Mansfield v. Defiance , 2013 Ohio 1391 ( 2013 )

[Cite as Mansfield v. Defiance, 2013-Ohio-1391.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
THERESA MANSFIELD, ET AL.,
PLAINTIFFS-APPELLANTS, CASE NO. 4-12-20
v.
CITY OF DEFIANCE, OHIO, ET AL, OPINION
DEFENDANTS-APPELLEES.
Appeal from Defiance County Common Pleas Court
Trial Court No. 11-CV-41656
Judgment Affirmed
Date of Decision: April 8, 2013
APPEARANCES:
Danny A. Hill, II for Appellants
William P. Lang for Appellee, City of Defiance
Case No. 4-12-20
SHAW, J.
{¶1} Plaintiffs-appellants, Theresa and James Mansfield (collectively
referred to as the “Mansfields”), appeal the August 2, 2012 judgment of the
Defiance County Court of Common Pleas granting the motion for summary
judgment filed by defendants-appellees, the City of Defiance and Transtar
Builders and Developers, Inc., (collectively referred to as “the City”), and
dismissing the Mansfields’ complaint.
{¶2} On December 4, 2009, Theresa was injured when she tripped on a
raised concrete seam located in a crosswalk on a public street in downtown
Defiance. Theresa suffered a hairline fracture of her knee cap and received
multiple stitches on her face as a result of the fall.
{¶3} On December 2, 2011, Theresa filed a complaint alleging the City to
be negligent for failing to repair the alleged defect in the crosswalk. The
complaint also listed Theresa’s husband, James, as a plaintiff on a loss of
companionship and consortium claim.
{¶4} The City filed an answer generally denying the Mansfields’ claims.
{¶5} During the course of discovery, Theresa was deposed by the City and
affidavits of Theresa and the Defiance City Engineer were filed.
{¶6} The parties subsequently filed cross-motions for summary judgment.
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{¶7} On August 2, 2012, the trial court granted the City’s motion for
summary judgment and dismissed the Mansfields’ complaint. Specifically, the
trial court found that Theresa and James failed to submit evidence demonstrating
that the City was negligent. The trial court also applied the so-called “two inch
rule” and found the defect to be insubstantial as a matter of law. The trial court
further found that Theresa failed to present evidence establishing that attendant
circumstances were present at the time of her fall to render the defect substantial.
See Cash v. Cincinnati, 66 Ohio St.2d 319, 323-24 (1981)(stating that a difference
in height of two inches or less in the concrete of the public walkway create a
presumption that the defect is insubstantial and not actionable as a matter of law
which may be rebutted by a showing of attendant circumstances sufficient to
render the defect substantial).
{¶8} The Mansfields filed this appeal, asserting the following assignment
of error.
THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT IN FAVOR OF DEFENDANT-APPELLEE [sic],
CITY OF DEFIANCE, ET. AL, AS THERE REMAIN
MATERIAL ISSUES OF FACT THAT SHOULD BE
DETERMINED BY A JURY.
{¶9} In their sole assignment of error, the Mansfields argue that the trial
court erred when it granted the City’s motion for summary judgment.
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Specifically, the Mansfields maintain that genuine issues of material fact exist as
to whether attendant circumstances were present to render the defect substantial.
{¶10} Initially, we note that an appellate court reviews a grant of summary
judgment de novo, without any deference to the trial court. Conley–Slowinski v.
Superior Spinning & Stamping Co., 128 Ohio App.3d 360, 363 (1998). A grant of
summary judgment will be affirmed only when the requirements of Civ.R. 56(C)
are met. This requires the moving party to establish: (1) that there are no genuine
issues of material fact, (2) that the moving party is entitled to judgment as a matter
of law, and (3) that reasonable minds can come to but one conclusion and that
conclusion is adverse to the non-moving party, said party being entitled to have
the evidence construed most strongly in his favor. Civ.R. 56(C); see Horton v.
Harwick Chem. Corp., 73 Ohio St.3d 679, 1995-Ohio-286, paragraph three of the
syllabus.
{¶11} The party moving for summary judgment bears the initial burden of
identifying the basis for its motion in order to allow the opposing party a
“meaningful opportunity to respond.” Mitseff v. Wheeler, 38 Ohio St.3d 112,
syllabus (1988). The moving party also bears the burden of demonstrating the
absence of a genuine issue of material fact as to an essential element of the case.
Dresher v. Burt, 75 Ohio St.3d 280, 292, 1996-Ohio-107. Once the moving party
demonstrates that he is entitled to summary judgment, the burden shifts to the non-
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moving party to produce evidence on any issue which that party bears the burden
of production at trial. See Civ.R. 56(E).
{¶12} Generally, municipalities are not liable as a matter of law for minor
defects in sidewalks and other walkways, including crosswalks, because these are
commonly encountered and pedestrians should expect such variation in the
walkways. The Second Appellate District has explained this rule, often called the
“two-inch rule,” as follows:
Courts developed the rule that a difference in elevation between
adjoining portions of a sidewalk or walkway that is two inches
or less in height is considered insubstantial as a matter of law
and thus does not present a jury question on the issue of
negligence. In Cash v. Cincinnati, 66 Ohio St.2d 319, 20 O.O.3d
300, 421 N.E.2d 1275, the court clarified the “two-inch” rule,
stating that courts must also consider any attendant
circumstances in determining liability for defects in the
walkway. * * * Thus Cash established a rebuttable presumption
that height differences of two inches or less are insubstantial
[and not actionable] as a matter of law. The presumption may
be rebutted by showing attendant circumstances sufficient to
render the defect substantial.
Stockhauser v. Archdiocese of Cincinnati, 97 Ohio App.3d 29, 33 (2d Dist. 1994)
(citations omitted). Attendant circumstances may make an insubstantial defect
actionable if it is reasonably foreseeable that an insubstantial defect will cause an
injury. See Gates v. Speedway Superamerica, L.L.C., 8th Dist. No. 90563, 2008–
Ohio–5131, ¶ 23. “The attendant circumstances must be such that a reasonable
trier of fact could find that the defect was substantial and unreasonably dangerous
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in order to prevent summary judgment for the defendants.” Boros v. Sears,
Roebuck & Co., 8th Dist. No. 89299, 2007–Ohio–5720, ¶ 14. “Attendant
circumstances may include the condition of the sidewalk as a whole, the volume of
pedestrian traffic, the visibility of the defect, and whether the accident site was
such that one’s attention could easily be diverted.” Armstrong v. Meade, 6th Dist.
No. L–06–1322, 2007–Ohio–2820, ¶ 14.
{¶13} The following evidence was before the trial court upon its
consideration of the cross-motions for summary judgment.
{¶14} In her deposition, Theresa testified that on December 4, 2009 at
approximately 6:50 pm, she was with four other people and was standing at the
corner of First and Clinton streets. She explained that the group waited for the
crosswalk signal to indicate that it was safe to cross, and then observed that the
traffic had stopped. Theresa recalled that she walked off the handicap ramp and
began to cross the street. Theresa surmised that the left toe of her shoe must have
caught on the raised asphalt seam in the crosswalk. Theresa stated that she
tripped, flew through the air, and fell on the street. Theresa testified that she
suffered a hairline fracture of her kneecap and injuries to her face, which required
stitches.
{¶15} Theresa also filed an affidavit and averred the following:
(1) Affiant is one of the Plaintiffs in the above titled action.
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(2) Affiant further states that the attached exhibit is a true and
accurate representation of the crosswalk and street in the same
state of dis-repair, and in the same condition in the [sic] as they
were on the day she suffered her injuries as alleged in the
complaint filed in the above captioned matter.1
(3) Affiant further states she tripped over the improperly
repaired and maintained crosswalk area of the roadway,
approximately two to three feet into the street, well after the
brick handicapped ramp had ended.
(4) Affiant further states that she tripped over the improperly
repaired and maintained crosswalk area of the roadway,
approximately two to three feet into the street, on the raised
portion of the asphalt, as indicated by the circled areas in the
attached Exhibit.
(Aff. Apr. 4, 2012).
{¶16} The City submitted an affidavit from Lee Rausch, the Defiance City
Engineer, who averred the following.
1. I am and was, at all times material, the City Engineer for
the City of Defiance. I am a licensed Ohio Professional Engineer
(P.E.).
2. I am familiar with the crosswalk on Clinton St. at the
corner of First St. and Clinton St.
3. Records of complaints regarding the safety of the streets in
Defiance, Ohio are kept at my direction, and are under my
general control in the ordinary course of business as the City
Engineer.
1
The exhibits referred to in Theresa’s affidavit were photographs of the crosswalk. The record indicates
that Theresa took the photographs on December 6, 2009, during the day. The photographs depict a raised
seam between two layers of asphalt which extends the entire width of the crosswalk.
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4. Any resurfacing of a city street needs approval from the
City Engineering Department and the records are kept at the
Engineering Department.
5. There was no record of any complaint about the safety of
this crosswalk made with the City Engineer’s office prior to
December 4, 2009. The City Engineer’s office did not receive
any notice of a defect in this street crosswalk.
6. It is my opinion that when a citizen makes a complaint
about a dangerous area of a city street, that complaint is either
routed to the Engineering Department or the Street Department.
7. I was never notified that any member of the Street
Department received a complaint about the safety of this
crosswalk.
8. I am familiar with the standard operating procedure of the
Street Department when it comes to repairing city streets to
remove dangerous areas.
9. It is standard operating procedure for the Street
Department to repair any seam in a street that is above one inch,
and presents a danger to pedestrians.
10. The standard operating procedure is to patch the seam to
remove any dangerous condition, or to resurface the street if a
patch will not suffice. If a patch is not a viable option due to
winter weather, the standard operating procedure is to place a
barricade at the dangerous area to alert the public, until the
area can be patched.
11. One of my responsibilities as City Engineer is to be aware
of the conditions and repairs relating to city streets.
12. Prior to December 4, 2009 there was no recent construction
that took place at this intersection.
13. The Street Department made no repair, nor did they
barricade the seam on Clinton St. prior to December 4, 2009.
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The Street Department continuously reviews the condition of
city streets, and determined no dangerous area existed. No
complaint was ever received regarding this crosswalk.
14. In 2008 all city streets were evaluated to determine which
streets needed resurfacing, the evaluation was based on the
conditions of the streets. Neither the Street Department nor the
Engineering Department determined that Clinton St. was of any
danger to the public, or that it needed resurfaced immediately.
15. I have received the plaintiff’s provided photographs of the
seam in Clinton St., which is something that I often do and have
been trained to do as a civil engineer to preliminarily evaluate
and determine the existence of hazards in the streets. In my
determination, the seam is less than one inch high, and provided
no danger to the general public crossing the street at that
location.
16. In 2010 Clinton St. was resurfaced and some construction
was done on the sidewalks of Clinton St. The resurfacing was
not done in relation to this lawsuit. The resurfacing was pre-
planned well before December, 2009. The resurfacing had no
relation to any perceived danger arising from a fall that took
place in December, 2009.
17. I am aware that every year the City allocates over $450,000
to the resurfacing of City streets.
(Aff. Apr. 13, 2012).
{¶17} As previously stated, the two-inch rule establishes a presumption that
municipalities have no duty to repair a defect in a public walkway measuring two
inches or less in height unless attendant circumstances exist making it reasonably
foreseeable that the defect will cause an injury. See, generally, Cash v. Cincinnati,
supra.
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{¶18} Here, the only evidence in the record regarding the height of the
defect in the crosswalk is found in the affidavit of Rausch, the City Engineer. In
his affidavit, Rausch opined that “the seam is less than one inch high, and
provided no danger to the general public crossing the street at that location.”
(Rausch Aff. at ¶ 15). The Mansfields failed to provide any evidence
contradicting Rausch’s opinion or even suggesting that the defect was greater than
two-inches. Therefore, the only evidence in the record supports the conclusion of
the trial court that the two-inch rule is applicable to this case.
{¶19} Next, the Mansfields failed to present any evidence that attendant
circumstances were present at the time of Theresa’s fall which would preclude the
two-inch rule from barring their negligence claim against the City. Although,
Theresa testified in her deposition that it was dark at the time she fell, she never
states that the darkness or her inability to see the seam in the crosswalk
contributed to her fall. Theresa stated in her deposition that she waited for “the
crosswalk to tell us we could walk * * * when the light changed we watched to
make sure the traffic all stopped[.]” (Depo. at 12-13). Theresa’s statement in this
regard suggests that any potential distraction caused by automobile traffic was
minimized. Moreover, there is no indication in the record that there was heavy
pedestrian traffic in the crosswalk or that there were any other pedestrians in the
crosswalk at the time besides Theresa and the four other people she was with in
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her group. Notably, there is also no indication in the record that the other people
who were in the crosswalk with Theresa experienced similar difficulty when
traversing the asphalt seam.
{¶20} Furthermore, the affidavit of the City Engineer stated that prior to
Theresa’s fall, the City had received no complaints about the seam in the
crosswalk, that the City maintained a standard protocol to remove any seam that is
more than one inch in height and presented a danger to pedestrians, and that in
2008 the City evaluated the streets in need of repair and this particular crosswalk
was not determined to be one of them. Again, the Mansfields failed to provide
any evidence contradicting the statements of City Engineer regarding the safety of
the crosswalk at the time of Theresa’s fall.
{¶21} After construing the evidence most strongly in favor of the non-
moving party, we conclude that the Mansfields failed to meet their burden to
demonstrate that genuine issues of material fact remain as to whether 1) the defect
in the crosswalk was insubstantial and 2) as to whether attendant circumstances
existed making it reasonably foreseeable that the defect would cause an injury.
Accordingly, we find that the trial court did not err in concluding that the two-inch
rule barred the Mansfields’ negligence claim, that summary judgment was
appropriate, and that the City was entitled to judgment as a matter of law. The
Mansfields’ assignment of error is overruled.
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{¶22} For all these reasons, the judgment of the Defiance Court of
Common Pleas is affirmed.
Judgment Affirmed
WILLAMOWSKI and ROGERS, J.J., concur.
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