Leslie v. ClevelandLeslie v. Cleveland
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-13-810292
RELEASED AND JOURNALIZED: May 14, 2015
Barbara A. Langhenry
Director of Law
By: Jerome A. Payne, Jr.
Assistant Director of Law
City of Cleveland
601 Lakeside Avenue, Suite 106
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEES
Thomas L. Brunn, Sr.
Thomas L. Brunn, Jr.
Alison D. Ramsey
The Brunn Law Firm Co., L.P.A.
208 Hoyt Block Building
700 West St. Clair Avenue
Cleveland, Ohio 44113
{¶1} Defendant-appellant, city of Cleveland (the City), appeals the trial court‘s denial of its motion for summary judgment. After a careful review of the record and relevant case law, we affirm the trial court‘s ruling in part, reverse in part, and remand for further proceedings consistent with this opinion.
I. Procedural and Factual History
{¶2} On May 15, 2010, plaintiff-appellee Paul Leslie was driving down Wade Park Avenue between E. 82nd and E. 84th streets in the city of Cleveland when he hit a pothole, lost control of his car, and crashed into a wooden utility pole. Leslie filed suit against the City seeking damages for the significant injuries he sustained in the accident. Leslie‘s complaint contained two counts against the City: (1) negligent failure to maintain the road; and (2) malicious and intentional failure to repair the road.
{¶3} The City filed a motion for summary judgment on both counts and argued that it was immune from liability for Leslie‘s injuries pursuant to
II. Standards of Review
A. Summary Judgment
{¶5} Pursuant to
{¶6} The burden of demonstrating that there is no genuine issue of material fact is on the moving party. Dresher v. Burt, 75 Ohio St.3d 280, 292-93, 662 N.E.2d 264 (1996). The movant must affirmatively establish that the nonmoving party‘s claims lack support by pointing to evidence in the form of pleadings, depositions, answers to interrogatories, written admissions, affidavits, etc. Dresher at 293;
{¶7} A trial court‘s grant of summary judgment is subject to de novo review by an appellate court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241. Consequently, we must independently review the record to determine if summary judgment was appropriate, and need not defer to the trial court‘s decision.
B. Political Subdivision Immunity
{¶9} In the present case, both parties agree that the City possesses immunity pursuant to
III. Analysis
{¶10} In its sole assignment of error, the City contends that the trial court erred in denying its motion for summary judgment. First, the City argues that it cannot be held liable for negligent failure to repair the road because its immunity under
A. Applicability of R.C. 2744.02(B)(3)
{¶11} The City primarily contends that the trial court erred in denying summary judgment because the City‘s immunity has not been abrogated under
{¶12} First, the City argues that the pothole in this case is not an obstruction under the meaning of
{¶14} We note initially that
{¶16} A plaintiff alleging negligence must demonstrate the existence of a duty, a breach of that duty, proximate cause, and damages. See, e.g., Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984). The burden of proof is on the plaintiff to establish by a preponderance of the evidence that the defendant failed to exercise the level of care that a reasonably prudent person would exercise under similar circumstances. Republic Light & Furniture Co. v. Cincinnati, 97 Ohio App. 532, 536-537, 127 N.E.2d 767 (1st Dist.1954). Where the standard of care is not common knowledge to the jury, the plaintiff also bears the burden of introducing evidence from which the jury may reasonably infer the appropriate standard of care in the situation. Id. at 532-533.
{¶17} Where negligence revolves around the existence of a hazard or defect, a duty of reasonable care does not arise unless the defendant has notice, either actual or constructive, of such hazard or defect. Davis v. Akron, 9th Dist. Summit No. 19553, 2000 Ohio App. LEXIS 843, *4 (Mar. 8, 2000), citing Heckert at 405. See also Gomez v. Cleveland, 8th Dist. Cuyahoga No. 97179, 2012-Ohio-1642, ¶ 7 (A municipality‘s
{¶18} A party has constructive notice of a defect when it existed for such a period of time that it would have been discovered in the exercise of reasonable care. Bello v. Cleveland, 106 Ohio St. 94, 100, 139 N.E. 526 (1922). Moreover, to defeat summary judgment and show constructive notice, a party must point to evidence in the record indicating that (1) the unsafe condition existed in such a manner that it could or should have been discovered by the city, (2) the condition for such a length of time to have been discovered by the city, and (3) if it had been discovered, it would have created a reasonable apprehension of potential danger or an invasion of private rights. Todd, 2013-Ohio-101 at ¶ 26, citing Gomez, 2012-Ohio-1642 at ¶ 7, quoting 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.
{¶19} Finally,
{¶20} In Todd, the plaintiff hit a pothole, lost control of her automobile, and struck a utility pole. Id. at ¶ 1. She sued the city arguing that it had negligently failed to maintain the road. Id. This court found that a genuine issue of material fact existed as to whether the city had been placed on constructive notice about the potholes. Id. at
{¶21} When viewing the evidence in the light most favorable to Leslie, we find that a genuine issue of material fact exists regarding whether the City had constructive notice of the hazardous condition posed by the pothole on Wade Park Avenue. Both parties submitted materials to support their respective positions. The City submitted affidavits on behalf of the City‘s divisions of streets, water, and water pollution control, which indicated that a search of their records revealed no complaints, maintenance, or repairs regarding potholes on Wade Park Avenue for approximately two years prior to Leslie‘s accident. The City also provided Leslie‘s deposition testimony, in which Leslie stated that he never personally complained to the City about potholes. However, although Leslie testified that he never observed a hole, he acknowledged the presence of a wave in the road and felt it as he traveled down the street.
{¶22} To counter the City‘s assertions, Leslie submitted crash site photographs and police measurements of the pothole, which was calculated to be four feet by seven feet. The photographs depict a large hole of varying depths occupying the majority of one lane of a deteriorating roadway. Leslie also provided a comprehensive investigation report completed by Henry Lipian, a certified accident reconstructionist. Lipian used the police measurements and other factors, such as Leslie‘s speed and the type of car, to conclude
{¶23} Furthermore, Leslie submitted the deposition of an asphalt foreman, Keith Davis, who has been employed in the City‘s division of streets since 1984. Upon viewing the photographs, Davis testified that, in his experience, he believed an underground sewer or water line ruptured and caused the pavement to erode and sink.
{¶24} Finally, Leslie tendered an affidavit and an email from Tammy Pitsenbarger, a resident on Wade Park Avenue who lives near the pothole. Pitsenbarger complained about the pothole to the City via an email to the Mayor‘s Action Center on May 14, 2010, approximately one day before Leslie‘s accident. She expressed concern that the pothole could damage a motorist‘s car. In her affidavit, Pitsenbarger stated that she personally observed the pothole form in January 2010. Moreover, by March and April 2010, Pitsenbarger observed cars crossing into the opposing lane of traffic to avoid colliding with the large pothole. By May 2010, Pitsenbarger witnessed the pothole become so large and hazardous that the foundation of her home rattled when trucks and cars drove over the pothole.
{¶25} Based on the photographs, Leslie‘s testimony regarding the accident, the asphalt foreman‘s affidavit, the accident reconstruction report, police measurements, and the affidavit and email from a resident on Wade Park Avenue, we conclude that a factfinder could reasonably infer that the road was in such an unsafe condition that it should or could have been discovered by the City. A factfinder could reasonably
{¶26} Moreover, we are persuaded that there is a genuine issue of fact with regard to constructive notice in this case because of the City‘s stance with regard to the Pitsenbarger evidence. In the City‘s initial and reply briefs, the City infers that Pitsenbarger‘s account is unreliable by employing the phrases purportedly and presumably in connection with her email and affidavit. For example, the City argued in its reply brief, Pitsenbarger‘s email was presumably sent at 2:40 on Friday, May 1, 2010 to the Mayor‘s Action Center * * *. (Emphasis sic.) That the City questions the validity of Pitsenbarger‘s account suggests the existence of a genuine factual dispute regarding whether the City possessed constructive notice of the pothole. Therefore, we hold that Leslie has demonstrated the existence of a genuine issue of material fact about whether the City possessed constructive notice of the hazardous road conditions on Wade Park Avenue prior to Leslie‘s accident. The trial court properly denied the City‘s motion for summary judgment with regard to Count 1 of the complaint, negligent failure to repair the road.
B. Immunity from Liability for Intentional Torts
{¶28} Leslie did not oppose the City‘s motion for summary judgment with regard to Count 2 of Leslie‘s complaint, wherein he alleged the City intentionally, maliciously, and recklessly caused his injury. Moreover, in the brief submitted for our consideration, Leslie conceded that the City had complete immunity from his intentional tort claim. Thus, the City‘s assignment of error with regard to Count 2 is sustained, and the trial court should have granted the City‘s motion for summary judgment with regard to Count 2.
{¶29} This cause is affirmed in part, reversed in part, and remanded to the lower court for further proceedings consistent with this opinion.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
FRANK D. CELEBREZZE, JR., ADMINISTRATIVE JUDGE
MARY EILEEN KILBANE, J., and
ANITA LASTER MAYS, J., CONCUR