Nicholas v. Lake Cty.Nicholas v. Lake Cty.
Case Information
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[Cite as
Nicholas v. Lake Cty.
,
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
NORMA NICHOLAS, et al., : O P I N I O N
Plaintiffs-Appellees, :
CASE NO. 2012-L-140 - vs - :
LAKE COUNTY JUVENILE COURT, :
Defendant,
LAKE COUNTY, :
Defendant-Appellant. : Civil Aрpeal from the Lake County Court of Common Pleas, Case No. 11 CV 003182. Judgment: Affirmed.
William J. Novak and Scott D. Perlmuter, Novak Pavlik Deliberato, L.L.P., Tower City Center, Skylight Office Tower, 1660 West Second Street, Suite 950, Cleveland, OH 44113-1498 (For Plaintiffs-Appellees).
Richard A. Williams and Susan S.R. Petro , 338 South High Street, 2nd Floor, Columbus, OH 43215 (For Defendant-Appellant).
COLLEEN MARY O’TOOLE, J. Appellant, Lake County, appeals from the Deсember 4, 2012 judgment of
the Lake County Court of Common Pleas, denying its motion for summary judgment on the basis of governmental immunity. On August 11, 2010, appellee Norma Nicholas, stepped off a sidewalk
near the entrance to the Lake County Juvenile Court and suffered significant injuries. During a break in proceedings in which she was a potential witness, Mrs. Nicholas went outside with her daughter, daughtеr-in-law, and grandchildren to smoke a cigarette and call her husband, appellee Dana Nicholas. She was on a sidewalk at the top of a set of concrete steps going down to a lower parking lot, approximately 50 to 75 feet from the entrance to the building. After noticing her four-year-old granddaughter running toward the lower parking lot, Mrs. Niсholas pivoted right to call the child back. She stepped off the sidewalk with her left foot in order to run after her granddaughter. There was a drop off of more than one foot from the sidewalk to the ground which she did not notice, as the area was obscured by tall grass. Mrs. Nicholas’s left foot dropped down and caught in the underside of the concrete sidewalk. She fell, fractured her left ankle, right humerus, and a rib. Mrs. Nicholas underwent surgery for her ankle and had an extended hospital stay. According to Charles Klco, a Lake County building and grounds
department supervisor, it was foreseeable that someone could accidentally step off the side of the walkway into the area at issue. Mr. Klco stated in his dеposition that “because [of] the washout,” rift-raft could be put in to “stop water from flowing underneath the concrete” and “preventing any further wash away from that area.” Thus, after Mrs. Nicholas’s fall and injury, Lake County repaired the area by laying stone. Mr. Klco termed this repair a “normal maintenance” issue.
{¶4} Thereafter, on November 29, 2011, the Nicholases filed a complaint for negligence against the Lake County Juvenile Court and Lake County. [1] The complaint alleged that a defective condition existed on the grounds of the Lake County Juvenile Court, which caused Mrs. Nicholas to fall and sustain severe and permanent physical injuries as well as pain and suffering. The complaint further alleged that Mr. Nicholas, as Norma’s husband, suffered a loss of consortium and services as a result of his wife’s injuries. The Lake County Juvenile Court and Lake County filed an answer on December 19, 2011.
{¶5} On July 12, 2012, Lake County filed a motion for summary judgment asserting, inter alia, that it was entitled to sovereign immunity pursuant to R.C. Chapter 2744. The Nicholases filed an opposition the following month, to which Lake County filed а reply in support of its motion for summary judgment. On December 4, 2012, the trial court denied Lake County’s motion for
summary judgment, holding that it was not entitled to sovereign immunity. Lake County filed a timely appeal asserting the following assignment of error: “The trial court erred in determining that Lake County was not entitled to summary judgment on the issue of sovereign immunity.” Under its sole assignment, Lake County arguеs that the trial court erred in
denying its motion for summary judgment and asserts the following issues: (1) the December 4, 2012 judgment is final and appealable as to the denial of statutory tort immunity under R.C. Chapter 2744; (2) construction and maintenance of courthouse grounds are governmental functions; (3) it is immune from liability because no exception 1. The Nicholases later voluntarily dismissed thе Lake County Juvenile Court and it is not a named party to this appeal.
to the general grant of immunity applies; (4) it is immune from liability because one or
more of the
is no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law.’ Holik v. Richards, 11th Dist. No. 2005-A-0006,
to be viewed lightly as docket control or as a ‘little trial.’ The jurisprudence of summary
judgment standards has placed burdens on both the moving and the nonmoving party.
In Dresher v. Burt, the Supreme Court of Ohio held that the moving party seeking
summary judgment bears the initial burden of informing the trial court of the basis for the
motion and identifying those portions of the record befоre the trial court that
demonstrate the absence of a genuine issue of fact on a material element of the
nonmoving party’s claim. The evidence must be in the record or the motion cannot
succeed. The moving party cannot discharge its initial burden under
{¶14}
“The court in Dresher went on to say that paragraph three of the syllabus
in Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, * * *, * * * is too
broad and fails to account for the burden
moving nor nonmoving party prоvides evidentiary materials demonstrating that there are
no material facts in dispute, the moving party is not entitled to a judgment as a matter of
law as the moving party bears the initial responsibility of informing the trial court of the
basis for the motion, ‘and identifying those portions of the record which demonstrate the
absence of a genuine issue of fact on а material element of the nonmoving party’s
claim.’ Id. at 276. (Emphasis added.)” (Emphasis sic.) (Parallel citations omitted.)
Welch v. Ziccarelli , 11th Dist. Lake No. 2006-L-229,
whether a political subdivision is immune from liability for injury or loss to property. See
Elston v. Howland Local Schools , 113 Ohio St.3d 314,
{¶18}
The first tier provides a general grant of immunity, stating that “a political
subdivision is not liable in damages in a civil action for injury, death, or loss to person or
property allegedly caused by any act or omission of the political subdivision or an
employee of the political subdivision in connection with a governmental or proprietary
function.”
immunity located in
plaintiff must demonstrate that his or her injury was caused by the negligence of a
political subdivision employee and that the injury was due to a physical defect. See,
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e.g., Dunfee v. Oberlin School Dist., 9th Dist. Lorain No. 08CA009497,
under
to Mrs. Nicholas’s injuries do not constitute a “physical defect” within the meaning of
the property. However, Klco indicated that the area at issue was foreseeably traversed by pedestrians on the property and that Lake County had to repair the washout. Thus, it is illogical that county resources would be wasted to repair an “intentional” condition.
{¶25} The Nicholases provided evidence that the area adjacent to and under the sidewalk where Mrs. Nicholas fell was apparently washed out, causing a drop off of more than one foot from the sidewalk. As stated, Mrs. Nicholas’s left foot dropped down and caught in the underside of the concrete sidewalk. She did not notice the hole because the area was obscured by tall grass. The photographs in the record reveal the “washout.” According to Mr.
Klco, it was foreseeable that someone, like Mrs. Nicholas, could accidentally step off the sidewalk into the area at issue. Mr. Klco stated that “because [of] the washout,” rift-rаft could be put in to “stop water from flowing underneath the concrete” and “preventing any further wash away from that area.” Thus, after Mrs. Nicholas’s fall and injury, Lake County repaired the area by laying stone, which goes against Lake County’s theory that the hole was an “intentional condition.” Negligence was established in this case, as Mrs. Nicholas’ injuries
proximаtely resulted from Lake County’s breach of duty to make repairs to the hole prior
to her fall. Based on the facts presented, the hole at issue was a “physical defect,”
thereby removing the cloak of immunity from Lake County under
political subdivision can successfully assert one of the defenses to liability listed in R.C.
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2744.03.” Elston, supra, at ¶12, citing Cater v. Cleveland ,
{¶29} “(A) In a civil action brought against a political subdivision or an employee of a political subdivision to recover damages for injury, death, or loss to person or property allegedly caused by any act or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted to establish nonliability:
{¶30} “* * *
{¶31} “(3) The political subdivision is immune from liability if the action or failure to act by the employee involved that gave rise to the claim of liability was within the discretion of the employee with respect to policy-making, planning, or enforcement powers by virtue of the duties and responsibilitiеs of the office or position of the employee. “* * * “(5) The political subdivision is immune from liability if the injury, death, or
loss to person or property resulted from the exercise of judgment or discretion in
determining whether to acquire, or how to use, equipment, supplies, materials,
personnel, facilities, and other resources unless the judgment or discretion was
exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.”
Lake County agrees that, on its face,
“stop water from flowing underneath the concrete” and “preventing any further wash
away from that area.” He had not nоticed the area at issue before Mrs. Nicholas’s fall,
which refutes Lake County’s assertion that the area was part of the original landscape
design. Based on the facts presented, Lake County is not entitled to immunity under
dеcision from the Eighth District, Ohio Bell Telephone Co. v. Cleveland , 8th Dist.
Cuyahoga No. 98683,
with Lake County that the court reached the wrong decision. Rather, we determine that the trial court properly concluded that Lake County is not entitled to summary judgment on the issue of sovereign immunity. For the foregoing reasons, Lake County’s sole assignment of error is not
well-taken. The judgment of the Lake County Court of Common Pleas is affirmed. It is ordered that Lake County is assessed costs herein taxed. The court finds there were reasonable grounds for this appeal.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.