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Giebner v. Summit County3/13/2002
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
Appellant, Anita Giebner, appeals the decision of the Summit County Court of Common Pleas, granting summary judgment in favor of appellee, Summit County. We affirm in part and reverse in part.
The following are the facts construed most strongly in favor of Ms. Giebner. On October 30, 1999, Ms. Giebner was visiting her mother, who lived at 4978 Long Drive in Stow, Summit County, Ohio. While walking toward her car, Ms. Giebner tripped over a water valve box, which protruded a few inches above ground level. As a result, Ms. Giebner was injured. The water valve box was located in her mother's front yard and was installed by Summit County in 1981. When it was installed, it protruded above ground level.
On February 23, 2001, Ms. Giebner filed a complaint in the Summit County Court of Common Pleas, claiming that Summit County negligently positioned and/or maintained a water valve box, thereby causing her injury . Summit County answered, asserting, inter alia, that it was immune from liability under R.C. Chapter 2744. On July 13, 2001, Summit County moved for summary judgment arguing that it was not negligent in its installation and maintenance of the water valve box and that the defense contained in R.C. 2744.03(A)(5) operated so as to make Summit County immune from liability. Ms. Giebner responded in opposition. On August 23, 2001, the trial court entered summary judgment in favor of Summit County, holding that Summit County was immune from liability pursuant to R.C. 2744.03(A)(5). This appeal followed.
Ms. Giebner asserts a single assignment of error for review:
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT.
Ms. Giebner avers that the trial court erred in granting summary judgment in favor of Summit County. Specifically, she argues that the trial court erred in determining that Summit County was immune from liability pursuant to R.C. Chapter 2744. She further contends that, as Summit County was not immune from liability, summary judgment was improper because a genuine issue of material fact existed as to all elements of her negligence claim.
Pursuant to Civ.R. 56(C), summary judgment is proper if:
(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.
Appellate review of a lower court's entry of summary judgment is de novo, applying the same standard used by the trial court. McKay v. Cutlip (1992), 80 Ohio App.3d 487, 491. The party seeking summary judgment initially bears the burden of informing the trial court of the basis for the motion and identifying portions of the record demonstrating an absence of genuine issues of material fact as to the essential elements of the nonmoving party's claims. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. The movant must point to some evidence in the record of the type listed in Civ.R. 56(C) in support of his motion. Id. Once this burden is satisfied, the nonmoving party has the burden, as set forth in Civ.R. 56(E), to offer specific facts showing a genuine issue for trial. Id. The nonmoving party may not rest upon the mere allegations and denials in the pleadings but instead must point to or submit s
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