Airport (which we will

refer to collectively as “Dayton”) for negligence.1 Dayton moved for summary judgment

on the grounds that the facts were insufficient to demonstrate that Dayton had a duty to

Meyer, that she is unable to describe the cause of her fall, and that in this circumstance

Dayton is immune from liability. Later, Dayton moved to strike inadmissible evidence cited

by Meyer in her memorandum opposing summary judgment, and to strike Meyer’s

supplemental memorandum in opposition. On January 20, 2016, the trial court overruled

both of Dayton’s motions to strike, but sustained its motion for summary judgment.

       {¶ 7} Meyer appealed.

                                       II. Analysis

       {¶ 8} Meyer’s sole assignment of error alleges that the trial court erred by entering

summary judgment for Dayton. Under Civ.R. 56, “summary judgment is appropriate when

(1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment

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

conclusion is adverse to the nonmoving party, who is entitled to have the evidence

construed most strongly in his or her favor.” (Citation omitted.) Armstrong v. Best Buy Co.,

99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 15. “We review summary

judgment decisions de novo, which means that we apply the same standards as the trial


       1The complaint also lists Dayton Airport Parking, LLC, as a defendant, but
Dayton Airport Parking was dismissed without prejudice. Meyer also filed two amended
complaints that added as defendants Reese Electric, Inc., Rusty Reese, and Sunesis
Construction Company. Meyer later voluntarily dismissed her claims against these
defendants.
                                                                                            -5-

court.” (Citations omitted.) GNFH, Inc. v. W. Am. Ins. Co., 172 Ohio App.3d 127, 2007-

Ohio-2722, 873 N.E.2d 345, ¶ 16 (2d Dist.).

       {¶ 9} “In order to establish actionable negligence, a plaintiff must demonstrate the

existence of a duty, a breach of the duty, and an injury proximately resulting from the

breach.” (Citations omitted.) Dalzell v. Rudy Mosketti, L.L.C., 2d Dist. Clark No. 2015-CA-

93, 2016-Ohio-3197, ¶ 8, citing Menifee v. Ohio Welding Prod., Inc., 15 Ohio St.3d 75,

77, 472 N.E.2d 707 (1984). “Thus, the existence of a duty is fundamental to establishing

actionable negligence. ‘* * * If there is no duty, then no legal liability can arise on account

of negligence. Where there is no obligation of care or caution, there can be no actionable

negligence.’ ” Jeffers v. Olexo, 43 Ohio St.3d 140, 142, 539 N.E.2d 614 (1989), quoting

70 Ohio Jurisprudence 3d, Negligence, Section 13, at 53-54 (1986). Here, Dayton moved

for summary judgment in part on the grounds that Meyer cannot prove that it owed her a

duty of care and in part on the grounds that she cannot specifically identify what it was

that caused her to fall. Dayton also contended that it is immune under R.C. 2744.

                                      The duty of care

       {¶ 10} When she entered the parking lot, Meyer was a business invitee. See Light

v. Ohio University, 28 Ohio St.3d 66, 68, 502 N.E.2d 611 (1986) (“Business invitees are

persons who come upon the premises of another, by invitation, express or implied, for

some purpose which is beneficial to the owner.”). “Business owners owe business

invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition

so as not to unnecessarily and unreasonably expose invitees to danger. However,

business owners are not insurers of an invitee’s safety or against all forms of accidents

that may occur. ‘No presumption or inference of negligence arises from the mere
                                                                                        -6-


occurrence of an accident or from the mere fact that an injury occurred.’ ” (Citations

omitted.) Watkins v. Scioto Downs, Inc., 10th Dist. Franklin No. 15AP-985, 2016-Ohio-

3141, ¶ 9, quoting Byrd v. Arbors E. Subacute & Rehab. Ctr., 10th Dist. No. 14AP-232,

2014-Ohio-3935, ¶ 9; see also Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203,

480 N.E.2d 474 (1985).

      {¶ 11} Some premises conditions are not dangerous as a matter of law.

“[M]unicipalities 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.”

Long v. Speedway, L.L.C., 2d Dist. Montgomery No. 26851, 2016-Ohio-3358, ¶ 9. Under

the “two-inch” rule, established by the Ohio Supreme Court in Cash v. Cincinnati, 66 Ohio

St.2d 319, 421 N.E.2d 1275 (1981), a rebuttable presumption exists that “a difference in

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

in height is insubstantial.” (Citation omitted.) Long at ¶ 9. To rebut this presumption, it

must be shown that attendant circumstances existed that rendered the difference in

elevation substantial. Cash; Long at ¶ 9; Sexton v. Certified Oil Co., 4th Dist. Ross No.

11CA3299, 2013-Ohio-482, ¶ 17.

      {¶ 12} Here, the condition that allegedly caused Meyer to fall is the drop in asphalt

elevation shown in Bruce Bales’s photographs (attached to his affidavit). The photos show

Bales’s pocketknife, measuring a little less than 1 3/8 inches, (Bales Dep. 26), leaning

against the base of the drop. The trial court concluded based on these photos that there

is no genuine issue of material fact that the change in elevation was less than two inches.

Applying the two-inch rule, the court concluded that the elevation change is insubstantial
                                                                                         -7-


as a matter of law. Meyer argues that it is unreasonable to conclude that the change in

elevation is less than two inches based solely on the photos. We agree with the trial court

that there is no question that at the spot where Bales photographed his knife the

difference in elevation is two inches or less. But this conclusion is irrelevant because the

record definitively demonstrates that the area shown in Bales’s photos is not where Meyer

fell.

        {¶ 13} At her deposition Meyer was presented with an aerial photograph of the

parking lot (Defendant’s Exhibit 3, attached to Meyer’s deposition). The lot sits adjacent

to a parking garage. Running perpendicular to the sidewalk along the front of the garage,

double rows of parking spaces alternate with driving lanes. Some of the double rows have

a tall post at their head bearing a parking-area marker. Because not every double row

has a marker, several driving lanes are included in each marked area. On the aerial photo,

Meyer circled the approximate spot that she parked. Looking out at the parking lot from

the parking garage, the spot is one row to the south of the double row headed by the

parking-area post marker for F1.2 Meyer marked an “x” on the photo at the approximate

location of her fall. The place that she marked is in the first driving lane that runs along

the north side of the marker post for row F1, which is the row that Officer Lykins said he

found Meyer, (Lykins Dep. 20; Defendant’s Exhibit 12).

        {¶ 14} But Bales took his photos in the driving lane that is one lane farther to the



2 Also at her deposition Meyer was asked about Defendant’s Exhibit 2, a “Blue Lot
Reconstruction” diagram on which someone had handwritten “F1” and several other
parking lane numbers. The location of the F1 lane marked on this diagram is
inconsistent with the location of the lane given in other evidence we reference. The
record does not indicate who marked the diagram or how this inconsistency came
about.
                                                                                       -8-


north of the lane in which Meyer said that she fell. The F1 marker is visible in some of

Bales’s photos, and the marker’s apparent location conclusively shows that the photos

were not taken in the lane that runs along the north side of the double row headed by the

F1 marker. Also, Fannin admitted in his deposition that he might have led Bales to the

wrong lane. When asked whether the photos show the area in which he found Meyer,

Fannin replied:

      A. I can’t recall that. I just remember, what I was judging off of and where I

      took him [Bales] was the distance from this building from when we arrived.

      (Indicating.) So I said this general area and I think he was going off my

      report where I said she had fallen off or stepped off uneven pavement. I

      think he noticed this and said this must be where she was referring to.

      ***

      A. * * * We may even be in the wrong lane. Like where this says C1, this

      may be C2 or C3 and she may have been in C5. I can’t remember.

      Q. You don’t remember either way?

      A. No. * * *

(Fannin Dep. 31-32). The trial court recognized the possibility that the area photographed

by Bales was not where Meyer fell: “Although the alleged place where Plaintiff fell was

documented through pictures, it is not confirmed by the Plaintiff that this was the exact

place where she fell.” Decision, Order and Entry Sustaining Defendant City of Dayton,

Ohio, et al.’s, Motion for Summary Judgment (January 20, 2016).

      {¶ 15} Three photographs in the record (Defendant’s Exhibits 5, 6, 7, attached to

Meyer’s deposition) confirm the court’s suspicion. These photos were apparently taken
                                                                                            -9-


at the scene on the night of the accident and show the area of the fall. In two of the photos

part of an ambulance can be seen in the background, and in the third photo there is what

appears to be a coffee cup laying on the ground. Meyer testified that she had been

carrying a cup of coffee when she fell, and Officer Lykins wrote in his report that “[a] coffee

cup was located near Ms. Meyer and was warm to the touch.” (Defendant’s Exhibit 12).

The electronically filed copies of these deposition photos, when downloaded as a PDF

document, are in color, though the print copies in our record are black and white. The

photos show that the asphalt in the area was in rough shape—a web of cracks. Officer

Lykins wrote in his report that “the pavement does have a uniform drop in elevation of

approx. 1 inch at the point near the alleged fall.” (Defendant’s Exhibit 12). But Lykins

admitted that he did not measure the drop and saw it only in the dark. While the photos

themselves contain no indication of which lane they were taken in, there is no question

that the pattern of cracks in the asphalt does not match the pattern of asphalt cracks

shown in Bales’s photos.

       {¶ 16} The trial court concluded that the difference in elevation of the asphalt

described by Bales and shown in his photos is insubstantial as a matter of law. Our de

novo review leads us to conclude that Bales photographed the wrong location, so

summary judgment should not be granted based on the nature of the condition at that

specific location. But summary judgment could be granted based on the nature of the

condition in the area where Meyer actually fell.

       {¶ 17} At his deposition Fraley was asked about, and shown, the three photos

taken by Bales, and Fraley testified that it was his understanding that these photos show

the area where Meyer fell. But Fraley’s initial first-hand, next-day observation of the
                                                                                         -10-


location where the fall actually occurred was not limited to the aisle shown in Bales’s

photos. Fraley said that he went out to the area around the F1 light pole and observed

the “lip” that extended over several aisles but did not see a “hazard.” (Fraley Dep. 57). He

examined the “whole area” enough to get a look at the lip. (Id. at 91). Fraley was also

asked about the three night-time photos taken in the actual aisle in which Meyer fell. He

said that these photos were taken by Chris Pearson, a supervisor working in his

department, and said that Pearson took the pictures on the night of the fall to record the

area around where Meyer fell. (Id. at 124-126).

       {¶ 18} There is no genuine issue as to the elevation difference in the actual area

of her fall. Faley’s affidavit and deposition, the photos of the area, and Officer Lykins’s

testimony are the only evidence about the elevation difference, and all suggest that the

difference was well under two inches. Applying the two-inch rule, therefore, this condition

too is insubstantial as a matter of law.

       {¶ 19} Our determination that the elevation difference was less than two inches

does not end the inquiry. In Cash, the Ohio Supreme Court said that this finding only

raises a rebuttable presumption that the defect is insubstantial. Attendant circumstances

can rebut the presumption. Attendant circumstances include “any distraction that would

come to the attention of the pedestrian in the same circumstances and reduce the degree

of care an ordinary person would exercise at the time.” (Citation omitted.) Henry v. Marriott

Hotel Serv., Inc., 2d Dist. Montgomery No. 19653, 2003-Ohio-4840, ¶ 8. But they do not

include regularly encountered, ordinary, or common circumstances, Colville v. Meijer

Stores Ltd. Partnership, 2d Dist. Miami No. 2011-CA-011, 2012-Ohio-2413, ¶ 30, citing

Cooper v. Meijer, 10th Dist. Franklin No. 07AP-201, 2007-Ohio-6086, ¶ 17, at least in the
                                                                                        -11-


parallel open-and-obvious analysis of attendant circumstances. Also in that analysis,

“[a]ttendant circumstances do not include the individual’s activity at the time of the fall

unless the individual’s attention was diverted by an unusual circumstance of the property

owner’s making.” McConnell v. Margello, 10th Dist. Franklin No. 06AP-1235, 2007-Ohio-

4860, ¶ 17.

      {¶ 20} Meyer argues that there is a genuine issue of fact as to whether there were

attendant circumstances. She refers to 11 conditions as attendant circumstances which

can be summarized as the following: her unfamiliarity with the parking lot, the darkness,

the direction of the black asphalt elevation change, the late hour, the weather, and

Dayton’s knowledge of the elevation differential. That Meyer was unfamiliar with the

parking lot or that the weather when she parked was different than the weather when she

returned or that the hour was late are not attendant circumstances, because they are not

distractions that would reduce the degree of care exercised by a pedestrian or because

they are not circumstances of the property owner’s making or under the property owner’s

control. Likewise we fail to see how the direction of the elevation change or darkness of

the pavement reduces the care exercised by pedestrians. That leaves only Dayton’s

knowledge of the elevation difference and the lighting as potential attendant

circumstances. In regard to what Dayton knew, we conclude that does not make an

otherwise minor defect into a dangerous condition. As to the lack of light, we held in

Russell v. Creatif’ Catering, Inc., 2d Dist. Montgomery No. 17031, 1998 WL 833811, *3

(Dec. 4, 1998), that in the absence of other circumstances, dim lighting alone does not

amount to an attendant circumstance. We distinguished Russell in Goldshot v. Romano’s

Macaroni Grill, 2d Dist. Montgomery No. 19023, 2002-Ohio-2159, based on the fact that,
                                                                                           -12-

in Goldshot, dim lighting was not the only circumstance. There was also evidence that the

property owner knew that others had fallen at the same location. The present case is

distinguishable from Goldshot because, while Dayton might have known about the

elevation difference in the area where Meyer fell, we see nothing in the record suggesting

that anyone has ever fallen there. For these reasons, we conclude that there is no genuine

issue of material fact as to the existence of attendant circumstances. The evidence shows

no attendant circumstances existed that would make the insubstantial asphalt defect

substantial.

       {¶ 21} Assuming that a difference in the elevation of the asphalt caused Meyer’s

fall, negligence cannot be found, because Dayton had no duty to her vis-à-vis that

condition.

                          Other issues related to the duty of care

       {¶ 22} It is possible that the condition that caused Meyer to fall is open and

obvious, which would also relieve Dayton of any duty of care to Meyer, see Lang v. Holly

Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d 120, ¶ 11 (saying that

“when a plaintiff is injured by an open and obvious danger, summary judgment is generally

appropriate because the duty of care necessary to establish negligence does not exist as

a matter of law”). But Dayton did not argue the open-and-obvious issue in its summary-

judgment motion, the trial court did not consider the issue, and neither party argues the

issue in their briefs. Therefore we do not consider it.

       {¶ 23} Meyer argues throughout her brief that Dayton’s liability may be premised

on the failure to fix the lights in the area in which she fell. Evidently, several lights were

not working that night because they had shorted out. But darkness generally cannot be a
                                                                                          -13-

basis of liability, because the owner of a parking lot has no obligation to light it. Jeswald

v. Hutt, 15 Ohio St.2d 224, 227, 239 N.E.2d 37 (1968). “Not only is there no duty to light

a parking lot there is no precedent that once some light is provided, the owner of the

premises has a duty to provide ‘adequate’ lighting.” (Citation omitted.) Meilink v. AAA

Northwest Ohio, 6th Dist. Lucas No. L-98-1139, 1998 WL 833570, *2 (Dec. 4, 1998).

Because Dayton had no duty to light the parking lot, it cannot be negligent for not fixing

the lights.

                            The particular cause of Meyer’s fall

       {¶ 24} Ultimately, the trial court concluded that negligence could not be found

because Meyer could not clearly identify where she fell or what caused her to fall. It is

true that “ ‘[t]he fact that a pedestrian cannot identify an unseen hazard as the cause of

injury does not entitle the defendant to summary judgment.’ ” Baker v. Bob Evans Farms,

Inc., 9th Dist. Wayne No. 13CA0023, 2014-Ohio-2850, ¶ 20, quoting Lovejoy v. EMH

Regional Med. Ctr., 9th Dist. Lorain No. 07CA009145, 2008-Ohio-3205, ¶ 12. But “[t]he

mere happening of an accident gives rise to no presumption of negligence.” Parras v. Std.

Oil Co., 160 Ohio St. 315, 319, 116 N.E.2d 300 (1953). “ ‘Negligence is a fact that will not

be presumed * * *.’ ” McLain v. Equitable Life Assur. Co. of U.S., 1st Dist. Hamilton No.

C-950048, 1996 WL 107513, *6 (Mar. 13, 1996), quoting Wesly v. The McAlpin Company,

1st Dist. Hamilton No. C-930286, 1994 WL 201825, *2 (May 25, 1994). “ ‘An inference of

negligence does not arise from mere guess, speculation, or wishful thinking, but rather

can arise only upon proof of some fact from which such inference can reasonably be

drawn.’ ” Gibbs v. Speedway, LLC, 2014-Ohio-3055, 15 N.E.3d 444, ¶ 19 (2d Dist.),

quoting Parras at paragraph two of the syllabus; see also Parras at 319 (saying that “in
                                                                                         -14-


order for an inference to arise as to negligence of a party, there must be direct proof of a

fact from which the inference can reasonably be drawn”). Consequently, “ ‘[w]hen the

cause of a fall cannot be identified, a finding of negligence is precluded.’ ” Hill v. Monday

Villas Property Owners Assn., 2d Dist. Montgomery No. 24714, 2012-Ohio-836, ¶ 18,

quoting Russell, 1998 WL 833811, at *2.

       {¶ 25} At her deposition Meyer tried to explain what happened. She said that while

she was walking in the parking lot, pushing her wheeled suitcase and looking for her car,

one of the suitcase wheels caught in a divot or rut in the asphalt. This caused the suitcase

to stop abruptly, which caused her to pitch forward onto the ground:

       Q. * * * [Y]ou said that your bag, as you were walking, suddenly stopped,

       correct?

       A. Correct.

       Q. And where did the bag go?

       A. It went forward. It tilted forward.

       ***

       Q. So then for the bag to tilt forward, was it because you started to fall and

       you held on to it or did the bag stop and then tilt forward for some other

       reason?

       A. What I remember is falling forward, falling. * * *

       ***

       Q. So the bag went forward, and you went forward as well?

       A. Yes.

       ***
                                                                                            -15-




      Q. Did you fall onto or over the bag before you made it to the asphalt

      surface?

      A. I did not fall on the bag.

(Meyer Dep. 80-83).

      {¶ 26} But Meyer could not say what, exactly, it was that caused her suitcase to

stop so abruptly:

      Q. So do you know what caused your suitcase to stop?

      A. My suitcase stopped because it hit a rut and went down in and stopped.

      Q. Did you ever see that rut either before or after you fell?

      A. Before, no, After, I was in it. That’s what I was.

      Q. I want to know what you saw or didn’t see. Did you ever see the rut that

      your suitcase stopped?

      A. No.

      Q. So you can’t describe this rut in any way?

      A. I can describe it in that I fell so that my femur hit the edge of it and sheared

      it.

      Q. When you say “rut,” what do you mean?

      A. There was an edge. There was a definite edge that I—because when I

      turned myself around to move out of it, I had to move out of it, so there was

      an edge to it.

      ***

      Q. So I know I told you not to do this, but when you say there was an edge,
                                                                                         -16-


       you mean you have your surface, there’s surface at one level and then,

       adjacent to it, there’s a surface at a different level? Is that what you mean

       by “edge,” the difference in those two levels?

       A. That is the one that my leg hit. What was over here, there was a rut, so

       whether one side was higher than the other, I don’t know. I just know there

       was a rut that my wheels got stuck in, and I went down like this.

       Q. * * * Before, when I held my hands up, and held my fingers up, if you will,

       at one level and my other hand at a different level, are you saying that’s the

       situation that created the edge, that there were two levels of asphalt, one

       higher than the other?

       A. I don’t know.

       Q. So, again, are you able to describe the rut that caused your wheel or

       wheels to stop?

       A. No.

(Id. at 91-94).

       {¶ 27} In the record are several accounts of the fall that differ from Meyer’s

depositional account. The first is in the recording of her 911 call. Meyer told the

dispatcher, “ ‘I was wheeling my bag in the parking lot and there’s a big divot and I didn’t

see it and my ankle twisted and I went down.’ ” Plaintiff’s Memorandum Contra

Defendant’s Motion for Summary Judgment, 4. The other accounts come from the reports

of emergency responders. Officer Lykins wrote in his report that

       Ms. Meyer advised that she had been travelling (sic) thru the parking lot

       heading toward her vehicle. Ms. Meyer advises, that as she was walking
                                                                                         -17-


       that the pavement dropped causing her to fall. Ms. Meyer advised that after

       stepping onto the lower pavement that her roller board which she was

       pulling behind her dropped down causing her to lose her balance. Ms.

       Meyer advised severe pain in her left leg and stated that she felt it was

       broken.

(Defendant’s Exhibit 12; Lykins Dep. 21). When Meyer was asked at her deposition about

Officer Lykins’s report, she said that she did not remember saying this. She also noted

that she was not pulling the suitcase but pushing it. James Fannin, the paramedic who

treated Meyer at the scene, wrote in his report that Meyer “stated she ‘was walking to her

car after her flight rolling her luggage when she stepped into a pothole in the parking lot;

due to the lighting in the parking lot, she was unable to see the hole. She started to fall

and the wheels on her luggage tripped her feet and she fell onto her butt and felt a pop in

her thigh.’ ” (Defendant’s Exhibit 11). When asked about Fannin’s report, Meyer said that

she did not remember what she told him. She denied stepping into a pothole. When she

was asked whether the suitcase wheels tripped her, she said, “In a split second, my

luggage stopped. It was locked. It pulled me forward. Whether or not my feet were

involved or not, I don’t remember.” (Meyer Dep. 99). A Dayton Fire Department paramedic

wrote in a report that Meyer “states she was walking to her car with her rolling suitcase

and s[t]epped on uneven pavement and felt a ‘pop’ and excruciating pain in her right (sic)

leg.” (Defendant’s Exhibit 12). Lastly, a medical record from the Miami Valley Hospital

says that Meyer “went into a pothole and she tripped over the suitcase, and she said she

literally flew over her suitcase into the left upper leg.” (Defendant’s Exhibit 13). Asked

about the hospital record, Meyer said that it is simply wrong. She explained, “These are
                                                                                             -18-


words of a woman who is in shock.” (Meyer Dep. 105).

       {¶ 28} The variations in the accounts that Meyer gave of how she fell show that

she was unsure about the exact cause of her fall. Dayton argues that these non-

depositional accounts should not be considered because they are hearsay.3 But not even

at her deposition could Meyer identify what, specifically, caused her fall. She testified that

all she really remembers is falling forward: “There’s only one thing I recall, and that’s

being thrust forward.” (Id. at 102).

       {¶ 29} It appears from Meyer’s testimony that what precipitated her fall was her

suitcase coming to an unexpected stop. Meyer admitted, though, that she did not see

what it was that stopped the suitcase. She speculates that it was one of the suitcase

wheels catching in a rut or divot, but she was unsure. She cannot point to a particular rut

or crack as the culprit. The photos taken of the area in which she fell show cracks in the

asphalt, some much smaller than others, but it cannot reasonably be inferred that a

“substantial” rut or divot must have caused the suitcase to stop. Compare Gibbs, 2014-

Ohio-3055, 15 N.E.3d 444, at ¶ 20-21 (rejecting the plaintiff’s contention that the fact that

he felt ruts of ice under his feet gave rise to an inference that he tripped over a rut of ice);

McLain, 1996 WL 107513, *6-7 (saying that the plaintiff’s testimony that her foot caught

on something before she fell but had no idea what suggests contact with something before

she fell but could be attributable to a number of causes, including a misstep).

       {¶ 30} We have said that “ ‘[t]o establish negligence in a slip and fall case, it is

incumbent upon the plaintiff to identify or explain the reason for the fall. Where the plaintiff,


       3 Dayton’s motions to strike targeted the hearsay in these reports. The trial court
overruled the motions and considered the reports. Dayton did not cross-appeal the trial
court’s rulings on this issue.
                                                                                           -19-


either personally or by outside witnesses, cannot identify what caused the fall, a finding

of negligence on the part of the defendant is precluded.’ ” Harshaw v. Trotwood Foodtown,

Inc., 2d Dist. Montgomery No. 15125, 1996 WL 74702, *1 (Jan. 24, 1996), quoting

Stamper v. Middletown Hosp. Assn., 65 Ohio App.3d 65, 68-69, 582 N.E.2d 1040 (12th

Dist.1989). We hold that Meyer failed to develop sufficient facts from which a trier of fact

could determine that a defect in the parking lot asphalt of sufficient size to impose liability

was the particular cause of her fall and summary judgment is appropriate on the issue of

proximate cause.

                                          Immunity

        {¶ 31} Dayton argued that it was also entitled to summary judgment because it is

immune from liability under R.C. 2744, the Political Subdivision Tort Liability Act. The trial

court agreed, finding that Dayton did not engage in negligent conduct and that the record

does not indicate that Dayton acted badly or recklessly.

        {¶ 32} A political subdivision is immune from tort liability incurred in performing a

“governmental function” or a “proprietary function” unless a statutory exception applies

and none of the statutory defenses applies. Colbert v. Cleveland, 99 Ohio St.3d 215,

2003-Ohio-3319, 790 N.E.2d 781, ¶ 7-9. A “proprietary function” includes “[t]he

establishment, maintenance, and operation of * * * an airport,” R.C. 2744.01(G)(2)(c), and

“[t]he operation and control of a[n] * * * off-street parking facility,” R.C. 2744.01(G)(2)(e).

The maintenance of a city-owned parking lot is a proprietary function. Bounds v. Marc

Glassman, Inc., 8th Dist. Cuyahoga No. 90610, 2008-Ohio-5989, ¶ 14. Meyer says that

Dayton did not run the parking lot but that a contracted company did.4 This is immaterial.


4   Dayton Airport Parking, LLC, a dismissed defendant, ran the parking lot.
                                                                                         -20-


Dayton owns and maintains the parking lot. That it chose to contract out day-to-day

running of the lot does not mean that it does not operate or control it.

       {¶ 33} Two of the statutory exceptions in R.C. 2744.02(B) are relevant here, but

neither applies. The first exception is for injury “caused by the negligent performance of

acts by [the political subdivision’s] employees with respect to proprietary functions of the

political subdivisions.” R.C. 2744.02(B)(2). We have already concluded that exception

does not apply in that Meyer has failed to show that Dayton was negligent. The second

exception is for injury “caused by the negligence of [the political subdivision’s] employees

and that occurs within or on the grounds of, and is due to physical defects within or on

the grounds of, buildings that are used in connection with the performance of a

governmental function.” R.C. 2744.02(B)(4). In addition to Meyer’s failure to show

negligence, no governmental function is implicated here. Thus summary judgment is also

proper on immunity grounds.

                                      III. Conclusion

       {¶ 34} We have considered the other issues that Meyer raises in her brief and find

none that merit consideration. Dayton is entitled to judgment as a matter of law on Meyer’s

claim for negligence. Therefore the sole assignment of error is overruled, and the trial

court’s judgment is affirmed.

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

FAIN, J., concurs.



FROELICH, J., dissenting:
       {¶ 35} A de novo review is this court’s independent review of the evidence before
                                                                                          -21-


the trial court without any deference to the trial court’s determination. I do not necessarily

disagree with the majority’s thorough review of the record which, by definition, is the same

evidentiary material available to the attorneys and trial court. However, I would remand

for the parties to argue and the court decide the motions based on the facts the de novo

review has determined.

                                        ..........


Copies mailed to:


James R. Gallagher
Lawrence E. Barbiere
Robert S. Hiller
Jay D. Patton
John C. Musto
Hon. Barbara P. Gorman
