Published July 29, 2026 · By Terry W. Posey, Esq.

Most people assume that if they trip on a broken sidewalk and get seriously hurt, the property owner is responsible. In Ohio, that assumption is often wrong — and a decision released on July 21, 2026 shows exactly why.

In Gustafson v. Ohio State University, 2026-Ohio-2792, Ohio's Tenth District Court of Appeals affirmed the dismissal of an injury claim brought by a woman who fell on a university-owned sidewalk. She never got to a jury. The case was decided on a measurement.

What Happened

Deborah Gustafson and her husband Keith traveled from Iowa to Columbus in October 2022 to watch an Ohio State–Iowa football game. After the game, while walking back toward their parking garage on a sidewalk owned and maintained by the university, Deborah caught her foot on a raised "lip" where two sections of concrete met. She fell and was injured — her husband testified the fall broke her ankle.

They sued for negligence, negligence per se, and loss of consortium. The university asked the court to throw the case out before trial, and the court did. On appeal, the Tenth District agreed, and it rested its decision on a single point: the height difference in that sidewalk was less than two inches.

Ohio's "Two-Inch Rule," Explained

Ohio courts have long held that landowners are not liable for minor defects in sidewalks and walkways, because uneven pavement is something pedestrians ordinarily encounter and should expect. Out of that principle comes what Ohio lawyers call the two-inch rule, traceable to Ohio Supreme Court decisions including Kimball v. Cincinnati (1953) and Cash v. Cincinnati (1981).

The rule creates a rebuttable presumption: a height difference of less than two inches is treated as insubstantial as a matter of law and does not give rise to liability. "Rebuttable" is the important word. It is a starting presumption, not an automatic loss — but the injured person carries the burden of knocking it down.

Deborah estimated the lip at one and one-half inches during her deposition, and that estimate went unchallenged. That single number put her inside the presumption and shifted the entire case onto one question: were there "attendant circumstances" that made this minor defect a substantial one?

"Attendant Circumstances" — The Escape Hatch, and Why It Didn't Work Here

An attendant circumstance is a factor that contributes to a fall and is beyond the injured person's control. Ohio courts have recognized things like poor lighting, a large volume of pedestrian traffic, how visible the defect was, the overall condition of the walkway, and whether the setting is one where a person's attention would naturally be pulled away.

But the circumstance has to do three things at once. Per the court, it must divert the pedestrian's attention, significantly enhance the danger of the hazard, and actually contribute to the fall.

That is the heart of this decision. The crowd argument was not rejected because crowds never count. It was rejected because the record contained no evidence that the crowd actually diverted her attention or contributed to her fall — and her own sworn answers affirmatively said otherwise. Ohio courts also draw a line between "normal traffic" of people coming and going and something unusual enough to qualify.

"But the City Code Says They Have to Fix It"

The Gustafsons also argued negligence per se, pointing to Columbus ordinances requiring property owners to repair sidewalk offsets of a half inch or more. The court rejected that too, following its own precedent: an ordinance that simply requires abutting owners to maintain and repair sidewalks creates an obligation to help the city with maintenance — not a duty owed to individual pedestrians. A violation of that kind of ordinance, without more, does not create a private right to sue. The court added that even proof the owner had notice of the violation would not change that.

Finally, Keith's loss of consortium claim fell with the rest. In Ohio, loss of consortium is a derivative claim: if the injured spouse's underlying tort claim fails, the spouse's claim fails with it.

What This Means If You Were Hurt in a Fall

Understand first what this decision is not. It is not a rule that falls on sidewalks never produce a claim, and it does not apply to every fall case. The two-inch rule governs elevation differences in sidewalks and walkways — it has nothing to say about a fall caused by ice, a spill, a hole, a missing handrail, poor lighting alone, or a collapsed step. Ohio courts also stress that these cases are extremely fact-specific.

But it does mean a few concrete things:

Measure the defect, and do it immediately. In this case the plaintiff's own rough estimate — one and a half inches — became the fact that decided the case. Photograph the defect with a tape measure or a coin in the frame, from several angles, on the day it happens if you possibly can. Property owners repair these things, and once it's repaired the evidence is gone.

Document the conditions, not just the crack. Lighting, shadows, crowding, obstructions, whether the defect blended into the pavement, what you were walking toward — these are the facts that build an attendant-circumstances argument. Photos taken at the same time of day matter. So do witnesses.

Be careful and be accurate about what distracted you. You will eventually be asked, under oath or by an adjuster, whether anything distracted you and whether you could have seen the hazard. Never guess, never exaggerate, and never minimize. If a crowd genuinely pushed you along, if a low sun was in your eyes, if you were stepping aside for someone — that is real evidence, and it needs to be said accurately the first time. Casual answers given to be agreeable can end a case years later.

Get advice before you give a statement. Most people in this situation talk to an insurance adjuster or a risk manager long before they talk to a lawyer. That order is backwards, and this decision shows the cost.

Watch the deadlines, and watch who owns the property. Ohio generally allows two years to file a personal injury suit, and claims against public entities carry additional rules of their own — we covered some of those in Injured on Government Property in Ohio? A New Supreme Court Ruling Makes These Claims Harder. Whether the sidewalk belongs to a city, a university, a business, or a private landlord changes the analysis substantially.

Talk to a Dayton Injury Lawyer Before the Evidence Disappears

Premises cases are won and lost on details that vanish within days — the exact height of the defect, the light, the crowd, the photos nobody thought to take. If you have been hurt in a fall on someone else's property in the Dayton area, the earlier an attorney can get involved, the more of that evidence still exists.

At the Law Offices of Terry W. Posey, we have represented injured people throughout the Miami Valley for over 30 years, across the full range of personal injury claims. The consultation is free, and you pay no fee unless we win. Call 937-236-6444 to talk about what happened to you.

This article discusses Gustafson v. Ohio State Univ., 2026-Ohio-2792 (Ohio Court of Appeals, Tenth Appellate District, decided July 21, 2026), for general educational purposes. It is not legal advice about any specific case. Premises liability outcomes depend heavily on the individual facts, the type of hazard, and who owns and controls the property. If you think you may have a claim, speak with an attorney promptly.