[Cite as McCoy v. Wasabi House, L.L.C., 2018-Ohio-182.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

                                                           JUDGES:
SHERRYL MCCOY                                      :       Hon. W. Scott Gwin, P.J.
                                                   :       Hon. William B. Hoffman, J.
                       Plaintiff-Appellant         :       Hon. Earle E. Wise, J.
                                                   :
-vs-                                               :
                                                   :       Case No. 2017CA00098
WASABI HOUSE, LLC, ET AL                           :
                                                   :
                  Defendants-Appellees             :       O P I N I ON




CHARACTER OF PROCEEDING:                               Civil appeal from the Stark County Court of
                                                       Common Pleas, Case No. 2016CV02081



JUDGMENT:                                              Affirmed


DATE OF JUDGMENT ENTRY:                                January 16, 2018


APPEARANCES:

For Plaintiff-Appellant                                For Defendant-Appellee

WILLIAM J. DAVIS                                       CRAIG G. PELINI
ARONSON, FINEMAN & DAVIS CO.                           NICOLE H. RICHARD
124 EAST FIFTH STREET                                  PELINI, CAMPBELL & WILLIAMS, LLC
EAST LIVERPOOL, OH 43920                               8040 CLEVELAND AVE. NW, STE. 400
                                                       NORTH CANTON, OH 44720
Stark County, Case No. 2017CA00098                                                          2

Gwin, P.J.

       {¶1}   Appellant appeals the May 17, 2017 judgment entry of the Stark County

Court of Common Pleas granting appellee’s motion for summary judgment.

                                    Facts & Procedural History

       {¶2}   On September 20, 2016, appellant Sherryl McCoy filed a negligence

complaint against appellee Wasabi House, LLC. Appellant alleged in her complaint that

on October 17, 2014, at 5:45 p.m., while she was holding onto the handrail and walking

on the ramp leading to the entrance doors, she tripped on an uneven area on the ramp

covered by a rubber mat and sustained injuries. Appellee filed an answer on October 21,

2016. Appellee then filed a motion for summary judgment on April 11, 2017. Appellee

alleged two doctrines barred appellant’s negligence complaint: the open and obvious

doctrine and the two-inch rule. Appellant filed a brief in opposition to appellee’s motion

for summary judgment and argued the two-inch rule did not apply and contended whether

the condition was open and obvious was a jury question.

       {¶3}   In her deposition, appellant stated that, as a result of her fall on October 17,

2014, she sustained a right leg puncture wound and her right femur was shattered such

that the doctor had to put in a rod, plate, and screws. Appellant lives in Pennsylvania and

came to Canton earlier that day to celebrate an occasion with her family. Appellant had

never been to Wasabi House before. When she arrived at Wasabi House, appellant

parked in the lot to the left-hand side of the building as the restaurant faces the street.

Appellant stated when she arrived at Wasabi on October 17, 2014, it was 5:45 p.m., it

was still light out, there was no precipitation, she had no visibility problems, and the light

was such that she could see where she was walking. Appellant testified her niece and
Stark County, Case No. 2017CA00098                                                          3


nephew were ahead of her with their children. Appellant does not have any visual or

vision issues.

       {¶4}      Appellant stated that as she began to go up the ramp, she could see it was

a ramp, could see the condition of the ramp as she was walking, could see the ramp was

going up to the landing, could see a black mat on the ramp, and knew the handrail ended

at the top of the ramp. She was walking up the right-hand side of the ramp with her hand

on the handrail. Appellant testified, “she saw nothing to make [her] think there was any

reason I shouldn’t step up.” Appellant knew she was walking up a ramp, could see the

condition of the ramp, and was able to look down and see where she was putting her foot.

She stated as she was walking upward, it was obvious it was a ramp and obvious there

was a runner on the ramp. Appellant identified Exhibit A as a picture of the ramp she was

walking up and stated she could see the ramp, black runner, and black mat on the day in

question. Appellant testified she made the conscious decision to use the ramp.

       {¶5}      Appellant stated as she was walking up the ramp, she could see the wood

and rubber mat. Appellant testified the lead foot was her right foot, which went up onto

the tile itself. Appellant believes her left toe hit something, causing her to fall, but when

asked where her left toe hit, appellant stated, “I’m going to say I’m not positive.” Appellant

stated she was able to see the tile as she was placing her right foot on the tile and, as

she was beginning to move her left foot forward, she was able to see the area directly in

front of her. She knew she was going from the ramp to the tile. Appellant testified there

was nothing except people ahead of her walking up the ramp, and the area where she

fell was capable of observation within her field of vision.
Stark County, Case No. 2017CA00098                                                        4


         {¶6}   Appellant confirmed she had just walked over the same area with her right

foot safely. When asked what was different about moving her left foot that was different

from her right foot, appellant responded, “I don’t know.” Appellant testified that, at the

time her fall occurred, her nephew holding an infant safely walked across the area, as did

her niece and her sister. Appellant stated that one of the ambulance drivers told her this

happened before at Wasabi, but appellant had no personal knowledge of any previous

falls.

         {¶7}   Appellant stated her nephew returned to Wasabi after the accident and took

photographs.      As to the photographs taken by her nephew, appellant testified she

believes the photographs taken by her nephew helped tell her what caused her to fall.

         {¶8}   On direct examination, appellant testified she could see there was a ramp

in front of her, could see the runner from the bottom to the top, could see the black mat

at the top, and none of these things looked hazardous to her. Appellant stated she could

not see what was under the black mat and that she was not there when they peeled back

the black mat. Appellant testified there was “nothing to distract her” as she was walking

towards the door, and that she looked at the floor and entrance as she was going up the

ramp.

         {¶9}   Appellant also attached her own affidavit to her response to the motion for

summary judgment. In her affidavit, appellant averred there was nothing visible on the

black mat that covered the end of the ramp and porch to cause her to trip and fall. She

stated she had viewed the tiled porch and there appeared no obstructions before her.

Appellant averred as she stepped off the end of the ramp and onto the porch with her

right foot, the toe of her left foot caught, and she stumbled toward the entrance door seven
Stark County, Case No. 2017CA00098                                                       5


feet away. When her left foot caught, it tripped her, and she could not recover. Appellant

stated upon taking the step off the ramp and onto the porch, she was looking forward and

following her family. Appellant averred there was no visible hazard on the black rubber

mat as she walked on it and no abrupt difference in the level between the porch and the

end of the ramp was visible to catch the toe of her left foot. Further, that she had no

reason to look down at her left foot after her right foot reached the porch because the

porch looked free and clear of anything that would impede her step.

      {¶10} Appellant averred that as she reached the top of the ramp and let go of the

handrail, she was paying attention to her niece a step ahead of her, her sister Evelyn who

was carrying a child, her nephew who was carrying a child, and to others entering the

porch from the front stairs. She stated her attention was drawn to her family and other

persons on the porch and the activity entering the restaurant through the door.

      {¶11} Also attached to appellant’s response to the motion for summary judgment

is the affidavit of Dustin Willgohs (“Willgohs”), appellant’s nephew. Willgohs averred that

on the day in question, appellant was a step behind his wife as they all walked up the

ramp and, as she was walking on the mat-covered end of the ramp where it adjoined the

porch or landing, she stumbled forward towards the entrance door, falling on the tiled

porch. Willgohs stated he returned to the restaurant on October 17, 2014 to see what

caused appellant to fall and the ramp, runner on the ramp, and mat on the top of the ramp

looked fine. However, he noticed some “give” to the mat upon downward pressure in the

area of the ramp adjoining the porch. Willgohs took four photographs on October 17,

2014 of the area in question and went back on October 24, 2017 to take five additional

photographs. The photographs are attached to his affidavit.
Stark County, Case No. 2017CA00098                                                         6


       {¶12} Appellant also submitted the affidavit of Kurtis Whitling (“Whitling”), a

mechanical engineer at CED Technologies. Whitling stated he inspected the ramp at

issue on December 30. He averred that, with the mat removed, the vertical height

difference at the transition from the wooden ramp to the tile floor ranged from 1 1/8 inch

at the west end, to 1 ¼ inch in the center, to 7/8 inch at the east end of the ramp. Whitling

opined the sharp vertical offset provided a tripping hazard which would be a dangerous

condition for patrons and that the hazard was hidden by the black material and black

rubber mat. Whitling also opined that the idea that a two-inch offset is insubstantial

conflicts with all standards of construction. He concluded the vertical height difference

between the tile and base of the ramp where appellant’s left toe caught was between 1

1/8 inch and 1 ¼ inch and caused her to stumble. Whitling also opined as to how the

hazard should have been fixed by properly replacing the mortar built up on the west side

of the ramp.

       {¶13} Appellant filed the deposition of Nan Lin (“Lin”). Lin testified that when the

restaurant opened in 2009, the ramp is “pretty much” how it is now, and they have not

changed the dimension or structure of the ramp at all. The ramp was there when Lin

purchased the property. The tiles, handrails, and slope of the ramp have not changed

since he purchased the restaurant in 2009. Lin did put in lights in the area to improve

visibility and also put in a non-slip runner on the ramp.

       {¶14} The trial court issued a judgment entry on May 17, 2017. The trial court

found that a black rubber mat ran over the top edge of the ramp and onto the tiled platform

and, under the mat, the wooden ramp was slightly lower than the platform, and a small

lip existed where the ramp transitioned to the platform. Further, that photographs taken
Stark County, Case No. 2017CA00098                                                         7


shortly after the incident show a small hump visible beneath the rubber mat where it lay

across the transition from the ramp to the platform. The trial court noted the height of the

“lip was reduced by the rubber mat lying across it,” and, according to appellant’s expert

report, the height of the lip was approximately one inch. The trial court noted the following

testimony of appellant: appellant admits she observed the black runner and could clearly

see the area where the mat transitioned onto the tiled platform; appellant admits she was

able to negotiate the transition with her right foot without any problem, but when she

stepped with her left foot, her toe caught, she stumbled and fell; appellant admits the area

where she was walking was observable and nothing obstructed her ability to view the

ramp and tile platform; and while she stated in her affidavit she was paying attention to

family and patrons ahead of her on the ramp, she testified in her deposition that she was

not distracted by anything as she walked up the ramp.

       {¶15} The trial court found, based upon the testimony of appellant and the

photographs submitted showing a slight lip at the transition from the end of the ramp to

the tiled platform, the defect was open and obvious. The trial court stated the exposed

lip at the edge of the black runner and slight hump in the mat is clearly shown in

appellant’s own photographs. Further, that the rubber mat served to smooth over the

transition from the ramp to the platform without actually concealing the transition. The

trial court noted appellant’s admissions that she could see the ramp, knew the ramp was

going up to the landing, and knew the black rubber mat lay across the transition. The trial

court found appellant’s testimony that she “saw nothing to make me think there was any

reason why I shouldn’t step up” important, as it meant appellant understood she had to

step up onto the landing.       The trial court found reasonable people viewing the
Stark County, Case No. 2017CA00098                                                            8


photographs can only conclude the slight difference in height between the end of the ramp

and tiled platform was open and obvious.

        {¶16} Further, that appellant failed to produce any evidence of attendant

circumstances. While she stated in her affidavit her “anticipation and attention” was

drawn to her family and the activity entering through the restaurant, the trial court found

these are not circumstances beyond her control. Rather, appellant was simply describing

her own activities at the time of the fall. The trial court also relied on appellant’s testimony

that she was not distracted by anything when she fell.

        {¶17} The trial court also found the trivial defect or two-inch rule applies to bar

appellant’s claim. The trial court stated appellant’s evidence establishes the greatest

differential between the ramp and the platform was 1 ¼ inch and these measurements

were taken without the black runner or map over the lip. Further, appellant’s expert report

and photographs demonstrate that, with the mat present, the offset is approximately one

inch.

        {¶18} The trial court found there is no evidence of attendant circumstances to

rebut the two-inch rule, as the weather was dry, it was light out, appellant stated she had

no visibility problems, appellant testified there was nothing obstructing her view of the

ramp or the threshold, appellant stated she was not distracted, appellant was able to

negotiate the lip with her right foot without any difficulty an instant earlier, and appellant

was not able to state with certainty what her left toe caught on. As to appellant’s argument

that the rubber mat itself was an attendant circumstance because it hid the offset, the trial

court found appellant’s photographs show the lip at the transition from the ramp to the

tiled platform is clearly visible as one approached the top of the ramp. Further, appellant’s
Stark County, Case No. 2017CA00098                                                      9


self-serving affidavit that the difference in the level between the ramp and porch was not

visible is contradicted by her own testimony and own photographs.

      {¶19} The trial court found Wasabi House was entitled to judgment as a matter of

law and granted Wasabi House’s motion for summary judgment.

      {¶20} Appellant appeals the May 17, 2017 judgment entry of the Stark County

Court of Common Pleas and assigns the following as error:

      {¶21} “I. THE TRIAL COURT ERRED IN GRANTING APPELLEE’S MOTION

FOR SUMMARY JUDGMENT BY FINDING THAT THE APPELLANT WAS INJURED BY

AN OPEN AND OBVIOUS HAZARD, WHERE THE TRIP HAZARD WAS HIDDEN FROM

VIEW BY A FLEXIBLE BLACK RUBBER MAT THAT DEPRESSED AS THE APPELLANT

WALKED OVER IT.

      {¶22} “II. THE COURT ERRED IN GRANTING APPELLEE’S MOTION FOR

SUMMARY JUDGMENT BASED UPON THE “TWO INCH RULE” WHERE THE TRIP

HAZARD WAS HIDDEN FROM VIEW AND NOT SUBJECT TO OBSERVATION

BECAUSE THE HAZARD WAS COVERED WITH A FLEXIBLE BLACK RUBBER MAT

THAT DEPRESSED AS THE APPELLANT WALKED OVER IT.

      {¶23} “III. THE COURT ERRED IN GRANTING APPELLEE’S MOTION FOR

SUMMARY JUDGMENT WHERE THE APPELLANT’S DIRECT, CIRCUMSTANTIAL

AND EXPERT TESTIMONY ESTABLISHED THAT THE TRIP POINT THAT CAUGHT

THE TOE OF THE APPELLANT’S LEFT FOOT AND CAUSED HER TO STUMBLE AND

FALL WHICH WAS NOT VISIBLE OR OBSERVABLE BUT WAS PRODUCED BY THE

PRESSURE OF THE APPELLANT’S LEFT FOOT DEPRESSING THE BLACK RUBBER

MAT THAT RESTED ON THE TILE PORCH AND THE END OF THE HANDICAP RAMP.
Stark County, Case No. 2017CA00098                              10


     {¶24} “IV. THE COURT ERRED IN GRANTING SUMMARY JUDGMENT WHERE

ALL DIRECT, CIRCUMSTANTIAL AND EXPERT TESTIMONY OFFERED BY

APPELLANT WAS THAT THE DISTANCE IN ELEVATION BETWEEN THE EDGE OF

THE TILE PORCH AND THE END OF THE WOODEN HANDICAP RAMP CREATED A

SUBSTANTIAL HAZARD BECAUSE THE VERTICAL DISTANCE WAS NOT

OBSERVABLE UNDERNEATH THE BLACK RUBBER MAT THE COVERED IT.

     {¶25} “V. THE COURT ERRED IN GRANTING APPELLEE’S MOTION FOR

SUMMARY JUDGMENT WHERE THE APPELLANT HAS OFFERED DIRECT,

CIRCUMSTANTIAL AND EXPERT TESTIMONY THAT ESTABLISHED THAT THE

DEFECT AND HAZARD WHICH PROXIMATELY CAUSED THE APPELLANT TO

STUMBLE AND FALL WAS HIDDEN FROM OBSERVATION AND VIEW BENEATH A

FLEXIBLE BLACK RUBBER MAT.

     {¶26} “VI. THE COURT ERRED IN HOLDING THAT “THE APPELLANT’S

STATEMENT THAT THE DIFFERENCE IN LEVEL BETWEEN THE END OF THE

WOODEN RAMP AND THE TILED PORCH WAS NOT VISIBLE IS FLATLY

CONTRADICTED BY HER OWN PHOTOGRAPHS” BECAUSE PHOTOS OF THE

RUBBER MAT IN PLACE DO NOT SHOW WHAT WAS UNDER THE MAT AND

WHETHER OR NOT CONCRETE OR OTHER RAMPING MATERIAL WAS ON THE

WOODEN END OF THE RAMP UNDER THE MAT, THAT WOULD HAVE ELIMINATED

THE VERTICAL TRIP HAZARD, SIMILAR TO THE CONCRETE SHOWN TO THE

RIGHT OF THE BLACK RUBBER MAT IN THE APPELLANT’S PHOTOGRAPH

EVIDENCE.”
Stark County, Case No. 2017CA00098                                                          11


       {¶27} While appellant lists six assignments of error, we find these assignments of

error deal with two issues: the open and obvious nature of the alleged defect and the

two-inch rule. Accordingly, we will review several of these assignments of error together.

                                   Summary Judgment Standard

       {¶28} Civil Rule 56(C) in reviewing a motion for summary judgment which

provides, in pertinent part:

       Summary judgment shall be rendered forthwith if the pleadings,

       depositions, answers to interrogatories, written admissions, affidavits,

       transcripts of evidence, and written stipulations of fact, if any, timely filed in

       the action, show that there is no genuine issue of 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 mostly strongly in the

       party’s favor. A summary judgment, interlocutory in character, may be

       rendered on the issue of liability alone although there is a genuine issue as

       to the amount of damages.

       {¶29} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the
Stark County, Case No. 2017CA00098                                                          12

undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311

(1981). The court may not resolve any ambiguities in the evidence presented. Inland

Refuse Transfer Co. v. Browning-Ferris Indus. of Ohio, Inc., 15 Ohio St.3d 321, 474

N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the

applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733

N.E.2d 1186 (6th Dist. 1999).

       {¶30} When reviewing a trial court’s decision to grant summary judgment, an

appellate court applies the same standard used by the trial court. Smiddy v. The Wedding

Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter

de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243.

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

informing the trial court of the basis of the motion and identifying the portions of the record

which demonstrate the absence of a genuine issue of fact on a material element of the

non-moving party’s claim. Drescher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996).

Once the moving party meets its initial burden, the burden shifts to the non-moving party

to set forth specific facts demonstrating a genuine issue of material fact does exist. Id.

The non-moving party may not rest upon the allegations and denials in the pleadings, but

instead must submit some evidentiary materials showing a genuine dispute over material

facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791 (12th Dist. 1991).

                                              I., III., V.

       {¶32} In her first, third, and fifth assignments of error, appellant contends the trial

court erred in granting summary judgment based upon the open and obvious doctrine.
Stark County, Case No. 2017CA00098                                                         13


       {¶33} The issue in this case is whether Wasabi House was negligent. In order to

establish a claim for negligence, a plaintiff must show: (1) a duty on the part of defendant

to protect the plaintiff from injury; (2) a breach of that duty; and (3) an injury proximately

resulting from the breach. Jeffers v. Olexo, 43 Ohio St.3d 140, 539 N.E.2d 614 (1989).

       {¶34} There is no dispute between the parties that on October 17, 2014, appellant

was a business invitee. An invitee is a person who rightfully enters and remains on the

premises of another at the express or implied invitation of the owner and for a purpose

beneficial to the owner. Carpenter v. Mount Vernon Gateway, Ltd., 5th Dist. Knox No.

13CA6, 2014-Ohio-465. The owner or occupier of the premises owes the invitee a duty

to exercise ordinary care to maintain its premises in a reasonably safe condition, such

that its invitees will not unreasonably or unnecessarily be exposed to danger. Paschal v.

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

must warn its invitees of latent or concealed dangers if the owner knows or has reason to

know of the hidden dangers. Id. However, a premises owner is not an insurer of its

invitees’ safety against all forms of accident that may happen. Id. Invitees are expected

to take reasonable precautions to avoid dangers that are patent or obvious. Sidle v.

Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589 (1968).

                                         Open & Obvious

       {¶35} Under Ohio law, a business owner owes no duty to protect an invitee from

dangers that are known to the invitee or are so obvious and apparent to the invitee that

he or she may be reasonably expected to discover them and protect him or her against

them. Sidle v. Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589 (1968).
Stark County, Case No. 2017CA00098                                                       14

       {¶36} In Armstrong v. Best Buy Company, Inc., the Ohio Supreme Court found a

premises owner owes no duty to persons entering the premises regarding dangers that

are open and obvious. 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088. The

rationale of the open and obvious doctrine is that the open and obvious nature of the

hazard itself serves as a warning, so that owners reasonably may expect their invitees to

discover the hazard and take appropriate measures to protect themselves against it.

Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 597 N.E.2d 504 (1992). Therefore,

when a danger is open and obvious, a premises 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. When applicable, the open and obvious doctrine obviates the

duty to warn and acts as a complete bar to any negligence claim. Aycock v. Sandy Valley

Church of God, 5th Dist. Tuscarawas No. 2006AP090054, 2008-Ohio-105.

       {¶37} The law uses an objective, not subjective, standard when determining

whether a danger is open and obvious. Freeman v. Value City Dept. Store, 5th Dist. Stark

No. 2010 CA 00034, 2010-Ohio-4634. The fact that a particular appellant himself or

herself is not aware of the hazard is not dispositive of the issue. Id. It is the objective,

reasonable person that must find the danger is not obvious or apparent.           Id.   The

determinative issue is whether the condition is observable. Aycock v. Sandy Valley

Church of God, 5th Dist. Tuscarawas No. 2006AP090054, 2008-Ohio-105.

       {¶38} Appellant contends courts have ruled whether a condition is open and

obvious is a jury question that is not decided as a matter of law and cites cases in support

of her argument that the open and obvious doctrine is an extremely factual inquiry and

should not be decided via summary judgment. However, this Court has ruled that, in most
Stark County, Case No. 2017CA00098                                                      15

situations, whether a danger is open and obvious presents a question of law. Id. Under

certain circumstances, disputed facts may exist regarding the openness and obviousness

of the danger.    Id.   However, where only one conclusion can be drawn from the

established facts, the issue of whether a risk was open and obvious is decided by the

court as a matter of law. Id. Further, the cases cited by appellant are distinguishable

from the instant case, as in these cases there was conflicting testimony either as to

whether the condition was obscured by a wall or conflicting evidence as to the visibility

on the stairway at the time of the fall. Hill v. Mullins, 2nd Dist. Montgomery No. 27127,

2017-Ohio-1302; Watson v. Bradley, 11th Dist. Trumbull No. 2016-T-0031, 2017-Ohio-

431.

       {¶39} In this case, appellant testified she could see there was a ramp; could see

the condition of the ramp as she was walking; could see the ramp was going up to the

landing; could see the black mat on the ramp; could see the condition of the ramp; was

able to look down and see where she was putting her foot; saw nothing to make her think

there was any reason she shouldn’t step up; it was obvious it was a ramp; and it was

obvious there was a runner on the ramp. Appellant also testified the photographs taken

by her nephew shortly after the incident show the condition of the area on the day of her

fall. These photographs clearly show the lip at the transition from the end of the ramp to

the tile platform and also fully show the slight hump in the black mat. Thus, the slight

difference in height between the end of the ramp and the tiled platform was open and

obvious, and the nature of the condition was observable.

       {¶40} We find this case analogous to cases finding no genuine issue of material

fact exists, particularly the case of Bauermeister v. Real Pit BBQ, LLC, 5th Dist. Delaware
Stark County, Case No. 2017CA00098                                                     16


No. 14 CAE 04 024, 2014-Ohio-4501, in which the plaintiff fell exiting a restaurant. This

Court found the slope and riser deviation was open and recognizable, as observed in the

photographs provided. Id. See also Ryan v. Gaun, 5th Dist. Licking No. 2003CA00110,

2004-Ohio-4032 (rejecting appellant’s argument that the hazard presented by the steep

slope was hidden and latent and finding the hazard presented by the slope was open and

obvious, even though the exact degree of the slope was unknown and finding appellees’

failure to provide notice of the exact slope degree of the ramp does not render the ramp

a latent, hidden danger); Freeman v. Value City Dept. Store, 5th Dist. Stark No. 2010 CA

00034, 2010-Ohio-4634 (holding threshold was open and obvious because it was neither

hidden from view nor concealed as the plaintiff testified nothing obstructed her view and

she had a clear view of where she was going); Snyder v. Kings Sleep Shop, LLC, 6th

Dist. Williams No. WM-13-006, 2014-Ohio-1003 (holding danger posed by ramp in

doorway of store was open and obvious); Jackson v. Board of Pike Commissioners, 4th

Dist. Pike No. 10CA805, 2010-Ohio-4875 (holding danger associated with sidewalk and

handicap ramp was open and obvious because nothing about the danger is hidden or

concealed from view).

       {¶41} Appellant next argues summary judgment is inappropriate due to the

statement in her affidavit that there was no visible hazard on the black rubber mat as she

walked on it.

       {¶42} However, as we stated in Patterson v. Licking Twp., 5th Dist. Licking No.

17-CA-3, 2017-Ohio-1463, “a self-serving affidavit that is not corroborated by any

evidence is insufficient to establish the existence of an issue of material fact,” and “to

conclude otherwise would enable the nonmoving party to avoid summary judgment in
Stark County, Case No. 2017CA00098                                                    17

every case.” See also Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47

(holding “an 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 defeat a motion for summary judgment”).         In her

deposition testimony, appellant stated she could see the condition of the ramp as she

was walking, could see the black mat on the ramp, was able to look down and see where

she was putting her foot, knew she had to step up, and that it was obvious there was a

runner on the ramp. Further, the photographs submitted by appellant and taken by her

nephew contradict appellant’s testimony, as the open and obvious nature of the exposed

lip at the right and left edges of the black runner and the hump visible from the black

rubber mat is fully shown. As in Patterson, appellant has not corroborated her affidavit

with any evidence or included in her affidavit any specific facts which establish the

existence of any issue of material fact.

       {¶43} Appellant finally contends the trial court erred in applying the open and

obvious doctrine because Whitling opined as to how the hazard should have been fixed

by properly replacing the mortar built up on the west side of the ramp. However, as this

Court has previously stated, “the landowner’s duty is not to be determined by questioning

whether the condition could have been made perfect or foolproof. The issue is whether

the conditions that did exist were so open and obvious to any person exercising

reasonable care and watching where she was going.” Bauermeister v. Real Pit BBQ,

LLC, 5th Dist. Delaware No. 14 CAE 04 0024, 2014-Ohio-4501.
Stark County, Case No. 2017CA00098                                                      18

                                   Attendant Circumstances

      {¶44} An exception to the open and obvious doctrine is the existence of attendant

circumstances.   Aycock v. Sandy Valley Church of God, 5th Dist. Tuscarawas No.

2006AP090054, 2008-Ohio-105.         These attendant circumstances may exist which

distract an individual from exercising the degree of care an ordinary person would have

exercised to avoid the danger, and may create a genuine issue of material fact as to

whether a hazard is open and obvious. Id. For this exception to apply, an attendant

circumstance must divert the attention of the injured party, significantly enhance the

danger of the defect, and contribute to the injury. Bovetsky v. Marc Glassman, Inc. 5th

Dist. Stark No. 2016CA00122, 2016-Ohio-7863.

      {¶45} There is no precise definition of attendant circumstances. Mulcahy v. Best

Buy Stores, LP, 5th Dist. Delaware No. 13 CAE 06 0051, 2014-Ohio-1163. Attendant

circumstances are factors that contribute to a fall and are beyond the injured person’s

control. Id. The 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.

Aycock v. Sandy Valley Church of God, 5th Dist. Tuscarawas No. 2006AP090054, 2008-

Ohio-105.

      {¶46} 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. Id., citing McGuire v. Sears, Roebuck &

Co., 118 Ohio App.3d 494, 693 N.E.2d 807 (1st Dist. 1996). Further, an individual’s

particular sensibilities do not play a role in determining whether attendant circumstances
Stark County, Case No. 2017CA00098                                                      19


make the individual unable to appreciate the open and obvious nature of the danger.

Freeman v. Value City Dept. Store, 5th Dist. Stark No. 2010 CA 00034, 2010-Ohio-4634.

Rather, the analysis of attendant circumstances uses an objective test. Mulcahy v. Best

Buy Stores, LP, 5th Dist. Delaware No. 13 CAE 06 0051, 2014-Ohio-1163.

       {¶47} Appellant alleges there are two attendant circumstances that create a

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

first alleges her averment in her affidavit that “her attention was drawn to her family and

other persons on the porch and the activity entering the restaurant through the door” was

sufficient evidence of attendant circumstances to create a genuine issue of material fact.

       {¶48} However, as this Court held in Kraft v. Johnny Biggs Mansfield, LLC, 5th

Dist. Richland No. 2012 CA 0068, 2012-Ohio-5502, “normal traffic” of people coming in

and out of a restaurant is not a circumstance so significant or unusual as to rise to the

level of attendant circumstances.     Further, in Rayburn v. Delaware Co. Agricultural

Society, 5th Dist. Delaware No. 15 CAE 02 0016, 2015-Ohio-1903, we held there was no

evidence to establish the numerous people in the area distracted plaintiff to the point of

reducing the degree of care an ordinary person would exercise. See also Gurcarkowski

v. McPeek Funeral Home, 5th Dist. Licking No. CA-3479, 1990 WL 15752 (finding no

attendant circumstances on a standard pedestrian sidewalk); Freeman v. Value City Dept.

Store, 5th Dist. Stark No. 2010 CA 00034, 2010-Ohio-4634 (finding no attendant

circumstance when plaintiff testified nothing was distracting her at the time of the

incident); Jackson v. Board of Pike Commissioners, 4th Dist. Pike No. 10CA805, 2010-

Ohio-4875 (finding moving to the side to let someone pass on a handicap ramp is not an

attendant circumstance); Frano v. Red Robin Int’l, Inc., 181 Ohio App.3d 13, 2009-Ohio-
Stark County, Case No. 2017CA00098                                                         20


685, 907 N.E.2d 796 (11th Dist.) (finding no attendant circumstances when the record did

not contain evidence the plaintiff was distracted by the atmosphere of the restaurant).

       {¶49} In this case, appellant testified that, at the time of the incident, it was still

light out, there was no precipitation, she had no visibility problems, she could see where

she was walking, and nothing obstructed her view of the ramp or the threshold.

Additionally, appellant specifically stated there was “nothing to distract her” as she was

walking towards the door and she was capable of observing both the ramp and the

threshold in her field of vision. Thus, there is no evidence her family or other people

entering the restaurant distracted appellant to the point of reducing the degree of care an

ordinary person would exercise.

       {¶50} Appellant also argues the black mat was an attendant circumstance

because she was distracted by the mat. However, appellant testified she saw the ramp,

saw the black mat on the ramp, understood she needed to step up to the tiled foyer, and

nothing distracted her as she was walking towards the door. When asked where her left

toe hit, appellant stated, “I’m going to say I’m not positive.” Further, when asked what

was different about moving her left foot that was different from her right foot, appellant

testified, “I don’t know.” Additionally, there is evidence that the mat actually lessened the

vertical distance at the transition between the wooden ramp to the tiled floor. Thus, the

existence of the black mat is not a circumstance that significantly enhanced the danger

of the defect or hazard and contributed to the injury.

       {¶51} We find that reasonable minds could only conclude the threshold was open

and obvious.    We further find no evidence of any attendant circumstances which

enhanced the danger to appellant and contributed to her fall. We therefore find Wasabi
Stark County, Case No. 2017CA00098                                                              21


House owed no duty to appellant and the trial court did not err in granting summary

judgment to Wasabi House. Appellant’s first, third, and fifth assignments of error are

overruled.

                                                II., IV, VI.

       {¶52} In her second, fourth, and sixth assignments of error, appellant argues the

trial court erred in finding the “two inch rule” or the “trivial defect” rule bars recovery in this

case. Appellant contends the difference is substantial and the two-inch rule is not a bright-

line test, but depends on the circumstances. Further, that the two-inch rule does not apply

because the trip point beneath the mat could not be seen and the distance between

appellant’s right foot on the ramp and the step up to the foyer was greater than two inches.

Appellant also contends there were attendant circumstances to render the defect

substantial.

       {¶53} The Ohio Supreme Court has declined to hold property owners and

occupiers liable as a matter of law for injuries due to minor or trivial imperfections that

were not unreasonably dangerous, are commonly encountered, and to be expected. In

Kimball v. Cincinnati, 160 Ohio St. 370, 116 N.E.2d 708 (1953), the Ohio Supreme Court

held that a height variation less than two inches is a slight defect as a matter of law that

precludes a finding of negligence. In Helms v. American Legion, Inc., 5 Ohio St.2d 60,

213 N.E.2d 734 (1966), the Ohio Supreme Court reaffirmed its holding in Kimball and

extended the two-inch rule to privately owned or occupied properties.

       {¶54} In Cash v. Cincinnati, 66 Ohio St.2d 319, 421 N.E.2d 1275 (1981), the Ohio

Supreme Court again reviewed the two-inch rule. The Court clarified the two-inch rule

and stated courts must also consider any attendant circumstances in determining whether
Stark County, Case No. 2017CA00098                                                           22

liability exists for trivial defects. Thus, in Cash, the Ohio Supreme Court established that

a height difference of two inches or less is insubstantial as a matter of law, unless

attendant circumstances are shown to elevate the defect to an unreasonably dangerous

condition. Id.

       {¶55} Appellant contends the two-inch rule is not applicable in this case because

the hazard at issue is not a vertical distance of less than two inches. However, this

argument is contradicted by her expert’s testimony. Whitling stated that, with the mat

removed, the vertical height difference at the transition from the wooden ramp to the tile

floor varied from 7/8 inch to 1 ¼ inch at the highest point. Further, with the mat on the

ramp, Whitling approximated the height difference to be about one inch. Additionally, in

the photographs provided by appellant, taken by her nephew shortly after the incident,

the vertical height difference is shown to be less than two inches.

       {¶56} As     discussed    in   detail   above,   appellant   also   argues    attendant

circumstances elevate the defect to an unreasonably dangerous condition. Appellant

contends this case is analogous to Cash, Hill, and Neura, in which courts found attendant

circumstances provided a genuine issue of material fact as to the two-inch rule. However,

we find these cases distinguishable from the instant case. In Cash, 66 Ohio St.2d 310,

421 N.E.2d 1275 (1981), the Ohio Supreme Court found where a depression is twelve to

fourteen inches wide, a pedestrian who approaches an intersection in a major city had

his attention diverted by traffic signal lights, surrounding vehicular traffic, and other

pedestrian traffic and these conditions would likely tend to increase the dangers of such

a defect in this location. The attendant circumstances present in Cash are not present in

this case. In this case, appellant testified it was still light out, there was no precipitation,
Stark County, Case No. 2017CA00098                                                         23


she had no visibility problems, she could see where she was walking, nothing obstructed

her view of the ramp or threshold, she successfully negotiated the step up with her right

foot, and there was “nothing to distract her” as she was walking towards the door. See

Gurcarkowski v. McPeek Funeral Home, 5th Dist. Licking No. CA-3479, 1990 WL 15752.

       {¶57} Neura v. Goodwill Industries, 9th Dist. Medina No. 11CA0052-M, 2012-

Ohio-2351 is distinguishable from the instant case because the plaintiff in that case

testified her full shopping cart obstructed her view of the ground. In this case, appellant

testified nothing obstructed her view of either the ramp or threshold. Hill v. Mullins, 2nd

Dist. Montgomery No. 27127, 2017-Ohio-1302 is also distinguishable from the instant

case, as the court in that case did not find attendant circumstances to be a person talking

to her, but found a genuine issue of material fact as to attendant circumstances because

plaintiff testified about a wall obscuring her vantage point of the hazard. In fact, the court

noted, “walking behind someone while that person is conversing and/or gesturing is not

an unusual circumstance.” Id. In this case, appellant testified she could look down and

see where she was putting her foot, could see the ramp, could see the runner, and the

ramp and threshold were capable of observation within her field of vision.

       {¶58} Accordingly, we find reasonable minds could only conclude the defect was

trivial and not rendered a substantial one because of any attendant circumstances. See

Callentine v. Mill Investments, 5th Dist. Tuscarawas No. 2017 AP 06 0014, 2017-Ohio-

8634. We find the trial court properly applied the trivial defect rule to bar appellant’s

negligence claim as no duty exists where an alleged defect is minor or insubstantial.

Appellant’s second, fourth, and sixth assignments of error are overruled.

       {¶59} Based on the foregoing, appellant’s assignments of error are overruled.
Stark County, Case No. 2017CA00098                                           24


       {¶60} The May 17, 2017 judgment entry of the Stark County Court of Common

Pleas is affirmed.

By Gwin, P.J., and

Wise, Earle, J., concur;

Hoffman, J., dissents
Stark County, Case No. 2017CA00098                                                          25

Hoffman, J., dissenting

       {¶61} I respectfully dissent from the majority opinion.

       {¶62} While I agree there were no “attendant circumstances” in this case to justify

an exception to the open-and-obvious rule, I find reasonable minds, when considering the

evidence in the light most favorable to Appellant as required by Civ.R. 56, could differ as

to whether the alleged danger was, in fact, open and obvious.

       {¶63} Due to the “give” [flexibility] of the mat the top of the ramp and the fact the

mat covered the offset between the top of the ramp and the tile floor, a reasonable trier-

of-fact could find a lip was created by stepping on the mat near the top of the ramp. Given

the fact a person’s normal gate is to put one foot ahead of the other when walking, it is

not necessarily inconsistent Appellant’s right foot may have safely stepped over the top

of the ramp while Appellant’s left foot caught on the lip created by the “give” of the mat

where the gap existed. I find sufficient evidence exists to create a genuine dispute as to

whether the alleged hazard was open and obvious.

       {¶64} I further disagree with the trial court’s and majority’s determination no

liability exists because the “two-inch rule” bars recovery, finding the height differential was

“trivial.” While the height differential may have been trivial, all the cases applying the two-

inch rule involve situations where the height differential was observable.

       {¶65} Because the black mat covered the gap between the top of the ramp and

the tile floor, the height differential caused by the give in the mat was not observable. As

such, I find the two-inch rule inapplicable when the gap is not open to observation but

rather covered or obscured.
[Cite as McCoy v. Wasabi House, L.L.C., 2018-Ohio-182.]
