PIEDAD GOMEZ v. CITY OF CLEVELAND
No. 97179
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
April 12, 2012
2012-Ohio-1642
JOURNAL ENTRY AND OPINION
BEFORE: Stewart, P.J., Celebrezze, J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: April 12, 2012
Wayne Pearsall
Law Office of Jazmin Torres-Lugo
2012 W. 25th Street, Suite 416
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Barbara A. Langhenry
Interim Director of Law
BY: Jerome A. Payne, Jr.
Assistant Director of Law
City Hall, Room 106
601 Lakeside Avenue
Cleveland, OH 44114
{1} This case came to be heard upon the accelerated calendar pursuant to
{2} On August 23, 2008, Gomez hit a pothole on a public street that was required to be kept in repair and free from nuisances by the city and, as a result, sustained physical injury and property damages. She filed suit alleging negligence and asserted that the city had brеached its duty by negligently and carelessly maintaining the street. She asserts that the city had actual or constructive notice of the conditions thаt led to her injuries but failed to warn her of the existing hazardous condition. The city in its answer claimed that it did not have actual or constructive notiсe of any alleged hazard.
{3} On May 24, 2011, the city filed a motion for summary judgment on grounds of immunity and lack of actual and/or constructive notice. Three days later, the city supplemented its motion with an affidavit signed by Lillie Hurtt, record custodian for the city‘s division of streets. The affidavit stated that Hurtt had conducted a search of the
{4} In her sole assignment of error, Gomez complains that the trial court erred in granting the city‘s motion for summary judgment. She insists that the photograph appended to her affidavit creates an unresolved issue of material fact concerning the city‘s actual or constructive notice of the pothole that caused her injuries.
{5} Under Ohio law, potholes in thе roadway are “classic examples of nuisances against which political subdivisions have the duty to protect” travelers from injury. Kertesz v. Fulton Cty., 6th Dist. No. F-05-026, 2006-Ohio-3178, ¶ 18; Cater v. Cleveland, 83 Ohio St.3d 24, 30, 697 N.E.2d 610 (1998).
{6} “To avoid summary judgment in a negligence action, the plaintiff must show: (1) the defendant owed her a duty of care; (2) the defendant breached the duty of care; and (3) as a direct and proximate result of the defendant‘s breach, the plaintiff suffered injury.”
{7} A municipality‘s liability for damages for failing to perform the duty of alleviating faulty road conditions “arises only upon proof thаt its agents or officers actively created the faulty condition, or that it was otherwise caused and the municipality has actual or constructive notice of its existence.” Cleveland v. Amato, 123 Ohio St. 575, 176 N.E. 227 (1931). “There is constructive knowledge where the nuisance existed in such a way that it could or should have beеn discovered, that it existed for a sufficient length of time to have been discovered, and that if it had been discovered it would have creatеd a reasonable apprehension of a potential danger.” Kertesz at ¶ 20.
To create a genuine issue of material fact concеrning constructive notice, plaintiffs needed to set forth evidence in the trial court indicating that (1) the unsafe condition must have existed in such a mаnner that it could or should have been discovered, (2) the condition existed for such a length of time to have been discovered, and (3) if it had beеn discovered, it would have created a reasonable apprehension of potential danger or an invasion of private rights.
Nanak v. Columbus, 121 Ohio App.3d 83, 86, 698 N.E.2d 1061 (10th Dist.1997), citing Beebe v. Toledo, 168 Ohio St. 203, 151 N.E.2d 738 (1958), paragraph two of the syllabus.
{8} In Franks v. Lopez, 69 Ohio St.3d 345, 632 N.E.2d 502 (1994), thе plaintiff alleged that the county and township defendants had breached their duty to keep the roads
[A]n аffidavit from an engineering expert describing the hazard, accompanied by photographic exhibits demonstrating the obviousness of the dangеr posed by the failure to maintain * * * [and] the deposition testimony of a nearby resident that there had been at least three previous accidents at this intersection and that the condition * * * had existed for a substantial period of time. Franks at 349.
{9} In the instant case, the city asserts that the recоrds from the division of streets demonstrate that it had no actual or constructive notice that road repairs were needed in the vicinity of Gomez‘s incident during a seven-week period preceding her accident. In response, Gomez contends that the photo attached tо her affidavit creates a genuine issue of material fact to preclude summary judgment at this juncture in the litigation. However, the attached рhotograph, containing a date-stamp of August 10, 2009, and taken almost one year after Gomez was involved in her accident, merely shows orаnge construction cones and barrels, along with signage indicating that the road was closed. While the law establishes that the city has a duty to addrеss potholes that deteriorate into dangerous conditions, the proof that Gomez presents does not suffice to show that there is any issuе of material fact. Gomez‘s affidavit and photograph fail to prove that the city had actual or constructive notice of the аlleged condition of the road at the time of her accident. Therefore, her assignment of error is accordingly overruled.
{10} Judgment affirmed.
The court finds there were reasonable grounds for this apрeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
MELODY J. STEWART, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and SEAN C. GALLAGHER, J., CONCUR