Carnes v. Siferd

SUPREME COURT CASES

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Carnes v. Siferd

State: Ohio

Court: Ohio Southern District Court

Docket No: 2011-Ohio-4467

Case Date: 09/06/2011

Plaintiff: Carnes

Defendant: Siferd

Preview:[Cite as Carnes v. Siferd, 2011-Ohio-4467.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
BETHEL CARNES,
PLAINTIFF-APPELLANT,
-and-                                         CASE NO.   1-10-88
PAUL CARNES,
PLAINTIFF-APPELLEE,
v.                                            O P I N I O N
LARRY G. SIFERD, ET AL.,
DEFENDANTS-APPELLEES.
Appeal from Allen County Common Pleas Court
Trial Court No. CV2009 1110
Judgment Affirmed
Date of Decision:    September 6, 2011
APPEARANCES:
Lawrence A. Huffman for Appellant
J. Alan Smith for Appellee

Case No. 1-10-88
ROGERS, P.J.
{¶1} Plaintiff-Appellant, Bethel Carnes, appeals from the judgment of the
Court of Common Pleas of Allen County granting Defendants-Appellees’, Larry
and Laura Siferd (the “Siferds”), summary judgment.1   On appeal, Bethel argues
that the trial court erred in granting summary judgment when genuine issues of
material fact exist as to whether the defect which caused her injury was open and
obvious.   Based on the following, we affirm the judgment of the trial court.
{¶2} In  October                                                                                               2009,  Bethel  filed  a  complaint  asserting  claims  for
damages incurred as a result of injuries she suffered from a trip and fall accident
allegedly caused by the Siferds’ negligence in failing to maintain the sidewalk on
their property.   Specifically, Bethel alleged that the Siferds negligently failed to
repair their sidewalk after they were put on notice by the City of Lima that a
section of the sidewalk was raised two inches above an adjoining section, creating
a hazardous condition that was the direct and proximate cause of her fall and
resulting injuries.
{¶3} In  that  same  month,  the  Siferds  filed  their  answer,  denying  the
allegations set forth in Bethel’s complaint and asserting that the sidewalk’s defect
was open and obvious.
1 Although Bethel and her husband, Paul, were named as plaintiffs in the present action, only Bethel filed a
notice of appeal with this Court.   Consequently, this Court does not have jurisdiction over Paul’s claims.
Thus, the same will not be considered in this opinion.
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{¶4} In May 2010, Bethel testified, via deposition, that she and Paul are
residents of Sidney, Ohio.   On a sunny June 5, 2009, Bethel and her daughter,
Victoria Carnes, were in Lima visiting a family member hospitalized at St. Rita’s
Medical Center.   After visiting their family member, Bethel and Victoria decided
to visit the Lima Mall (“Mall”).   Bethel’s route to the Mall took her down Market
Street.   As Bethel drove down Market Street, she caught sight of a garage sale
sign.   Bethel decided to visit the garage sale, which was located at the Siferds’
residence.   After parking on Market Street, Bethel and Victoria walked on the
sidewalk towards the garage sale.    Victoria walked behind Bethel.    As Bethel
approached the garage sale her attention was focused on the sale’s merchandise,
which she admitted “I shouldn’t have done probably.”   Bethel’s Depo. Tr., pp. 53-
54.    Despite having focused her attention on the sale, Bethel was aware of a
bicyclist riding on the sidewalk towards her.   Bethel, however, testified that she
was  not  distracted  by  the  bicyclist,  nor  did  she  contend  that  the  bicyclist’s
presence was an attendant circumstance.   With her attention focused on the sale,
Bethel continued walking down the sidewalk when her foot caught a ledge in the
sidewalk causing her to trip and fall to the ground.   As a result of her fall Bethel
broke her wrist.
{¶5} Bethel continued that the ledge in the sidewalk was the result of a
section of sidewalk being elevated higher than an adjoining section.   Bethel further
testified that she had never walked down that sidewalk prior to the accident; that
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her attention was focused on the sale in an attempt to determine whether she
wanted to visit it; that she did not see the ledge prior to her fall; and, that she could
not recall whether there was anything that would have obstructed her view of the
ledge.
{¶6} In that same month, Victoria testified, via deposition, that she and
Bethel were in Lima and decided to visit the Mall.   On their way to the Mall,
Bethel decided to stop at a garage sale on Market Street.   Victoria testified that she
and Bethel walked down the sidewalk towards the garage sale, and that she walked
behind Bethel.   Victoria continued that as she and Bethel approached the garage
sale, Bethel’s attention was focused on the sale; that she (Victoria) saw the ledge
in the sidewalk before Bethel tripped on it; that nothing impeded her view of the
ledge as she approached it; that she attempted to warn Bethel of the ledge; and,
that Bethel tripped on the ledge.
{¶7} In October 2010, the Siferds filed a motion for summary judgment,
arguing  that  there  were  no  genuine  issues  of  material  fact.    Specifically,  the
Siferds  argued  that  the  ledge  was  an  open  and  obvious  hazard,  and,  in  the
alternative, the hazard was insubstantial as a matter of law pursuant to the “two
inch rule” recited in Cash v. Cincinnati (1981), 66 Ohio St.2d 319.   In support of
their motion, the Siferds filed pictures of the sidewalk where Bethel tripped, a
notice from the City of Lima concerning the ledge in the sidewalk, and affidavits
of Laura and Larry Siferd, and Austin Klaus, co-counsel for the Siferds.   Larry’s
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affidavit asserted that the ledge, on which Bethel tripped, measured one and a half
inches at its highest point.
{¶8} In that same month, Bethel filed a memorandum in opposition to the
Siferds’ motion for summary judgment, contending, in pertinent part, that genuine
issues of material fact existed as to whether there were attendant circumstances
surrounding  her  accident  that  were  sufficient  to  rebut  the                                              “two  inch  rule’s”
presumption  that  deviations  in  a  walkway  measuring  less  than  two-inches  in
height  are  insubstantial  and  not  actionable;  and  whether  the  same  attendant
circumstances negated the open and obvious nature of the ledge.
{¶9} In November 2010, the trial court granted summary judgment in favor
of the Siferds.   Specifically, the trial court found that Bethel’s attention on the
garage  sale,  her  unfamiliarity  with  the  sidewalk,  and  the  foot  traffic  on  the
sidewalk were attendant circumstances that created an issue of material fact as to
whether the “two inch rule’s” presumption was rebutted.2   However, the trial court
also found that there were no issues of material fact as to whether the ledge was an
open and obvious hazard, and on that basis granted summary judgment in favor of
the Siferds.
{¶10} It is from the trial court’s grant of summary judgment that Bethel
appeals, presenting the following assignment of error for our review.
2 There is a rebuttable presumption under the two-inch-rule that provides that attendant circumstances can
render a presumptively insubstantial defect, i.e., a difference in elevation in a sidewalk or walkway that is
less than two-inches high, a substantial defect.   Kimball v. Cincinnati (1953), 160 Ohio St. 370; Cash,
supra.
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Case No. 1-10-88
Assignment of Error No. I
THE  TRIAL  COURT  ERRED  IN  GRANTING  SUMMARY
JUDGMENT  WHEN  GENUINE  ISSUES  OF  MATERIAL
FACT  EXIST  AS  TO  WHETHER  THE  DEFECT  WHICH
CAUSED   APPELLANT’S   INJURY   WAS   OPEN   AND
OBVIOUS.
{¶11} In her sole assignment of error, Bethel argues that the trial court
erred in granting summary judgment to the Siferds.   Specifically, Bethel contends
that  there  were  attendant  circumstances  surrounding  her  trip and  fall  that  are
sufficient to create an issue of material fact as to whether the ledge was an open
and obvious hazard.   We disagree.
Standard of Review
{¶12} An appellate court reviews a summary judgment order de novo.
Hillyer v. State Farm Mut. Auto. Ins. Co. (1999), 131 Ohio App.3d 172,  175.
Accordingly, a reviewing court will not reverse an otherwise correct judgment
merely because the lower court utilized different or erroneous reasons as the basis
for its determination.   Diamond Wine & Spirits, Inc. v. Dayton Heidelberg Distr.
Co., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶25, citing State ex rel. Cassels v.
Dayton City School Dist. Bd. of Ed.,  69 Ohio St.3d  217,  222,  1994-Ohio-92.
Summary judgment is appropriate when, looking at the evidence as a whole: (1)
there is no genuine issue as to any material fact, and  (2) the moving party is
entitled to judgment as a matter of law.   Civ.R. 56(C).   In conducting this analysis
the court must determine “that reasonable minds can come to but one conclusion
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and that conclusion is adverse to the party against whom the motion for summary
judgment is made, [the nonmoving] party being entitled to have the evidence or
stipulation construed most strongly in the [nonmoving] party’s favor.”   Id.   If any
doubts exist, the issue must be resolved in favor of the nonmoving party.   Murphy
v. Reynoldsburg, 65 Ohio St.3d 356, 358-59, 1992-Ohio-95.
{¶13} The party moving for summary judgment has the initial burden of
producing  some  evidence  which  demonstrates  the  lack  of  a  genuine  issue  of
material fact.   Dresher v. Burt, 75 Ohio St.3d 280, 292, 1996-Ohio-107.   In doing
so, the moving party is not required to produce any affirmative evidence, but must
identify those portions of the record which affirmatively support his argument.   Id.
at  292.   The nonmoving party must then rebut with specific facts showing the
existence of a genuine triable issue; he may not rest on the mere allegations or
denials of his pleadings.   Id.; Civ.R. 56(E).
Analysis
{¶14} “[I]n order to establish actionable negligence, one seeking recovery
must show the existence of a duty, the breach of the duty, and injury resulting
proximately therefrom.”   Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 285.
At common law, the legal duty owed by a landowner to one who enters upon his
land was contingent upon the status of the entrant: trespasser, licensee, or invitee.
Shump v. First Continental-Robinwood Assoc.,  71 Ohio St.3d  414,  417,  1994-
Ohio-427.   “Business invitees are persons who come upon the premises of another,
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Case No. 1-10-88
by invitation, express or implied, for some purpose which is beneficial to the
owner.”   Neumeier v. Lima, 3d Dist. No. 1-05-23, 2005-Ohio-5376, ¶13, quoting
Light v. Ohio University (1986), 28 Ohio St.3d 66, 68.   The duty of care owed by a
landowner to a business invitee is to exercise ordinary care to keep the premises in
a reasonably safe condition so as to not expose the individual to any unnecessary
or unreasonable risks of harm.   Paschal v. Rite Aid Pharmacy, Inc. (1985), 18
Ohio St.3d 203, citing Campbell v. Hughes Provision Co. (1950), 153 Ohio St. 9.
However, a landowner does not owe invitees a duty to warn of any dangers on his
property which are open and obvious.   Armstrong v. Best Buy Co., Inc., 99 Ohio
St.3d                                                                                   79,                 2003-Ohio-2573,   ¶5.     More  specifically,  a  pedestrian  must  use
reasonable  care  to  detect  and  avoid  open  and  obvious  defects.    Shepard  v.
Cincinnati,                                                                             168  Ohio  App.3d   444,              2006-Ohio-4286,                                         ¶27;  Grossnickle  v.
Germantown (1965), 3 Ohio St.2d 96.
{¶15} The  open  and  obvious  doctrine  “acts  as  a  complete  bar  to  any
negligence claims.”   Armstrong, 2003-Ohio-2573, at ¶5.   The justification for the
doctrine is that  “the open and obvious nature of the hazard itself serves as a
warning.    Thus,  the  owner  or  occupier  may  reasonably  expect  that  persons
entering the premises will discover those dangers and take appropriate measures to
protect themselves.”   Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 644,
1992-Ohio-42.
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{¶16} In most situations, whether a danger is open and obvious presents a
question of law.   See Lang v. Holly Hill Motel, 4th Dist. No. 06CA18, 2007-Ohio-
3898, ¶23, citing Hallowell v. Athens,  4th Dist. No.  03CA29, 2004-Ohio-4257,
¶21, and   Nageotte v. Cafaro Co., 6th Dist. No. E-04-15, 2005-Ohio-2098, ¶28.
There may, however, be situations where disputed facts may exist regarding the
openness and obviousness of a hazard, possibly creating an issue of material fact.
Ray v. Wal-Mart Stores, Inc., 4th Dist. No. 08CA41, 2009-Ohio-4542, ¶29; Lang,
2007-Ohio-3898,  at                                                                  ¶23.    One  of  those  situations  involves  the  existence  of
attendant circumstances.
{¶17} Attendant circumstances may exist which distract an individual from
exercising the degree of care an ordinary person would have exercised to avoid the
danger.   Aycock v. Sandy Valley Church of God, 5th Dist. No. 2006 AP 09 0054,
2008-Ohio-105, ¶26, citing McGuire v. Sears, Roebuck & Co. (1996), 118 Ohio
App.3d 494, 499.   An attendant circumstance is usually an active event as opposed
to a static condition.
{¶18} An attendant circumstance has been defined as follows:
“[A] factor that contributes to the fall and is beyond the control
of the injured party. * * * The phrase refers to all facts relating
to the event, such as time, place, surroundings or background
and the conditions normally existing that would unreasonably
increase the normal risk of a harmful result of the event. * * *
However,                                                                             ‘[b]oth  circumstances  contributing  to  and  those
reducing the risk of the defect must be considered.’”
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Williams v. Lowe’s of Bellefontaine, 3d Dist. No. 8-06-25, 2007-Ohio-2045, ¶18,
quoting Benton v. Cracker Barrel Old Country Store, Inc., 10th Dist. No. 02AP-
1211,  2003-Ohio-2890,  ¶17, quoting Sack v. Skyline Chili, Inc.,  12th Dist. No.
CA2002-09-101, 2003-Ohio-2226, ¶20.
{¶19} Turning to the present case, we first consider whether the ledge was
an open and obvious hazard.   Determination of whether a particular hazard is open
and  obvious  does  not  revolve  around  the  plaintiff’s  peculiar  sensibilities  or
whether the plaintiff actually observed the danger.   See Lang, 2007-Ohio-3898, at
¶25.    Instead, the question is whether, under an objective standard, the danger
would have been discernible to a reasonable person.   Ray, 2009-Ohio-4542, ¶22,
citing Lang, 2007-Ohio-3898 at ¶25.   In applying this objective standard we first
consider the hazard itself.   See, generally Lowe’s of Bellefontaine,  2007-Ohio-
2045 (This Court first considered the nature of the hazard itself, finding it to be
open and obvious, and then addressed whether there were attendant circumstances
which obviated the open and obvious nature of the hazard.); Riehl v. Bird’s Nest,
Inc., 6th Dist. No. OT-09-003, 2009-Ohio-6680; Melvin v. Badger School Dist.
Bd. of Edn., 11th Dist. No. 2007-T-0056, 2007-Ohio-6403.   If the hazard itself is
not objectively open and obvious we need not reach the issue of whether attendant
circumstances “unreasonably increased the normal risk” of the hazard.
{¶20} Based on the record, we find, as a preliminary matter, that the ledge
in the sidewalk was an open and obvious hazard.   June 5, 2009, was a sunny day.
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The ledge at its highest point was one and a half inches above the adjoining
section of sidewalk.   The ledge was not camouflaged by foliage, debris, or the like.
Moreover, Victoria’s testimony that she attempted to warn Bethel of the ledge
demonstrates that the raised portion of the ledge was obvious.   Based on these
simple facts we find that reasonable minds could come to but one conclusion, that
the ledge was an open and obvious hazard.
{¶21} Having found that the ledge was an open and obvious hazard, we
must next consider whether the allegedly attendant circumstances unreasonably
increased the normal risk of the hazard.   In doing so we must consider whether the
circumstances alleged to have existed at the time of Bethel’s fall were sufficient to
distract an individual from exercising the degree of care an ordinary person would
have exercised to avoid the ledge. See Aycock, supra.
{¶22} In  her  appellate  brief,  Bethel  cites  three  allegedly  attendant
circumstances which she contends obviate the open and obvious nature of the
ledge: (1) the garage sale diverted her attention from the sidewalk; (2) she had not
previously traversed that sidewalk; and,  (3) the Siferds were on notice of the
alleged defect.   Upon review of the record, we note that Bethel did not originally
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cite the Siferds’ notice of the ledge as an attendant circumstance.3   Rather, Bethel,
in her motion in opposition, cited foot traffic on the sidewalk as an attendant
circumstance, a fact reflected in the trial court’s judgment entry.   Consequently,
we  will  address  whether  foot  traffic  on  the  side  walk  was  an  attendant
circumstance.
{¶23} Bethel contends that the trial court should have relied on Heckman v.
Mayfield Country Club, 8th Dist. No. 88941, 2007-Ohio-5330.   In Heckman, Mrs.
Heckman brought suit against a private club as a result of a trip and fall accident,
which took place in the threshold of the club’s main entrance.   Mrs. Heckman was
a guest at a wedding held at the club.   Mrs. Heckman proceeded through the club’s
main  entrance  carrying  a  present.    Upon  opening  the  door,  Mrs.  Heckman’s
attention was drawn toward the wedding party standing in the foyer immediately
beyond the vestibule.   As she stepped into the vestibule, she either caught her right
shoe on the raised threshold of the door or hit the threshold with her foot, injuring
her foot.   The facts of the case also revealed that:
Mrs. Heckman described the threshold as “not a step, and it’s
not  a  flat  surface  like  many  thresholds  are  where  you  walk
across them. It is a strange situation in between.”   She testified
3 In her appellate brief, Bethel contends that the Siferds’ notice of the ledge was an attendant circumstance.
The Siferds argue that notice of an otherwise open and obvious hazard does not constitute an attendant
circumstance.   In Humphries v. C.B. Richard Ellis, Inc., B & C Mortgage, 10th Dist. N. 05AP-483, 2005-
Ohio-6105, the Tenth District Court of Appeals found prior notice of an open and obvious hazard did not
constitute an attendant circumstance.   See, also, Blain v. Cigna Corp., 10th Dist. No. 02AP-1442, 2003-
Ohio-4022, but see Turner v. Burkons, 8th Dist. No. 61406, 1992 WL 354841.   We find Humphries and
Blain persuasive on the issue of whether notice of an open and obvious defect constitutes an attendant
circumstance.   Whether the Siferds were on notice of the ledge does not detract from the open and obvious
nature of the ledge, nor does it increase the ledge’s danger.    Consequently, we would find that the Siferds’
notice of the ledge would not constitute an attendant circumstance.
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that she “ha[d] never seen anything like it in my entire life.” She
testified that as she approached the closed door of the Club, the
threshold was  “flush” was  (sic) the door and appeared to be
“part  of  the  door.”  Pictures  submitted  by  the  Heckmans
demonstrate  that  both  the  door  and  the  threshold  are  dark
brown and the threshold is approximately  1-1/8″ high. There
was no artificial lighting in the vestibule immediately beyond the
door and the lighting in the vestibule was dim.
Heckman, 2007-Ohio-5330, at ¶3.
{¶24} Based on these facts the trial court granted summary judgment in
favor of the club finding that the raised threshold was an open and obvious hazard.
On appeal, the court of appeals reversed the trial court’s judgment.   In reversing,
the court of appeals listed several circumstances, which it found to create an issue
of  material fact as to whether  the  raised threshold was an open and obvious
hazard.   The court of appeals cited Mrs. Heckman’s testimony that she had never
seen anything like the threshold prior to encountering it; that the evidence revealed
that Mrs. Heckman could not have observed the height deviation because the door
was closed as Mrs. Heckman approached it; that the threshold was flush with the
door and the same color as the door; that the lighting in the vestibule was dim;
and, that Mrs. Heckman’s attention was drawn to the wedding party.   Heckman,
2007-Ohio-5330, at ¶12.   Many of the facts relied upon by the court of appeals to
reverse  the  trial  court’s  grant  of  summary  judgment  do  not  exist  in,  or  are
distinguishable from, the present case, i.e., the accident occurred in a building, a
door covered the raised threshold preventing Mrs. Heckman from seeing it, and
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the lighting was dim.   Based on these differences we find Heckman to be readily
distinguishable from the present case.
{¶25} We find the factual scenario in Dobranchin v. City of Canfield, 7th
Dist. No. 07 MA 119, 2008-Ohio-4968, to be more akin to the facts of the present
case.   In Dobranchin, Mrs. Dobranchin brought suit against the Balciars and other
defendants as a result of a trip and fall accident, which took place on a section of
sidewalk  located  on  the  Balciar’s  property.    Mrs.  Dobranchin  was  visiting  a
neighborhood garage sale on a sunny day.   Several garage sales were taking place
along the street, including one at the Balciar’s residence.   Mrs. Dobranchin was
walking  on  a  section  of  sidewalk  located  on  the  Balciar’s  property,  with  her
attention focused on the garage sales and not the sidewalk.   As Mrs. Dobranchin
continued down the sidewalk she tripped on a water shutoff valve located in the
sidewalk.4   Mrs. Dobranchin admitted that had she focused her attention on the
sidewalk she would have seen the valve.    Based on these facts, the trial court
granted the Balciars summary judgment and the court of appeals affirmed, finding
that the valve was an open and obvious hazard, and that her failure to look where
she was walking did not obviate the open and obvious nature of the valve.   Id. at
¶33.
4 Although the record in Dobranchin apparently was devoid of the exact difference in height between the
valve and the sidewalk, it was presumed that the difference in height between the valve and sidewalk was
less than two inches.
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{¶26} Like Mrs. Dobranchin, Bethel chose to focus her attention on the
Siferds’ garage sale, rather than the sidewalk, a choice she admitted was not wise.
See Bethel’s Depo. Tr., pp. 53-54.   There is a paramount duty upon a pedestrian to
look where he or she is walking.   See Backus v. Giant Eagle, Inc. (1996), 115
Ohio App.3d  155,  158; Lydic v. Lowe’s Cos., Inc.,  10th Dist. No.  01AP-1432,
2002-Ohio-5001, citing Raflo v. Losantiville Country Club (1973), 34 Ohio St.2d
1.   If the pedestrian exercises the option to focus his or her attention on a garage
sale  rather  than  on  the  surface  upon  which  he  or  she  is  traveling,  then  the
pedestrian abandons the duty to look.   See Backus, 115 Ohio App.3d at 158.   Here,
Bethel simply abandoned her duty to look.   There was nothing unusual about the
garage sale that would have commanded the attention of an ordinary pedestrian,
and  thus  possibly constitute  an  attendant  circumstance.    See  Stewart v.  AMF
Bowling Ctrs., Inc., 3d Dist. No. 5-10-16, 2010-Ohio-5671, ¶15, citing McGuire,
118 Ohio App.3d at 498.    By all accounts the Siferds were operating a standard
garage sale.   Nevertheless, Bethel chose to focus her attention on the garage sale to
determine  whether  she  wanted  to  patronize  the  sale.     Bethel’s  choice  was
completely volitional and not beyond her control.    Consequently, we find that
Bethel’s choice to focus her attention on the garage sale rather than the sidewalk
does not constitute an attendant circumstance.
{¶27} Similarly, the fact that Bethel had never traversed the sidewalk prior
to her accident does not constitute an attendant circumstance.   Ledges, cracks, and
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lips in sidewalks and other paved surfaces are common hazards faced by millions
of pedestrians each day.   For this reason, pedestrians have a duty to look where
they are walking.   Backus, supra; Lydic, supra.   This duty is only heightened where
a pedestrian traverses a location, such as a sidewalk, which is unfamiliar to him or
her.   Here, Bethel, knowing that she had never walked down the sidewalk on the
Siferds’ property, chose to focus her attention on the garage sale rather than on the
unfamiliar sidewalk that lay ahead.   Comparatively, Victoria, who we can only
assume had never walked down the same sidewalk, apparently focused on the
sidewalk, because she caught sight of the ledge immediately preceding Bethel’s
accident.   Had Bethel exercised the same care as Victoria she too, despite her
unfamiliarity with the sidewalk, would have in all likelihood avoided the ledge.
See Lydic, 2002-Ohio-5001, at ¶10 (found no duty to exist where plaintiff could
have seen the condition if he or she had looked).   Consequently, we find that
Bethel’s  unfamiliarity  with  the  sidewalk  does  not  constitute  an  attendant
circumstance.
{¶28} Additionally,  Bethel  contends  that  foot  traffic  on  the  sidewalk
constituted  an  attendant  circumstance.     The  record,  however,  contains  no
testimony that foot traffic on the sidewalk at the time of Bethel’s accident was
unusual, heavy, distracting, or a reason not to pay attention to where she was
walking.    The  only  activity  on  the  sidewalk  during  Bethel’s  accident  was  a
bicyclist who was approaching Bethel on the sidewalk from the opposite direction.
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However, this cannot be considered an attendant circumstance based on Bethel’s
own admission that she was not distracted by nor did she adjust her course as a
result of the oncoming bicyclist.   Consequently, there is no factual support that
foot traffic on the sidewalk constituted an attendant circumstance.
{¶29} When viewing the allegedly attendant circumstances together, we
find that their combined effect would not distract an individual from exercising the
degree  of  care  an  ordinary  person  would  have  exercised  to  avoid  the  ledge.
Accordingly, when construing the facts in favor of Bethel, we find that reasonable
minds could only conclude that the ledge was an open and obvious hazard, and
that there were no attendant circumstances which lessened the open and obvious
nature of the ledge.
{¶30} Finally, Bethel argues that the trial court erred in granting summary
judgment when it found that a genuine issue of material fact existed as to whether
the allegedly attendant circumstances rebutted the presumption of the “two inch
rule.” Specifically, Bethel argues that the trial court failed to acknowledge those
same attendant circumstances when it addressed whether the ledge was an open
and obvious hazard.   Having found that there were no attendant circumstances
surrounding Bethel’s trip and fall and that the defect was open and obvious, we
disagree.   Furthermore, any application of the two-inch-rule is rendered moot by
our findings pertaining to the open and obvious doctrine.
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{¶31} Although both the two-inch-rule and open and obvious doctrine can
relieve a landowner of a duty to warn of certain potential hazards, they are not the
same.   See Gates v. Speedway Superamerica, L.L.C., 8th Dist. No. 90563, 2008-
Ohio-5131, fn.  5, citing Henry v. Marriott Hotel Services, Inc.,  2nd Dist. No.
19653,  2003-Ohio-4840; Cramer v. McCray,  2nd Dist. No.  20791,  2005-Ohio-
5507, ¶8.   Accordingly, application of each involves a separate determination as to
whether there are genuine issues of material fact which preclude the granting of
summary  judgment  on  the  basis  of  either  the  two-inch-rule  or  the  open  and
obvious doctrine.   Where there are no issues of material fact with regard to the
applicability of the open and obvious doctrine but issues of material fact with
regard to the two-inch-rule, or vice versa, there is no need to consider the other.
Consequently, the trial court’s granting of summary judgment based on the open
and  obvious  doctrine  and  our  affirmance  thereof,  albeit  through  a  separate
analysis,5 renders any consideration of the two-inch-rule moot.
{¶32} Accordingly, we overrule Bethel’s sole assignment of error.
{¶33} Having found no error prejudicial to Bethel herein, in the particulars
assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and WILLAMOWSKI, J.J., concur.
5 Although our legal analysis differs from that of the trial court, “a reviewing court will not reverse an
otherwise correct judgment merely because the lower court utilized different or erroneous reasons as the
basis for its determination.”   Diamond Wine & Spirits, Inc., 2002-Ohio-3932, at ¶25.
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