{¶ 2} On September 30, 2002, Appellant, a 79 year оld woman, was walking with an exercise class from the Barberton Senior Center in Barberton, Ohio when she tripped and fell due to a 3 ¾ inch height difference between connecting pieces of sidewalk. On August 25, 2003, Appellant filed the instant case against the City of Barberton alleging that the city failed to keep their sidewalks in good repair and thus was negligent and had created a nuisance. The City of Barberton filеd a motion for summary judgment on June 16, 2004, arguing that the condition of the sidewalk was open and obvious, and consequently they owed Appellant no duty. On August 11, 2004, the trial court granted summary judgment in favor of the City of Barberton, holding that the condition of the sidewalk was open and obvious and the City owed no duty to Appellant.
{¶ 3} Appellant appealed, raising one assignment of error for our review.
{¶ 4} In her sole assignment of error, Appellant maintains that the trial court incorrectly granted summary judgment in favor of the City of Barberton. Appellant claims that the open and obvious doctrine does not eliminate the duty the City of Barberton owed to her, there were attendant circumstances, and the City of Barberton had actual notice of the cоndition. We disagree.
{¶ 5} Appellate courts consider an appeal from summary judgment under a de novo standard of review. Grafton v. Ohio Edison Co. (1996),
{¶ 6} Summary judgment is proper under Civ.R. 56 when: (1) no genuine issue as to any material fact exists, (2) the party moving for summary judgment is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the non-moving party, reasonable minds can only reach one conclusion, and that conclusion is adverse to the non-moving party. Temple v. Wean United, Inc. (1977),
{¶ 7} To prevail on a motion for summary judgment, the moving party must be able to point to evidentiary materials that show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Dresher v. Burt (1996),
{¶ 8} In this case, the City of Barberton argued that summary judgment was proper since the condition of the sidewalk, a 3¾ height difference, was an open and obvious danger and thus no duty was owed to Appellant. The trial cоurt agreed with the City of Barberton. Appellant now claims that "[t]he open and obvious doctrine does not eliminate a statutorily created duty[,]" and therefore, summary judgment on the matter was improper.
{¶ 9} The open and obvious doctrine provides that the owner of a premises owes no duty to those people entering the premises regarding dangers that are open and obvious. Armstrong v. Best Buy Co., Inc.
(1999),
{¶ 10} R.C.
"the legislative authority of a municipal corporation shall have the care, supervision, and control of the public * * * sidewalks * * * within the municipal corporation. The liability or immunity from liability of a municipal corporation for injury, death, or loss to person or property allegedly caused by a failure to perform the responsibilities imposed by this section shall be determined pursuant to divisions (A) and (B)(3) of section
{¶ 11} R.C.
{¶ 12} We agree with Appellant that under certain circumstances, the City of Barberton has a duty to keep the sidewalks in repair and that it can be subject to liability for failing to do so. However, the City is not strictly liable for any injuries that occur as a result of a sidewalk in disrepair. R.C.
{¶ 13} In her appellate brief, Aрpellant does not specifically argue that the condition of the sidewalk was not open and obvious; she alleges that the doctrine does not relieve the City of its duty to her. As discussed above, thе open and obvious doctrine is available to the City of Barberton and it provides that no duty is owed to people regarding the open and obvious danger the sidewalk presented.
{¶ 14} "A basic premise in cases involving sidewalk defects is that municipalities * * * are not insurers of pedestrian safety." Zampelli v.Albrecht Grocery (Dec. 9, 1981), 9th Dist. No. 11229, at 5. We find that the hazardous nature of the sidewalk was apparent. In fact, Appellant testified that none of the other seventeen people she was walking with tripped or fell on the sidewalk, which indicates that they all noticed and avoided the condition. Therefore, Appellant was responsible for taking appropriate measures to protect herself.
{¶ 15} This court has previously held that "[w]here the hazard is not hidden from view or concealed and is discoverable by оrdinary inspection, the court may properly sustain a summary judgment against the claimant." (Citations omitted.) Pozniak v. Recknagel, 9th Dist. No. 03CA008320,
{¶ 16} Appellant next argues that even if the sidewalk presented an open and obvious danger, she can still recover because attendant circumstances existed which caused her not to notice the condition of the sidewalk. While there is no precise definition of attendant circumstances, they would include "any distraction that would come to the attention of a pedestrian in the same circumstances and reduce the degree of care an ordinary person would exercise at the time." McLain v.Equitable Life Assurance Co. of the United States (Mar. 13, 1996), 1st Dist. No. C-950048, quoting France v. Parliament Park Townhomes (Apr. 27, 1994), 2nd Dist. No. 14264. `"The attendant circumstances must, taken together, divert the attention of the pedestrian, significаntly enhance the danger of the defect, and contribute to the fall. * * * Both circumstances contributing to and those reducing the risk of the defect must be considered.'" McGuire v. Sears, Roebuck Co. (1996),
{¶ 17} Appellant has not submitted any evidence supporting her assertion that attendant circumstances were present. In her deposition, Appellant did not testify that the presence of others distracted her. She testified that she was not tаlking with anyone while she was walking. She did not state that she was distracted by the other walkers. In fact, she did not mention any reason why she did not notice the condition of the sidewalk. The trial court noted that it was clеar and dry on the date of the accident and that it was daylight. Appellant likewise testified that it was clear on the day she fell. We find no evidence of any attendant circumstances which enhanced the danger to Appellant and contributed to her fall.
{¶ 18} In her final argument, Appellant maintains that the City of Barberton had both actual and constructive notice of the condition of the sidewalk. We find thаt the issue of notice is inapplicable to this case. Appellant cites to Beebe v. Toledo (1958),
{¶ 19} In conclusion, we hold that the City of Barberton did not owe a duty to the Appellant regarding the condition of the sidewalk. Appellant tripрed over an open and obvious condition and has not shown the presence of any attendant circumstances which caused her to fall. Since the City of Barberton cannot be liable to Aрpellant without a duty, its actual or constructive knowledge of the condition is irrelevant. Appellant's assignment of error is not well taken.
{¶ 20} We overrule Appellant's assignment of error and affirm the judgment оf the Summit County Court of Common Pleas.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, Stаte of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal еntry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
Exceptions.
Whitmore, J. Moore, J. concur.