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Rosemann v. City of Berea9/2/1999
JUDGMENT AFFIRMED.
In this action for personal injury resulting from a trip and fall, plaintiff-appellant Mildred A. Rosemann appeals from the trial court opinion and order that granted the separate motions for summary judgment filed by defendants-appellees the City of Berea ("Berea") and Baldwin Wallace College ("BW").
Appellant argues summary judgment for appellees was improper on the basis the evidence demonstrated issues of fact remained regarding appellees' awareness of either a nuisance or a dangerous condition existing on the sidewalk where she fell. This court has examined the record and finds the trial court's order was appropriate; therefore, it is affirmed.
Appellant's injuries resulted from an incident that occurred on the afternoon of September 25, 1996. At that time, appellant was walking on a sidewalk on the south side of East Bagley Road in Berea. She was traveling west toward Front Street, having just crossed Seminary Street. Approximately thirty feet ahead of her in the sidewalk, appellant "saw a round, rusted, brown object. Which perceived to be either a gas cap or water cap." The object "appeared to be flush with the sidewalk," which was generally in good condition; appellant apparently did not give it further consideration since she "proceeded."
However, when she reached the area where the object was located, appellant "suddenly was caught as a fox in a trap." She "pitched forward," falling on her right side and fracturing her right arm. A passing motorist observed appellant's predicament and used a cellular telephone to summon emergency assistance.
Upon the arrival of the ambulance, the comments made by an emergency medical technician led appellant to believe she had fallen because the "water cap" in the sidewalk was either "loose" or in an inverted position. Appellant subsequently reported her belief to two cousins who visited her at the hospital to which she had been transported. Appellant's cousins thereafter proceeded to the area of the sidewalk she had described and took photographs of the water cap. One of appellant's cousins, George R. Simon, characterized the water cap as "loose" and "easy to turn" from an "inverted position an upright position."
Appellant ultimately instituted the instant action, originally naming as a defendant only Berea. After discovering Berea had a city ordinance requiring property owners to maintain adjacent sidewalks, appellant amended her complaint to include BW as a defendant. Appellant alleged as to both Berea and BW that they were negligent in permitting a "faulty or obstructive" condition to exist and that the condition constituted a nuisance pursuant to R.C. 723.01.
Following some discovery in the action, Berea filed a motion for summary judgment. Therein, Berea presented three arguments: (1) it neither had created the water cap's defective condition nor had either actual or constructive notice of the water cap's defective condition therefore, appellant could not prove it had breached any duty of care toward her; (2) the defective condition was insubstantial as a matter of law; and (3) Berea had delegated maintenance of the sidewalks to adjacent property owners, thus, it owed no duty of care toward appellant.
Berea supported its motion with copies of the following: (1) portions of appellant's deposition testimony; (2) the deposition transcripts of both Paul McCumbers, Berea's Director of Public Safety and Public Services, and Daniel McGannon, Berea's Water Treatment System Superintendent; and (3) Berea Codified Ordinance 921.06.
BW also filed a motion for summary judgment on appellant's claims. BW initially argued Berea Co
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