[Cite as Dubenion v. DDR Corp., 2016-Ohio-8128.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Laverne Dubenion et al., :
Plaintiffs-Appellants, :
No. 15AP-915
v. : (C.P.C. No. 14CV-7234)
DDR Corporation et al., : (REGULAR CALENDAR)
Defendants-Appellees. :
D E C I S I O N
Rendered on December 13, 2016
On brief: E. Darren McNeal Co., LLC, and E. Darren
McNeal, for appellants. Argued: E. Darren McNeal.
On brief: Roetzel & Andress, LPA, and Bradley L. Snyder,
for appellees. Argued: Jason R. Ramsey.
APPEAL from the Franklin County Court of Common Pleas
HORTON, J.
{¶ 1} Plaintiffs-appellants, Laverne and Walter Dubenion, appeal the
September 1, 2015 judgment of the Franklin County Court of Common Pleas granting
defendants-appellees', DDR Corporation ("DDR"), Kittle's Home Furnishing Center, Inc.
and Kittle's Home Furnishings, Inc. (collectively "appellees"), motion for summary
judgment as a matter of law. For the following reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On July 14, 2014, appellants filed a complaint in the Franklin County Court
of Common Pleas alleging that appellees were negligent in failing to maintain the walkway
in a safe condition and for failing to warn Mrs. Dubenion of the danger presented by the
protruding stone paver in front of Kittle's Home Furnishing Center located at 3740 Easton
Market in Columbus, Ohio (the "Premises").
{¶ 3} On the afternoon of July 13, 2012, the appellants, Mr. & Mrs. Dubenion,
ages 87 and 80, went to Kittle's Furniture Store to go furniture shopping. Mr. Dubenion
No. 15AP-915 2
parked their car next to the handicapped parking spaces and the couple proceeded to walk
to Kittle's. The stone paver walkway appellants used was approximately six to eight feet
long and three feet wide and was surrounded by hedges. When Mrs. Dubenion walked on
the walkway, she tripped and fell on a stone paver protruding from the walkway.
{¶ 4} Mrs. Dubenion claims that she suffered physical and emotional injuries as a
result of tripping on "several raised concrete paver blocks" on the walkway she traversed.
(Compl. at ¶ 7, 15, 29.) Mr. Dubenion asserted a claim for loss of consortium.
{¶ 5} On June 22, 2015, appellees moved for summary judgment on the grounds
that: (1) the alleged hazard at issue was a trivial imperfection for which appellees cannot
be held liable as a matter of law; (2) the alleged hazard was an open and obvious danger
which no warning or precautions were required; and (3) appellees had no obligation
under its lease to conduct any inspection, maintenance or repairs of the premises in
question and cannot be held liable as a matter of law.
{¶ 6} Appellants responded to appellees' motion for summary judgment on
August 3, 2015. Appellants claimed that their attention was diverted forward by the traffic
that ran in between Kittle's and the parking lot as opposed to down at their feet.
Appellants also claimed that hedges surrounding the walkway obstructed their view of the
protruding pavers and traffic. Appellants estimated the height difference of the
protruding paver to be approximately one-half inch. Appellants claimed that
circumstances attendant to the accident precluded summary judgment. Appellants argued
that the hazard at issue was not an open and obvious danger and, as a matter of law and
disputed issues of fact, summary judgment should have been denied. On August 20, 2015,
appellees filed a reply to appellants' response.
{¶ 7} On September 1, 2015, the trial court issued its decision and entry, and
found that:
While numerous arguments are presented by Defendants in
favor of Summary Judgment, the Court is going to focus on
Defendants' argument that they did not owe a duty to Mrs.
Dubenion due to the operation of the two-inch rule. In Ohio,
the two-inch rule is a rule that negates a party's duty to
protect a business invitee in situations where the invitee is
injured due to minor defects on the property. In the case of
Humphries v. C.B. Richard Ellis, Inc. (10th Dist., 2005), 2005
Ohio 6105, the Ohio Tenth District Court of Appeals
No. 15AP-915 3
reaffirmed and explained the two-inch rule. In its opinion, the
Tenth District stated:
" 'Under the common law of premises liability,
the status of the person who enters upon the
land of another (i.e., trespasser, licensee, or
invitee) defines the scope of the legal duty that
the responsible party owes the entrant.' Shump
v. First Continental-Robinwood Assocs. (1994),
71 Ohio St. 3d 414, 417, 1994 Ohio 427, 644
N.E.2d 291. Here, the parties do not dispute that
appellant entered the premises as a business
invitee. "An owner or occupier of the premises
ordinarily owes its business invitees a duty of
ordinary care in maintaining the premises in a
reasonably safe condition and has the duty to
warn its invitees of latent or hidden dangers."
Klauss v. Marc Glassman, Inc., Cuyahoga App.
No. 84799, 2005 Ohio 1306, P 13, citing Paschal
v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d
203, 18 Ohio B. 267, 480 N.E.2d 474. However,
a landowner is not an insurer of an invitee's
safety and is not liable for trivial defects.
Paschal; Blain v. Cigna Corp., Franklin County
App. No. 02AP-1442, 2003 Ohio 4022.
In its decision in Kimball v. Cincinnati (1953),
160 Ohio St. 370, 116 N.E.2d 708, the Ohio
Supreme Court held that slight defects in a
public sidewalk do not constitute sufficient
grounds upon which to impose liability on a
municipality. Over the next 11 years, the court
refined its analysis, holding that variations in
elevation between adjacent sections of a
walkway, where the defect complained of
involved changes of two inches or less, were
only insubstantial imperfections creating no
liability for a municipality. The holdings became
commonly known as the 'two-inch rule.' The
court then extended the 'two-inch rule' to cover
privately owned premises. Helms v. American
Legion, Inc. (1966), 5 Ohio St.2d 60, 213 N.E.2d
734, syllabus. In Helms, the court held that the
owner or occupier of private premises, just like a
municipality, would not be liable for minor
imperfections that are commonly encountered
and are not unreasonably dangerous.
No. 15AP-915 4
In Cash v. Cincinnati (1981), 66 Ohio St.2d 319,
421 N.E.2d 1275, paragraph two of the syllabus.
The Supreme Court of Ohio clarified the 'two-
inch rule,' stating that courts must also consider
any attendant circumstances in determining
whether liability exists for trivial defects. The
holding in Cash established that a height
difference of two inches or less is insubstantial
as a matter of law, but the defect may be proven
substantial by showing sufficient attendant
circumstances. Attendant circumstances are
'any distraction that would come to the
attention of a pedestrian in the same
circumstances and reduce the degree of care an
ordinary person would exercise at the time.'
Blain, supra, at ¶ 11 quoting France v.
Parliament Park Townhomes (Apr. 27, 1994),
Montgomery App. No. 14264, 1994 Ohio App.
LEXIS 1793.
In this case, the trial court found that the 'two-
inch rule' applies to the 'hump' or 'slope' and
that no attendant circumstances exist. We
agree."
Id. at ¶¶ 10-14. It is with this law in mind that the Court must
now render its decision as to Defendants' motion.
Id. at 3-4.
{¶ 8} The trial court then proceeded to apply the facts to the law and rendered the
court's decision:
The only evidence before the Court is that the protruding
stone paver upon which Mrs. Dubenion fell was almost a half-
inch in height. Since this is so, the two-inch rule applies to this
case. There are no attendant circumstances in this matter that
would negate the application of the two-inch rule. Therefore,
Defendants did not owe Mrs. Dubenion a duty to protect her
from the protruding stone paver and her claims against
Defendants fail. Consequently, Mr. Dubenion's claim for loss
of consortium also fails. Finally, the affidavit of Walter C.
Dubenion will not serve to create an issue of fact in this
matter. Defendants' motion must be granted.
After review and consideration, the Court finds Defendants'
motion to be well-taken, and is hereby GRANTED. Judgment
No. 15AP-915 5
is hereby rendered in Defendants' favor. Plaintiffs' Complaint
is hereby DISMISSED WITH PREJUDICE.
(Emphasis sic.) Id. at 7.
II. ASSIGNMENTS OF ERROR
{¶ 9} Appellants appeal, assigning the following two errors for our review:
[I.] THE TRIAL COURT ERRED AS A MATTER OF LAW BY
GRANTING DEFENDANTS/APPELLEES' MOTION FOR
SUMMARY JUDGMENT ON THE BASIS THAT THE
DEFECTIVE SIDEWALK WAS A MINOR DEFECT OF LESS
THAN TWO (2) INCHES.
[II.] THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT AGAINST PLAINTIFFS IN THAT
REASONABLE MINDS COULD DIFFER REGARDING THE
PRESENCE OF ATTENDANT CIRCUMSTANCES.
III. STANDARD OF REVIEW
{¶ 10} Appellate review of summary judgment motions is de novo. Helton v. Scioto
Cty. Bd. of Commrs., 123 Ohio App.3d 158, 162 (4th Dist.1997). "When reviewing a trial
court's ruling on summary judgment, the court of appeals conducts an independent
review of the record and stands in the shoes of the trial court." Mergenthal v. Star Bank
Corp., 122 Ohio App.3d 100, 103 (12th Dist.1997). We must affirm the trial court's
judgment if any of the grounds raised by the movant at the trial court are found to support
it, even if the trial court failed to consider those grounds. Coventry Twp. v. Ecker, 101
Ohio App.3d 38, 41-42 (9th Dist.1995). However, the party against whom the motion for
summary judgment is made is entitled to have the evidence most strongly construed in
that party's favor. Civ.R. 56(C); State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio
St.3d 181, 183 (1997).
{¶ 11} A "party seeking summary judgment, on the ground that the nonmoving
party cannot prove its case, bears the initial burden of informing the trial court of the
basis for the motion, and identifying those portions of the record which demonstrate the
absence of a genuine issue of material fact on the essential element(s) of the nonmoving
party's claims." Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). In accordance with
Civ.R. 56(E), when a properly supported motion for summary judgment is made, the
nonmoving party may not rest upon the mere allegations or denials contained in the
pleadings but must come forward with specific facts demonstrating a genuine issue of fact
No. 15AP-915 6
for trial. If the nonmoving party does not so respond, summary judgment, if appropriate,
shall be entered against him.
IV. MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED
{¶ 12} Appellants argue that the "trial court erred in concluding that the difference
in elevation between the paver stones was less than two inches." (Appellants' Brief at 8.)
Mr. Dubenion testified that the difference in elevation was "almost a half-inch." (Walter
Dubenion Depo. at 19.) Appellant states that Mr. Dubenion's "affidavit supplemented and
clarified his deposition testimony," and such testimony can be considered to create
genuine issues of material fact sufficient to defeat a motion for summary judgment.
(Appellants' Brief at 16.) However, excluding the affidavit of Mr. Dubenion, there is no
evidence that the height of the differential was more than two inches.
{¶ 13} Mr. Dubenion's affidavit fails to satisfy the standards set by the court in
Byrd v. Smith, 110 Ohio St.3d 24 (2006), for justifying a contradictory affidavit attached
to a brief in opposition to a motion for summary judgment. The Byrd court held that
" 'when an affidavit is inconsistent with affiant's prior deposition testimony as to material
facts and the affidavit neither suggests affiant was confused at the deposition nor offers a
reason for the contradictions in her prior testimony, the affidavit does not create a
genuine issue of fact which would preclude summary judgment.' " Id., quoting Lemaster
v. Circleville Long Term Care, Inc., 4th Dist. No. 87 CA 2 (Feb. 22, 1988).
{¶ 14} Additionally, Mr. Dubenion's affidavit relies on unauthenticated photos of
the stone paver in question. Contained in the one photo is a blank index card set against
the protruding stone paver in an errant attempt to demonstrate that the defective paver
measured two inches or more. The trial court found that, even if it could consider the
photos, the photo with the white card is not helpful as there are no metrics to determine
the height of the protruding stone paver. The trial court indicated that it has "no idea how
big the white card is and as such, can make no estimation of the height of the protruding
stone pave[r]." (Sept. 1, 2015 Decision & Entry at 5-6.) Consequently, the trial court
properly determined that it could not consider the unauthenticated photos as evidence.
{¶ 15} Ohio law has remained steadfast over the years, a claimed defect in
sidewalks that is two inches or less is an "insignificant, trivial and unsubstantial condition,
which is not actionable as a matter of law." Cash v. Cincinnati, 66 Ohio St.2d 319, 323
(1981). Attendant circumstances are " 'any distraction that would come to the attention of
No. 15AP-915 7
a pedestrian in the same circumstances and reduce the degree of care an ordinary person
would exercise at the time.' " Humphries v. C.B. Richard Ellis, Inc., 10th Dist. No. 05AP-
483, 2005-Ohio-6105, quoting Blain v. Cigna Corp., 10th Dist. No. 02AP-1442, 2003-
Ohio-4002. "The attendant circumstances must, taken together, divert the attention of
the pedestrian, significantly enhance the danger of the defect, and contribute to the fall.
* * * Both circumstances contributing to and those reducing the risk of defect must be
considered." Stockhauser v. Archdiocese of Cincinnati, 97 Ohio App.3d 29, 34 (2d
Dist.1994).
{¶ 16} Appellants point to three alleged attendant circumstances present at the
time Mrs. Dubenion fell: (1) traffic in the parking lot; (2) hedges around the walkway; and
(3) a sharp corner. However, without Mr. Dubenion's affidavit, the record is void of any
evidence of the above alleged attendant circumstances. Mrs. Dubenion specifically
testified at her deposition that the hedges did not block her view of the protruding stone
paver or the possible vehicular traffic. (Mrs. Dubenion Depo. at 108, 129, 150.) She gave
clear and repeated testimony that she was halfway up the stone paver walkway when she
fell. Mrs. Dubenion never testified about any sharp corner or difficulty in seeing the stone
paver walkway due to the hedges or the corner she navigated to get to the walkway.
Instead, Mrs. Dubenion testified that she was looking straight ahead and was not looking
at where she was walking. (Mrs. Dubenion Depo. at 134-36.) There were no attendant
circumstances when she fell that would preclude the trial court from applying the two-
inch rule.
{¶ 17} Based on our review of the facts and the relevant law, we agree with the trial
court. Appellants did not present sufficient evidence that would convince this court that
attendant circumstances existed to preclude the application of the trivial imperfection
doctrine. Therefore, there is no genuine issue of material fact for trial. For the foregoing
reasons, appellants' assignments of error are overruled.
V. DISPOSITION
{¶ 18} Having overruled appellants' assignments of error, we affirm the judgment
of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK and BRUNNER, JJ., concur.
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