Cone v. Canton
2017 Ohio 8035
| Ohio Ct. App. | 2017Background
- On June 19, 2014 Randy Cone struck a large pothole on the Raff Road entrance ramp to U.S. 30 East (maintained by Canton), sustaining vehicle damage and personal injury.
- Cone sued the City of Canton in April 2016 for negligent maintenance of the roadway.
- Canton moved for summary judgment (Jan. 12, 2017), asserting sovereign immunity under R.C. Chapter 2744.
- The trial court denied summary judgment (Feb. 15, 2017), finding genuine issues of material fact about whether the City had constructive notice of the pothole.
- The appellate court reviewed whether the R.C. 2744.02(B)(3) exception (negligent failure to keep public roads in repair) applied based on constructive notice and affirmed the denial of summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the city is immune under R.C. Chapter 2744 or liable under the (B)(3) exception for failing to keep roads in repair | Cone: the ramp was in poor condition; the pothole was large and existed long enough that the City knew or should have known (constructive notice) | Canton: governmental immunity applies; no actual or constructive notice because ramp was inspected and repaired ~1 month earlier and potholes can form quickly | Held: genuine factual dispute exists about constructive notice; (B)(3) exception may apply, so summary judgment improperly granted for immunity (trial court denial affirmed) |
| Whether evidence establishes constructive notice as a matter of law | Cone: photographs and history of repeated repairs support an inference the defect existed long enough to be discovered | Canton: testimony and affidavits that crews patrolled and no complaints after May 23 suggest pothole formed shortly before incident | Held: reasonable minds could differ; factual issues preclude summary judgment on constructive notice |
Key Cases Cited
- State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447 (framework for Civ.R. 56 summary judgment standard in Ohio)
- Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35 (appellate review of summary judgment uses same standard as trial court)
- Celotex Corp. v. Catrett, 477 U.S. 317 (moving party's initial burden in summary judgment practice)
- Dresher v. Burt, 75 Ohio St.3d 280 (party seeking summary judgment must identify record evidence negating essential elements)
- Greene County Agricultural Society v. Liming, 89 Ohio St.3d 551 (three-tier sovereign immunity analysis under R.C. Chapter 2744)
- Beebe v. Toledo, 168 Ohio St. 203 (elements for proving constructive notice)
- Heckert v. Patrick, 15 Ohio St.3d 402 (duty to exercise reasonable care requires notice of hazard)