Kelly v. Drosos
2013 Ohio 2535
Ohio Ct. App.2013Background
- On Sept. 7, 2009, Kevin Kelly tripped and fell on the sidewalk/brick pavers in front of Pug Mahones in Lakewood, sustaining serious elbow injuries.
- Kelly sued building owner Pericles Drosos, alleging the sidewalk/pavers had a defect in excess of two inches and that Drosos negligently failed to repair it and violated Lakewood Codified Ordinance §903.10.
- Drosos moved for summary judgment, presenting testimony that he had no prior notice of the defect; police observed Kelly smelled of alcohol and could not identify the tripping cause.
- Kelly opposed with evidence of missing/protruding brick pavers, dim lighting, and an affidavit from a nearby property manager stating the defect existed since about 2005.
- The trial court granted summary judgment to Drosos, relying on local precedent; Kelly appealed.
- The appellate court reversed as to negligence based on actual/constructive notice and remanded, but affirmed that liability under §903.10 (requiring prior municipal notice) was not established because the city issued no prior citation to Drosos.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Liability under Lakewood Ord. §903.10 (negligence per se) | Kelly: Drosos knew/should have known of the defect and failed to repair, so §903.10 makes him negligent as a matter of law | Drosos: City issued no prior citation; ordinance requires municipal notice for abutting-owner liability | Court: No genuine issue under §903.10 because city gave no prior notice; appellate court affirmed no §903.10 liability |
| Common-law duty as abutting owner (affirmative creation or negligent maintenance) | Kelly: Evidence (affidavit, photos, uneven pavers since 2005) creates triable issue whether Drosos negligently maintained sidewalk | Drosos: No evidence he created or knew of defect; plaintiff’s assertions are conclusory | Court: Reversed trial court — affidavit raises genuine issue of material fact on negligent maintenance; remanded for further proceedings |
| Summary judgment standard application | Kelly: Submitted specific evidence creating factual dispute precluding summary judgment | Drosos: Submitted testimony undermining plaintiff’s proof; summary judgment appropriate | Court: Applied de novo standard; found genuine issue exists on negligent maintenance but not under the ordinance |
| Burden on nonmoving party to rebut a properly supported motion | Kelly: Met burden with affidavit and other evidence | Drosos: Argued evidence insufficient to rebut unrebutted statements of no knowledge | Court: Found Kelly’s affidavit sufficient to create triable issue for common-law negligent-maintenance exceptions |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (summary-judgment de novo review)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (Civ.R. 56 summary-judgment standard)
- Armstrong v. Best Buy Co., 99 Ohio St.3d 79 (elements of negligence)
- Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7 (resolving doubts for nonmoving party on summary judgment)
- Stamper v. Middletown Hosp. Assn., 65 Ohio App.3d 65 (plaintiff must identify negligent act or omission)
- Mitnaul v. Fairmount Presbyterian Church, 149 Ohio App.3d 769 (appellate standard of review for summary judgment)