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Fodor v. City of Strongsville11/10/2004
{ } In this action for personal injury resulting from a bicycle mishap, plaintiff-appellant Nanette Fodor appeals from the trial court orders that granted summary judgment in favor of defendants-appellees, the City of Strongsville, Ohio and Cuyahoga County, Ohio.
{ } Appellant argues summary judgment for the appellees was inappropriate. She contends issues of fact remain concerning which entity had responsibility to maintain the sidewalk where the mishap occurred, and whether that entity was immune from liability. Following a review of the record, this court determines the trial court's decisions were correct; therefore, they are affirmed.
{ } Appellant's injuries resulted from an incident that occurred on the morning of Thursday, May 11, 2000. She, her husband and a friend were bicycling from the city of Berea, Ohio on the Cleveland Metropolitan Park ("the metropark") District's all-purpose asphalt trail ("the bicycle path"). Appellant took the lead to set the pace of the ride. Upon entering the city of Strongsville, the trio was diverted when the bicycle path was blocked because of a construction project.
{ } They proceeded up the Whitney Road hill, turned left when they came to Albion Road, and then turned left again onto State Route 42, or Pearl Road. They intended to return to the bicycle path; the Pearl Road entrance to the metropark was a short, downhill distance away. Since the morning traffic was heavy on the four-lane road, appellant chose to ride on the sidewalk.
{ } A bridge carried Pearl Road over a branch of the Rocky River. Appellant had just crossed the bridge and could see the metropark entrance ahead when she noticed that the guardrail to her right crowded the sidewalk. In response, she directed her bicycle's front tire to the left; however, the tire suddenly became lodged in the seam where a concrete sewer "catch basin" cover had been set into the sidewalk. She braked to slow her speed but lost control of the bicycle and pitched over the handlebars to land on her side, sustaining cuts and bruises.
{ } Appellant subsequently instituted this action against appellees and the metropark. In pertinent part, she alleged that the defendants had failed properly to maintain the sidewalk in a safe condition, and that sidewalk's condition constituted a nuisance. The defendants answered her complaint with denials of its pertinent allegations; they also raised the affirmative defense of immunity pursuant to R.C. Chapter 2744.
{ } After securing appellant's deposition, each defendant filed a motion for summary judgment with respect to appellant's claims. Appellee Strongsville argued that R.C. 2744.02(C)(2) provided immunity from liability, and that the exception set forth in R.C. 2744.02(B)(3) was inapplicable. Appellee Cuyahoga County argued that since the evidence demonstrated appellant's mishap had occurred past the bridge, it was absolved from liability pursuant to R.C. 723.01. Both supported their motions.
{ } Strongsville presented the affidavit of City Engineer Mark Sunyak. He stated that the bridge had been replaced in 1987-88 by a construction project "prepared and supervised by the Ohio Department of Transportation (ODOT)." He further stated that he had reviewed ODOT's construction plans for that project; the plans showed the installation of a "recessed catch basin with a rectangular concrete catch basin cover approximately 3 feet by 9 feet * abutting Pearl Road" and the replacement of "the sidewalk running north from the bridge along the right (east) side of the concrete catch basin cover." Both "the rectangular concrete catch basin cover and the abutting sidewalk were designed by ODOT's contract eng
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