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Fodor v. City of Strongsville11/10/2004
Ltd. of Texas (1991), 59 Ohio St.3d 108.
{ } Civ.R. 56(C) thus makes summary judgment proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. In this case, appellant provided no evidence that either of the appellees breached any duty owed to her.
{ } A sidewalk on a public street is presumed to be under the control of the municipality. Eichorn v. Lustig's Inc. (1954), 161 Ohio St. 11, 13. R.C. 723.01, which imposes a duty on a municipal corporation to keep public sidewalks "free from nuisance," is inapplicable to counties. Ruwe v. Board of County Commrs. of Hamilton County (1986), 21 Ohio St.3d 80, 82; cf., Siegel v. Neff (Aug. 20, 1992), Cuyahoga App. No. 60496.
{ } Cuyahoga County's duty, therefore, extended to only the bridge and its approaches. R.C. 5591.21, 5591.23. Horvath stated in his affidavit that appellant's fall occurred beyond this limit. Since appellant provided no evidence to contradict his statement, the county was exempted from liability. Engle v. Salisbury Twp., Meigs App. No. 03CA11, 2004-Ohio-2029; Hedrick v. City of Columbus (Mar. 30, 1993), Franklin App. Nos. 92AP-1030, 92AP-1031.
{ } Strongsville's duty to maintain the sidewalk is controlled by R.C. 723.01 in conjunction with R.C. Chapter 2744, which has abrogated former case law and conditionally reinstated common law principles of sovereign immunity. Wilson v. Stark Cty. Dept. of Human Services, 70 Ohio St.3d 450 at 452-453, 1994-Ohio-394.
{ } The statutes therefore provide immunity to political subdivisions in the performance of governmental functions; such immunity is subject to only delineated exceptions. Id.; see, also, Amborski v. Toledo (1990), 67 Ohio App.3d 47.
{ } R.C. 2744.01(C)(1) and (2)(e) indicate that the functions of the city which promote public welfare, such as the maintenance of sidewalks, are governmental functions. Since R.C. 2744.02(A)(1) creates a broad immunity for these functions, appellant could prevail on her claims only if she demonstrated an exception applied to the facts of this case. Haynes v. City of Franklin, 95 Ohio St.3d 344, 2002-Ohio-2334.
{ } In her brief in opposition to appellees' motion for summary judgment, appellant asserted her claims against Strongsville fell under the exception set forth in R.C. 2744.02(B)(3). This states in pertinent part that political subdivisions are "liable for injury * to person or property caused by their failure to keep public * sidewalks * open, in repair, and free from nuisance."
{ } However, an exception to the exception exists. According to the Ohio Supreme Court in Haynes, in order to withstand a motion for summary judgment on her claim of nuisance for purposes of R.C. 2744.02(B)(3), appellant had to satisfy a "two-pronged test." Although the evidence, when construed most strongly in her favor, established the condition created a danger to ordinary traffic, she failed to meet the second prong, viz., the "cause of the condition was other than a decision regarding design and construction." (Emphasis added.)
{ } Appellant admitted in her deposition that the expansion gap left between the catch basin cover and the sidewalk, i.e., "the space between the two surfaces" of concrete, was the condition that caught her bicycle tire and caused her mishap. City Engineer Sunyak stated that his inspection of the area in conjunction with his review of the relevant plans showed the catch basin cover and the sidewalk next to it both were designed and constructed by ODOT's contractors during the 1987-88 bridge replacement project.
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