[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, O P I N I O N 

 

 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 

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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. 
Case No. 4-12-20 

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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. 
Case No. 4-12-20 

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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-
Case No. 4-12-20 

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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 
Case No. 4-12-20 

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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. 
Case No. 4-12-20 

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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. 
Case No. 4-12-20 

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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. 
Case No. 4-12-20 

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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 preplanned 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. 
Case No. 4-12-20 

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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 
Case No. 4-12-20 

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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 nonmoving 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. 
Case No. 4-12-20 

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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. 

/jlr