2021 Ohio 688
Ohio Ct. App.2021Background
- On January 25, 2018, Mitchell Silverman stepped into a pothole in downtown Cleveland and suffered injuries; he sued the City under R.C. 2744.02(B)(3) for negligent failure to keep public roads in repair.
- The City moved for summary judgment asserting sovereign immunity because it had no actual or constructive notice of the pothole.
- City records showed permanent patches applied in the area on January 19, 2018 and no complaints about the specific location before the incident; the first recorded citizen complaint about the pothole was April 19, 2018.
- City foremen testified about routine visual inspections and maintenance protocols; one foreman conceded it was “possible” a pothole was missed and another observed signs that the pothole might be older.
- Silverman’s expert opined the pothole was about basketball-sized, ~4 inches deep, and likely developed over several weeks; photographs were taken weeks to months after the fall.
- The trial court granted summary judgment to the City for lack of notice; the court of appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the City had actual or constructive notice of the pothole before the accident | Silverman: patches nearby and foreman testimony that pothole appeared old plus expert opinion and photos create a triable issue on notice | City: no reports or service requests before Jan 26, 2018; repairs on Jan 19 were not prompted by complaints; first complaint Apr 19, 2018; photos lack scale and were taken later | Court: No actual or constructive notice shown; summary judgment affirmed |
| Whether the proffered evidence (photos, expert opinion, foreman testimony) created a genuine issue that the condition existed long enough to be discovered | Silverman: expert says pothole developed over weeks; foreman said it could have been missed; photos corroborate size | City: photos taken after the incident and lack scale; mere possibility of a missed defect insufficient; no timeline or reporting to prove discoverability | Court: Evidence insufficient to satisfy the constructive-notice elements (existence in discoverable manner, sufficient duration, reasonable apprehension of danger); no triable issue |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (de novo review of summary judgment)
- Leslie v. Cleveland, 37 N.E.3d 745 (interpretation of R.C. 2744.02(B)(3): "in repair" vs "obstruction")
- Bonace v. Springfield Twp., 903 N.E.2d 683 ("in repair" includes fixing holes/crumbling pavement)
- Crabtree v. Cook, 964 N.E.2d 473 (same; potholes fall under "in repair")
- Cleveland v. Amato, 176 N.E. 227 (municipal liability requires actual or constructive notice or active creation)
- Nanak v. Columbus, 698 N.E.2d 1061 (elements for establishing constructive knowledge)
- Beebe v. Toledo, 151 N.E.2d 738 (same; constructive notice and discovery principles)