Boucher v. Cleveland, 2023 Ohio 1818

On Oct. 12, 2019 Cleveland Public Power Trouble Department received a complaint about a sunken/damaged utility-access (pole/handhole) cover on W. 3rd St.; a Daily Log was opened that date.
Boucher fell into the recessed access port just before noon on Oct. 13, 2019 and suffered leg/foot injuries; multiple eyewitnesses and photographs indicate no cones/tape at the time of the fall.
Trouble Dept. foreman Joseph Wilson testified he coned and taped the site and referred the repair, but could not independently recall whether he did so on Oct. 12 or Oct. 13 and estimated he was on scene ~20 minutes.
The Daily Log’s entry shows the complaint date as Oct. 12 and an entry in the "Work Done" box stating the site was coned off, but the log bears a system timestamp of 10/13/2019 1:44:28 p.m., after Boucher’s fall.
City moved for summary judgment asserting (1) no negligent performance of a proprietary function because the area was secured, and (2) discretionary-immunity under R.C. 2744.03(A)(5); trial court denied summary judgment, finding triable issues about timing and the timestamp.
The Eighth District affirmed, holding material factual disputes (timing of securing the hazard and ambiguity of the log/timestamp) precluded resolution on summary judgment and made the discretionary-immunity defense premature.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timing of when cones/tape were placed	Boucher: site was unsecured when she fell; witnesses and timestamp show cones/tape placed after fall	City: Daily Log and employee testimony show crew secured site on Oct. 12	Triable factual dispute exists; summary judgment denied
Reliability of employee recollection	Boucher: Wilson could not recall date/time, supporting doubt that site was secured before fall	City: Wilson and others rely on Daily Log date to confirm Oct. 12 response	Court found employee memory depended on the log; that dependence leaves a genuine issue of fact
Significance of Daily Log timestamp	Boucher: system timestamp 10/13/2019 1:44 pm indicates log closed after fall, supporting that site was secured only after accident	City: date at top shows Oct. 12; timestamp may reflect printing or system quirks and does not conclusively show timing	Timestamp is ambiguous and creates a reasonable dispute for trial
Applicability of R.C. 2744.03(A)(5) discretionary-immunity	Boucher: failure to act or late action is not protected discretion; immunity not available	City: decision to secure temporarily and defer permanent repair is an allocation-of-resources judgment protected by R.C. 2744.03(A)(5)	Court: unresolved factual issues (when/what was done) prevent resolving discretionary-immunity on summary judgment

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (Ohio 1996) (de novo appellate review of summary judgment standard)
Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (moving party’s burden to show absence of genuine factual dispute)
Smith v. McBride, 130 Ohio St.3d 51 (Ohio 2011) (three-step analysis for political-subdivision immunity)
Colbert v. Cleveland, 99 Ohio St.3d 215 (Ohio 2003) (exceptions to political-subdivision immunity)
Cater v. Cleveland, 83 Ohio St.3d 24 (Ohio 1998) (framework for immunity exceptions)
Riscatti v. Prime Properties Ltd. Partnership, 137 Ohio St.3d 123 (Ohio 2013) (order denying immunity is final and appellate review is limited to immunity issues)
Franks v. Lopez, 69 Ohio St.3d 345 (Ohio 1994) (scope of discretionary-immunity under R.C. 2744.03(A)(5))
Hall v. Ft. Frye Local School Dist. Bd. of Edn., 111 Ohio App.3d 690 (Ohio Ct. App. 1996) (purpose of immunity: protect allocation-of-resources judgments)
Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75 (Ohio 1984) (elements of negligence)
Heckert v. Patrick, 15 Ohio St.3d 402 (Ohio 1984) (notice is prerequisite where negligence concerns existence of a defect)
Cleveland v. Amato, 123 Ohio St. 575 (Ohio 1931) (liability requires creation of defect or notice of hazardous condition)