Waldron v. Edinger , 2022 Ohio 4296 ( 2022 )

[Cite as Waldron v. Edinger, 2022-Ohio-4296.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Patricia A. Waldron, :
Plaintiff-Appellant, : No. 22AP-195
(C.P.C. No. 20CV-8233)
v. :
(ACCELERATED CALENDAR)
Kevin Edinger, :
Defendant-Appellee. :
D E C I S I O N
Rendered on December 1, 2022
On brief: Kisling, Nestico, & Redick, and Douglas J. Blue for
appellant. Argued: Douglas J. Blue.
On brief: Curry Roby, LLC, and Trent M. Thacker for
appellee. Argued: Trent M. Thacker.
APPEAL from the Franklin County Court of Common Pleas
JAMISON, J.
{¶ 1} Plaintiff-appellant, Patricia A. Waldron, appeals from a judgment of the
Franklin County Court of Common Pleas, in favor of defendant-appellee, Kevin Edinger.
For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant leased a plot of land from appellee for $100 per month, and she
moved a trailer home onto the premises she had leased from a third-party. The plot is
located at 5838 Meadowbrook Road in Albany, Ohio.1 Appellee and his parents live across
the street at 5792 Meadowbrook Road. Appellee acknowledges he told appellant to use this
1Though the real property is located in Athens County, appellant filed her complaint in Franklin County
pursuant to Civ.R. 3(C). Appellee did not move the trial court for a change of venue.
No. 22AP-195 2
address for purposes of mail delivery. The mailbox for 5792 Meadowbrook Road is in the
front of the residence.
{¶ 3} On September 14, 2017, appellant was informed that a package addressed to
her had been left at the back entrance to 5792 Meadowbrook Road. According to appellant,
she crossed the street and traversed the concrete walkway that lead to the back of the home.
Appellant experienced no difficulties as she traversed the concrete walkway, reached the
ramp at the end of the walkway and approached the back entrance. Appellant received the
small package from one of appellee's parents and headed back down the ramp. Appellant
admitted she was not looking down as she left the ramp and stepped onto the walkway.
Appellant tripped and fell when her foot caught on the lip of a concrete slab that was greater
in height than the adjoining concrete slab. Appellant sustained serious injuries to her right
shoulder and arm as a result of the fall.
{¶ 4} On December 22, 2020, appellant filed her complaint against appellee
alleging negligence per se based on alleged violations of the Landlord-Tenant Act, and
common law negligence. Appellee moved the trial court for summary judgment on the
issue of liability. In support of the motion, appellee submitted his own deposition and the
affidavit of Linda Cisler, an insurance adjuster for appellee's insurer. Appellant also
submitted several photographs of the sidewalk and surrounding area taken by Cisler
approximately two weeks after appellant's fall. Appellant submitted her own depositions
in opposition to the motion for summary judgment along with two photographs of the
sidewalk she had taken approximately one year after the fall.
{¶ 5} The trial court granted summary judgment for appellee upon finding the
alleged defect in the walkway insubstantial, as a matter of law, because there was no
evidence the deviation in height between the concrete slabs was two inches or more. The
trial court relied on a photograph taken by Cisler which purports to show that the deviation
in height between the two slabs over which appellant tripped and fell was only one and one-
half inches. The trial court also relied on a photograph submitted by appellant, also
showing a deviation of just one and one-half inches.
{¶ 6} Appellant timely appealed to this court from the March 23, 2022 judgment.
II. ASSIGNMENT OF ERROR
{¶ 7} Appellant assigns the following as trial court error:
No. 22AP-195 3
[1.] THE TRIAL COURT ERRED TO THE PREJUDICE OF
THE PLAINTIFF-APPELLANT WHEN IT GRANTED
DEFENDANT-APPELLEE'S MOTION FOR SUMMARY
JUDGMENT.
III. STANDARD OF REVIEW
{¶ 8} "Summary judgment under Civ.R. 56(C) may be granted only when there
remains no genuine issue of material fact, the moving party is entitled to judgment as a
matter of law, and reasonable minds can come to but one conclusion, that conclusion being
adverse to the party opposing the motion." Nalluri v. Jones, 10th Dist. No. 19AP-779, 2020-
Ohio-4280, ¶ 13, citing Tokles & Son, Inc. v. Midwestern Indemn. Co., 65 Ohio St.3d 621,
629 (1992), citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64 (1978). "The
moving party cannot discharge its burden under Civ.R. 56 simply by making conclusory
allegations that the nonmoving party has no evidence to prove its case." Bremar v. Ohio
Univ., 10th Dist. No. 20AP-513, 2022-Ohio-1382, ¶ 13, citing Nalluri at ¶ 13, citing Dresher
v. Burt, 75 Ohio St.3d 280, 293 (1996). "Rather, the moving party must point to some
evidence that affirmatively demonstrates the nonmoving party has no evidence to support
each element of the stated claims." Bremar at ¶ 13, quoting Nalluri at ¶ 13. " '[I]f the moving
party has satisfied its initial burden, the nonmoving party then has a reciprocal burden
outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for
trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall
be entered against the nonmoving party.' " Nalluri at ¶ 13, quoting Dresher at 293.
{¶ 9} Appellate review of summary judgment is de novo. Blank v. Bluemile, Inc.,
10th Dist. No. 20AP-200, 2021-Ohio-2002, ¶ 15, citing Hill v. Ohio Dept. of Rehab. & Corr.,
10th Dist. No. 20AP-88, 2021-Ohio-561, ¶ 14, citing Hudson v. Petrosurance, Inc., 127 Ohio
St.3d 54, 2010-Ohio-4505, ¶ 29. " 'Thus, we conduct an independent review of the record
and stand in the shoes of the trial court.' " Hill at ¶ 14, quoting Nalluri at ¶ 14, citing Abrams
v. Worthington, 169 Ohio App.3d 94, 2006-Ohio-5516, ¶ 11 (10th Dist.). "Our review
permits no deference to the trial court's determination." Bremar at ¶ 14, citing Zurz v. 770
W. Broad AGA, LLC, 192 Ohio App.3d 521, 2011-Ohio-832, ¶ 5 (10th Dist.), citing White v.
Westfall, 183 Ohio App.3d 807, 2009-Ohio-4490, ¶ 6 (10th Dist.). " 'We must affirm the
trial court's judgment if any grounds the movant raised in the trial court support it.' "
Columbus Steel Castings Co. v. Transp. & Transit Assoc., LLC, 10th Dist. No. 12AP-970,
No. 22AP-195 4
2014-Ohio-272, ¶ 28, quoting Cashlink, LLC v. Mosin, Inc., 10th Dist. No. 12AP-395, 2012-
Ohio-5906, ¶ 14.
IV. LEGAL ANALYSIS
A. Assignment of Error
{¶ 10} In appellant's sole assignment of error, appellant contends the trial court
erred in granting summary judgment for appellee. We disagree.
1. Common Law Negligence
{¶ 11} "In an action for negligence, a plaintiff must prove: (1) the defendant owed
plaintiff a duty of care; (2) the defendant breached that duty of care; and (3) as a direct and
proximate result of the defendant's breach, the plaintiff suffered injury." Simms v. Penn
Natl. Gaming, Inc., 10th Dist. No. 21AP-185, 2022-Ohio-388, ¶ 19, citing Menifee v. Ohio
Welding Prods., Inc., 15 Ohio St.3d 75, 77 (1984); Blain v. Cigna Corp., 10th Dist. No.
02AP-1442, 2003-Ohio-4022, ¶ 7 .
{¶ 12} "In a premises liability case, the relationship between the owner or occupier
of the premises and the injured party determines the duty owed." Simms at ¶ 20, citing
Byrd v. Arbors E. Subacute & Rehab. Ctr., 10th Dist. No. 14AP-232, 2014-Ohio-3935, ¶ 8,
citing Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315 (1996).
Ohio adheres to the common-law classifications of invitee, licensee, and trespasser.
Carpenter v. Mt. Vernon Gateway, Ltd., 5th Dist. No. 13CA6, 2014-Ohio-465, ¶ 19, citing
Shump v. First Continental-Robinwood Assoc., 71 Ohio St.3d 414, 417 (1994).
{¶ 13} 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 at ¶ 20, citing Broka v. Cornell's IGA Foodliner, Inc., 5th Dist. No.
12CA100, 2013-Ohio-2506, ¶ 20, citing Gladon at 315. The owner or occupier of the
premises owes its invitees a duty to exercise ordinary care to maintain the premises in a
reasonably safe condition, such that its invitees will not unreasonably or unnecessarily be
exposed to danger. Byrd at ¶ 9, citing Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d
203 (1985). However, a premises owner is not an insurer of its invitees' safety against all
forms of accident that may occur on its premises. Id. "No presumption or inference of
negligence arises from the mere occurrence of an accident or from the mere fact that an
injury occurred." Byrd at ¶ 9, citing Barker v. Wal-Mart Stores, Inc., 10th Dist. No. 01AP-
No. 22AP-195 5
658 (Dec. 31, 2001). "Rather, 'there must be direct proof of a fact from which the inference
can reasonably be drawn.' " (Internal citation and quotation omitted.) Byrd at ¶ 9.
{¶ 14} "The law regarding defects in sidewalks and related issues arising therefrom
is well-established." Jenkins v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 12AP-787,
2013-Ohio-5106, ¶ 9. As a general rule, landowners are not liable for minor defects in
sidewalks and other walkways because these are commonly encountered and pedestrians
should expect such variations in the walkways. Id., citing Backus v. Giant Eagle, Inc., 115
Ohio App.3d 155, 157 (7th Dist.1996). A pedestrian has a duty to look for and avoid known
and obvious cracks in the walkway surface. Id.{¶ 15} In Kimball v. Cincinnati, 160 Ohio St. 370 (1953), the Supreme Court of Ohio
adopted what is commonly referred to as the "two-inch rule," which provides that a
difference in elevation in a sidewalk or walkway, which is less than two inches, is
insubstantial, as a matter of law, and will not support a negligence claim. Harrigill v.
Thompson Concrete, Ltd., 10th Dist. No. 17AP-451, 2017-Ohio-9201, ¶ 11. Accordingly,
under Ohio law there is a rebuttable presumption that a defect of less than two inches in
height is insubstantial as a matter of law and does not give rise to liability. Id. See also
Cash v. Cincinnati, 66 Ohio St.2d 319 (1981). Where plaintiff fails to produce evidence to
rebut the presumption, summary judgment may be granted in favor of defendant.
Humphries v. C.B. Richard Ellis, Inc., 10th Dist. No. 05AP-483, 2005-Ohio-6105, ¶ 18.
{¶ 16} There does not appear to be any dispute in this case that appellant was an
invitee on appellee's premises at the time she sustained her injuries. When appellee was
asked at his deposition if appellant was trespassing at the time of her fall appellee
responded: "No, she was just getting her mail." (Feb. 4, 2020 Def.'s Dep. Tr. at 58.)
{¶ 17} Thus, the primary issue for the trial court was whether appellant presented
evidence that would permit a reasonable trier of fact to conclude that the deviation in height
between the two concrete slabs in the walkway was two inches or more.
{¶ 18} In granting summary judgment for appellee, the trial court found as follows:
Upon review, the Court finds that Defendant has
demonstrated that the defect in the sidewalk is two inches or
less. Plaintiff cannot successfully oppose this evidence with
one photograph taken a year later that shows a defect of less
than two inches. Plaintiff's speculation that the elevation
No. 22AP-195 6
increases to over two inches likewise cannot create a genuine
issue of material fact.
(Mar. 23, 2022, Decision & Entry at 5.)
{¶ 19} Appellant testified that the concrete slab over which she tripped and fell was
positioned at such an angle relative to the abutting slab that the deviation in height between
the two slabs was greater in the area where she tripped and fell. The photographs submitted
to the trial court corroborate appellant's claim. Appellee acknowledged that the deviation
in height between the two slabs of concrete where appellant fell is greater at the left edge
than the right.
{¶ 20} Appellant visited the site a year after the fall to measure the change in
elevation, and she submitted a photograph showing a one and a half inch deviation in height
between the two slabs. At her November 2, 2019 deposition, appellant was asked about
Exhibit F, one of the photographs of the walkway taken by Cisler on September 29, 2017.
Using Exhibit F, appellant drew a circle on the spot where she made the measurement
showing a deviation in height of a little more than an inch and a half. She drew that circle
slightly left of the center of the slab, over a vertical crack in the concrete. She also drew a
circle around the left edge of the concrete slab marking the place where she caught her toe
and fell.2
{¶ 21} One of the photographs taken by Cisler two weeks after appellant's fall
indicates a deviation of less than one inch near the right edge of the concrete slab over which
appellant fell. (Sept. 27, 2021 Aff. of Linda Cisler, Ex. B-9, at 11.) Another photograph taken
by Cisler on the same day shows a deviation of almost one and three-fourths inches very
near the left edge of the same concrete slab. (Aff. of Linda Cisler, Ex. B-8, at 10.) The
photograph marked as Exhibit B-8 also shows that some vegetation is growing between the
two concrete slabs at the very left edge. A comparison of the spot where appellant fell as
shown on Exhibit F and the position of the one and three-fourths inch measurement shown
in Exhibit B-8, reveals that the deviation between the height of the two slabs in the spot
where appellant fell is less than two inches.3
2 Exhibit F is one of the photographs attached to Cisler's affidavit and marked as Exhibit B-5.
3 Exhibit F and Exhibit B-11 attached to Cisler's affidavit appear to be the same photograph, except that Exhibit
F has the marking placed by appellant at her deposition.
No. 22AP-195 7
{¶ 22} Based on the measurements shown in the photographs taken by Cisler and
appellant, the only reasonable conclusion to reach is that the deviation in height between
the two slabs is less than two inches. Thus, we agree with the trial court that under the two
inch rule the defect in the walkway was insubstantial, as a matter of law.
{¶ 23} In her November 2, 2019 deposition, however, appellant provided the
following testimony about the orientation of the two slabs, the extent of the deviation in
height, and her ability to observe the deviation:
A. It is to the left where the higher rise was that I couldn't see.
Q. Okay. And that's the area where it was overgrown where
you circled on Exhibit F, correct?
A. Yes.
Q. Is that the part where you fell?
A. Yes. This is where my foot got stuck, my shoe got stuck in
that.
Q. So that same spot?
A. Yes.
Q. Have you ever measured that spot? Do you know how tall
the change in elevation is?
A. I can tell you from this point here, it was like 1 1/2. And it
just goes up.
Q. So that was -- you drew another circle to the right of that,
correct?
A. Yes.
Q. You said that's about 1 1/2?
A. Yes. Or a little over 1 1/2. So this would have been -- at the
time that I was measuring, it was overgrown, so it would have
been over 2 inches easy.
Q. You measured it and it was over 2 inches?
A. So ...
Q. When did you measure it?
A. It was a year later.
(Nov. 12, 2019 Pl's Dep. Tr. at 33-34.)
{¶ 24} Appellant claims that her estimate of the deviation in height between the two
slabs is sufficient to rebut the presumption of non-liability under the two inch rule even
No. 22AP-195 8
though the photographic evidence shows a defect of less than two inches in height. The
trial court essentially found appellant's testimony inadmissible as it afforded no evidentiary
weight to appellant's "speculation." (Decision & Entry at 5.) In our view, appellant's
estimate arguably qualifies as admissible lay opinion under Evid.R. 701, as her estimate of
the deviation in height between the two concrete slabs was rationally based on her own
perceptions and it would be helpful to the court in determining one of the material issues
in the case. See Evid.R. 701; Stockdale v. Baba, 153 Ohio App.3d 712, 2003-Ohio-4366,
¶ 83 (10th Dist.). Nevertheless, we agree that appellant's testimony was inadmissible, but
for a slightly different reason.
{¶ 25} "Under the physical-facts rule, 'neither a court nor jury can give probative
value to any testimony positively contradicted by the physical facts.' " Bradley v. Ohio DOT,
10th Dist. No. 13AP-918, 2014-Ohio-3205, ¶ 24, quoting Ellinger v. Ho, 10th Dist. No.
08AP-1079, 2010-Ohio-553, ¶ 75, citing McDonald v. Ford Motor Co., 42 Ohio St.2d 8, 12
(1975). "[I]n certain cases, summary judgment can be granted based on the 'physical-facts
rule.' " Maret v. CSX Transp., 130 Ohio App.3d 816, 823 (1st Dist.1998), citing McDonald
at ¶ 12. "Such physical evidence might include a properly authenticated photograph." Id.,citing Hirschberg v. Albright, 1st Dist. No. C-73480 (Apr. 1, 1974).
{¶ 26} Here, appellant's testimony that the deviation between the two concrete slabs
was "over 2 inches easy" is positively and unequivocally contradicted by the properly
authenticated photographs taken two weeks after appellant's fall. (Pl.'s Dep. Tr. at 34.)
(Aff. of Linda Cisler, Ex. B-8, B-11, at 10, 13.) In other words, appellant's estimate of the
deviation between the two concrete slabs is in conflict with the established physical facts in
the case. Accordingly, we agree with the trial court's decision to disregard appellant's
estimate, albeit for slightly different reasons than the trial court.
{¶ 27} Even though the evidence in the record shows that the deviation in height
between the two concrete slabs was less than two inches, the presumption of non-liability
created by the two inch rule may be rebutted by showing attendant circumstances sufficient
to render the defect substantial. Blain at ¶ 9. In Blain, this court noted "[t]he term
attendant circumstances defies precise definition." Id. at ¶ 11, citing Stockhauser v.
Archdiocese of Cincinnati, 97 Ohio App.3d 29, 32-33 (2d Dist.1994). With regard to
sidewalk defects, attendant circumstances may include "any distraction that would come to
No. 22AP-195 9
the attention of a pedestrian in the same circumstances and reduce the degree of care an
ordinary person would exercise at the time," including "the condition of the sidewalk as a
whole, its pedestrian traffic volume, visibility of the defect, and whether the accident site
was such that one's attention could easily be diverted." (Emphasis added.) (Internal
citations and quotations omitted.) Blain at ¶ 11. See also Dubenion v. DDR Corp., 10th
Dist. No. 15AP-915, 2016-Ohio-8128, ¶ 15.
{¶ 28} In granting summary judgment for appellee, the trial court reached the
following conclusion regarding attendant circumstances:
[T]he Court finds that there were no attendant circumstances
that would preclude the application of the two-inch rule.
Plaintiff does not argue that any attendant circumstances
apply. She did argue that the open and obvious doctrine did
not apply because of vegetation covering the sidewalk and the
concrete was the same color on and around the defect.
However, Plaintiff testified that she was not looking down
while she was walking, such that any vegetation or coloring of
the concrete would not have contributed to her fall.
(Decision & Entry at 5.)
{¶ 29} An obstruction preventing a pedestrian from observing a defect in a sidewalk
qualifies as an attendant circumstance for purposes of the exception to the two inch rule.
See Blain; Dubenion. The trial court acknowledged appellant made this argument in
opposition to appellee's motion for summary judgment. Under the attendant
circumstances exception, a defect that would otherwise be insubstantial by operation of the
two inch rule, may be deemed substantial if the defect is hidden from view. Under such
circumstances, plaintiff's failure to look down would be irrelevant to the analysis.
{¶ 30} As previously noted, appellant submitted a photograph showing vegetation
growing between the two slabs near the left edge where she claims to have fallen. (Aug. 5,
2021 Pl.'s Dep. Tr. at 15.) The photograph depicts a slightly thicker growth of vegetation
between the two concrete slabs than photographs taken by Cisler two weeks after
appellant's fall. Appellee testified that the condition of the sidewalk on the date appellant
fell is accurately depicted in Exhibit 3.4 Exhibit 3 depicts a small amount of vegetation
growing at the very left edge of the concrete slab, but less than is depicted in Exhibit I.
4 Q. And would you agree with me that at the time of Patty's fall there was some vegetation growing in between
the two concrete slabs?
No. 22AP-195 10
{¶ 31} In her November 12, 2019 deposition, appellant made the following
observations about Exhibit F:
Q. This is marked Exhibit F. Is this the area where you fell.
A. This is the area where I fell.
Q. Okay.
A. And it was not this clean. I will tell you that.
Q. Okay. Well, what was on it?
A. It was overgrown here.
Q. What was?
A. Over in this area here.
Q. Where the crack was?
A. Yeah, over -- where the -- the biggest end where I tripped
was overgrown here.
Q. Okay. With what?
A. Whatever this stuff is.
Q. Some sort of foliage --
A. Yes, foliage.
Q. -- that's in the picture?
A. Um-hmm.
Q. Did you ever take any photographs around that time?
A. A year later. I didn't take it at that time, but I did a year
later. See, that's why I'm kind of just questioning this -- the
date of these pictures because I don't believe he ever kept it
that clean.
(Nov. 12, 2019 Pl.'s Dep. Tr. at 31-32.)
{¶ 32} Our review of the evidence shows that a portion of the concrete slab is
partially obscured by vegetation to the very left edge, but the deviation in height between
the concrete slabs are clearly visible to anyone using the walkway. Anyone exercising a
reasonable degree of caution when using the walkway would also perceive the slight
increase in the deviation from the right side of the slab to the left edge and avoid the danger.
In our view, it is not permissible to infer from any of the photographs, including Exhibit I,
A. As shown in Exhibit 3. (Feb. 4, 2020 Def.'s Dep. Tr. at 52.)
No. 22AP-195 11
that the existence and extent of the defect in the walkway would not have been visible to
appellant on September 14, 2017. Appellant has admitted that she was looking at her
package as she traversed the walkway, and not looking down when she caught her toe and
fell. Appellant has, therefore, presented no proof that the attendant circumstances
exception to the two inch rule applies in this case.
{¶ 33} In the final analysis, we find that appellant failed to produce admissible
evidence which, if believed, would permit a reasonable trier of fact to conclude that the
deviation in height between the two concrete slabs in the walkway was two inches or more.
Appellant has also failed to produce evidence to support a finding that attendant
circumstances prevented her from perceiving the defect and avoiding the danger.
Accordingly, we hold that the trial court did not err when it granted summary judgment in
favor of appellee on appellant's common law negligence claim. Appellant's assignment of
error is overruled as to her common law negligence claim.
2. Negligence Per Se
{¶ 34} Appellant argues that the concrete walkway over which she tripped and fell
rendered the leased "premises" uninhabitable for purposes of liability under
R.C. 5321.04(A)(2). Alternatively, appellant argues that the alleged defect in the concrete
sidewalk rendered a "common area" unsafe for purposes of liability under
R.C. 5321.04(A)(3).
{¶ 35} The Landlord-Tenant Act provides in pertinent part, as follows:
(A) A landlord who is a party to a rental agreement shall do all
of the following:
***
(2) Make all repairs and do whatever is reasonably necessary
to put and keep the premises in a fit and habitable condition;
(3) Keep all common areas of the premises in a safe and
sanitary condition.
R.C. 5321.04(A)(2) and (3).5
5By contrast, "[t]he 'open and obvious' doctrine does not dissolve the statutory duty to repair." Robinson v.
Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, ¶ 25, citing Schoefield v. Beulah Rd, Inc, 10th Dist. No. 98AP-
1475 (Aug. 26, 1999).
No. 22AP-195 12
{¶ 36} The Supreme Court has held violations of R.C. 5321.04(A)(2) and (A)(3)
constitute negligence per se. Mann v. Northgate Investors, L.L.C., 138 Ohio St.3d 175,
2014-Ohio-455, ¶ 32. Appellee contends that the provisions of the Landlord-Tenant Act do
not apply in this case because the walkway where appellant fell was not located on the
leased premises or in a common area for purposes of the Landlord-Tenant Act. We agree
with appellee.
{¶ 37} R.C. 5321.01(C) defines a "residential premises" as "a dwelling unit for
residential use and occupancy and the structure of which it is a part, the facilities and
appurtenances in it, and the grounds, areas, and facilities for the use of tenants generally
or the use of which is promised the tenant." The term common area is not defined in the
Landlord-Tenant Act. Ordinarily "common area" is a term defined in written lease
agreements. A common area is defined in the common law as "the realty that all tenants
may use though the landlord retains control over and responsibility for it." Black's Law
Dictionary, 332 (10th Ed.2014). For example, a parking lot used by lessees is a "common
area." Rawlings v. Springwood Apts. of Columbus, Ltd., 10th Dist. No. 18AP-359, 2018-
Ohio-4845, ¶ 40, quoting Lilly v. Bradford Invest. Co., 10th Dist. No. 06AP-1227, 2007-
Ohio-2791, ¶ 24.
{¶ 38} There was no written lease agreement in this case. Appellee testified that the
leased premises included the lot located at 5838 Meadowbrook Road in Albany, Ohio. The
parties agree that appellee orally instructed appellant to use 5792 Meadowbrook Road as
her address for purposes of mail service, and that she could pick up her mail at the mailbox
across the street at that address. There is no evidence that appellee told appellant that her
rights under the oral lease agreement included use of the walkway leading to the back yard
at 5792 Meadowbrook Road, for any purpose or at any time.
{¶ 39} Appellant testified about the arrangement as follows:
Q. Was there a mailbox there? Or tell me how that worked.
A. Okay. There was a mailbox, which is what the mail would
get put into. But if we had a package, they would put the
packages, a lot of times either by the corner of the house - -
the person delivering the package, if it didn't fit in the
mailbox, would put it by the corner of the home, or Kevin, his
dad, Chuck, would bring it to us. But the majority of the time,
Mike would go over to get it.
No. 22AP-195 13
(Nov. 12, 2019 Pl.'s Dep. Tr. at 18.)6
{¶ 40} At her August 5, 2021 deposition appellant testified as follows:
Q. That area of 5792 in the back was not specifically leased to
you, was it?
A. No. That was his father's. He set it up for us to pick up our
mail over there, which I couldn't understand why, but --
Q. I'm talking about the back of the house, that area, Patty.
A. Leased? No.
(Aug. 5, 2021 Pl.'s Dep. Tr. at 12.)
{¶ 41} Appellee conceded appellant was not trespassing on September 14, 2017, but
he insisted he never expected that anyone would use the walkway or the back yard, other
than himself or his parents. Appellant admitted she had never used the walkway prior to
her fall on September 14, 2017. Appellant had always picked up her mail at the mailbox by
the road in front of the residence at 5792 Meadowbrook Road, and her larger packages were
left at the front of the residence. On September 14, 2017, however, she observed a mail
carrier leaving the back of the residence and she was told that a package had been left for
her. She used the walkway leading to the back of the home, for the first time, in order to
retrieve the package.
{¶ 42} In Ryder v. McGlone's Rentals, 3d Dist. No. 3-09-02, 2009-Ohio-2820, the
tenant of a single family dwelling sued her landlord for negligence when she was injured in
a fall that occurred on a public sidewalk adjoining the leased premises. The trial court
granted summary judgment for the landlord upon finding the sidewalk was not located on
the leased premises or in a common area. The court of appeals affirmed the trial court upon
concluding that the "residential premises" as defined in R.C. 5321.04 did not include the
public sidewalk because a "tenant," as defined in R.C. 5321.01, is a person entitled to use
the premises "to the exclusion of others." (Emphasis deleted.) Id. at ¶ 21. The court of
appeals held that the trial court did not err in granting judgment to the landlord because
the there was no claim that tenant had the right to exclude others from using the sidewalk.
Id.
6 The evidence shows that Mike was also residing at 5838 Meadowbrook Road.
No. 22AP-195 14
{¶ 43} Here, appellant has testified that the back yard at 5792 Meadowbrook Road
was never part of the leased premises and there is no evidence that appellant had a right to
exclude others from using it. She never testified that she had the right to unfettered use of
the walkway leading to the back of the residence. Accordingly, on this record, the trial court
did not err when it determined that appellant failed to produce evidence to support a
finding that the walkway leading to the back of the home at 5792 Meadowbrook Road was
either on the leased premises or in a common area. Furthermore, appellant's argument
that the Landlord-Tenant Act applies to her case because 5792 Meadowbrook Road is her
"legal address," was not an argument appellant made in this trial court and has been waived
for purposes of appeal. (Appellant's Brief at 4.) U.S. Specialty Ins. Co. v. Hoffman, 10th
Dist. No. 19AP-189, 2020-Ohio-4114, ¶ 15.
{¶ 44} Finally, even if appellant had produced evidence to support a finding that the
walkway was on the leased premises or in a common area, we have determined that the trial
court did not err when it applied the two inch rule in concluding that the defect was
insubstantial, as a matter of law. Appellant has not cited, nor has this court discovered, any
Ohio case holding that the two inch rule does not apply to claims brought pursuant to the
Landlord-Tenant Act. See Dabe v. M.K. Hufford Co., 2d Dist. No. 2022-CA-11, 2022-Ohio-
2802, ¶ 60. The Dabe court concluded that even though a statutory violation means that a
landlord is negligent per se, the landowner has not violated the statute, as a matter of law,
if the defect is less than two inches and no attendant circumstances exist. Id.{¶ 45} Based on the foregoing, we hold that the trial court did not err when it granted
summary judgment for appellee on appellant's statutory claims.
V. CONCLUSION
{¶ 46} Having overruled appellant's sole assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
LUPER SCHUSTER, P.J., and SADLER, J., concur.
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