JAMES PUFFENBERGER v. CITY OF CLEVELAND, ET AL.
No. 99660
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
October 10, 2013
[Cite as Puffenberger v. Cleveland, 2013-Ohio-4479.]
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-783768
BEFORE: Stewart, A.J., Jones, J., and E.A. Gallagher, J.
Theresa M. Bratton
Christina J. Marshall
Matthew C. O’Connell
Sutter O’Connell Co., L.P.A.
3600 Erieview Tower
1301 E. 9th Street
Cleveland, OH 44114
ATTORNEYS FOR APPELLEES
Barbara A. Langhenry
Director of Law
BY: Jerome A. Payne, Jr.
Assistant Director of Law
City Hall — Law Department
601 Lakeside Avenue, Suite 106
Cleveland, OH 44114
{¶1} This case came to be heard upon the acсelerated calendar pursuant to
{¶2} Plaintiff-appellant James Puffenberger filed suit against the city of Cleveland after sustaining injuries as a result of stepping on an unsecured manhole cover. The trial court granted summary judgment in favor of the city finding that it is immune from liability. We affirm the decision of the trial court.
{¶3} On May 31, 2010, Puffenbеrger was walking home after attending a Memorial Day parade when he stepped onto a covered manhole located on a treе lawn on Lakeshore Boulevard. The cover gave way, flipping up on one side, and Puffenberger fell through the hole up to his chest. He was able to сlimb out of the hole with the assistance of his companions; however, he sustained injuries to his knee that eventually required surgery.
{¶4} The manhole in question is servicеd by the city, and each manhole the city services has a meter assigned to it. The meter number associated with the manhole relevant to this case is 930009579. Prior to Puffenberger’s fall, the manhole was last serviced by the city on March 31, 2010.
{¶5} On appeal, Puffenberger asserts that summary judgment was improper because a genuine issue of fact remains as to whether the city’s maintenance of the manhole was negligent and created a hazardous condition that caused his injuries.
{¶7}
{¶8} Puffenberger argues that under the circumstances of this case, the city is not immune from liability because the city negligently maintained the manhole: an exception to the general immunity rule provided in
Except as otherwise provided in sections 3314.07 and 3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property caused by the negligent performance of acts by thеir employees with respect to proprietary functions of the political subdivisions.
However, before
{¶9} Under
{¶10} “In order to establish negligence, one must show the existence of a duty, a breach of that duty, and that the breach was the proximate cause of an injury.” Nelson at 22, citing Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984). The city argues that there is no evidence to establish that the manhole cover was unsecured due to any negligent maintenance by its employee and also maintains that the manhole was not under the exclusive control of the city for months before, аnd at the time of, the injury.
{¶12} Puffenberger relies on Graves v. E. Cleveland, 8th Dist. Cuyahoga No. 70675, 1997 Ohio App. LEXIS 326 (Jan. 30, 1997), for the proposition that the mere existence of a hazardous condition by the city is sufficient for a finding of negligence. In Graves, the plaintiff was injured after he fell into a pothole on a darkened street in the city of East Cleveland. Id. at 2. He filed suit against the city for failure to maintain its street and street lighting. The trial court granted summary judgment in favor of East Cleveland because the court found that the plaintiff failed to show the city created the defective condition or had aсtual notice or constructive notice of the condition. Id. at 3. This court reversed the judgment finding that the plaintiff did have some evidence
{¶13} Puffenberger’s reliance on Graves, however, is misplaced. In contrast to Graves, here there is no indication that the city was aware of the mаnhole’s hazardous condition. In Wilson v. Cleveland, 8th Dist. Cuyahoga No. 98035, 2012-Ohio-4289, this court specifically held that a “municipal corporation is liable only for negligence in creating a faulty condition or in failing to repair, remove or guard against defects after receiving actual or constructive notice of their existence.” Id. at 23, quoting Graves at 4. See, e.g., Wiley v. Cleveland, 8th Dist. Cuyahoga No. 62543, 1993 Ohio App. LEXIS 2628 (May 20, 1993) (summary judgment for the city was improper where the plaintiff produced evidence of construction on the manhole’s cover just рrior to the plaintiff’s injury); Tyler v. Cleveland, 129 Ohio App.3d 441, 717 N.E.2d 1175 (8th Dist.1998) (summary judgment for the city was improper where the plaintiff provided affidavits showing recent injuries of other people at the samе manhole where the plaintiff was injured).
{¶14} In this case, the affidavit of the superintendent of distribution for the city’s Department of Public Utilities demonstrated that the city was not aware of any complaints regarding the condition of the manhole. Since there is no evidence of when the manhole cover becаme unsecured, how long the hazardous condition existed, and no evidence that
{¶15} Judgment affirmed.
It is ordered that appellees recover of appellant their costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a speciаl 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 Rule 27 of the Rules of Appellate Procedure.
MELODY J. STEWART, ADMINISTRATIVE JUDGE
LARRY A. JONES, SR., J., and
EILEEN A. GALLAGHER, J., CONCUR