TAMMY L. TODD, ET AL. v. CITY OF CLEVELAND
No. 98333
Court of Appeals of Ohio, Eighth Appellate District, County of Cuyahoga
January 17, 2013
[Cite as Todd v. Cleveland, 2013-Ohio-101.]
Case No. CV-758883
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-758883
BEFORE: Rocco, J., Stewart, A.J., and Keough, J.
RELEASED AND JOURNALIZED: January 17, 2013
Barbara A. Langhenry
Interim Director of Law
By: Jerome A. Payne, Jr.
Assistant Director of Law
City Hall—Room 106
601 Lakeside Avenue
Cleveland, Ohio 44114
ATTORNEY FOR APPELLEES
Scott I. Levey
Mondello & Levey
55 Public Square
Suite 1616
Cleveland, Ohio 44113
{¶1} Plaintiff Tammy Todd was driving on a street in the City of Cleveland when she hit a pothole, lost control of her vehicle, and struck a utility pole. She brought this action against the city seeking damages for the injuries she sustained in the accident, alleging that the city had negligently failed to maintain the road and that the city‘s negligence was the proximate cause of her injuries.
{¶2} The city filed a motion for summary judgment in which it argued that it was immune from liability under
{¶3} The city raises three assignments of error arising out of the denial of its motion for summary judgment. The city argues that the trial court erred in denying its motion for summary judgment because the alleged hazardous pothole was not an “obstruction” under
{¶4} Finding no merit to the city‘s first and second assignments of error and
{¶5} An appeal of a trial court‘s summary judgment ruling is subject to a de novo standard of review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241. We accord no deference to the trial court‘s decision and independently review the record to determine whether summary judgment is appropriate.
{¶6} Under
{¶7} The moving party carries an initial burden of setting forth specific facts that demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the moving party fails to meet this burden, summary judgment is not appropriate; if the moving party meets this burden, summary judgment is appropriate only if the nonmoving party fails to establish the existence of a genuine issue of material fact. Id. at 293.
{¶8} The city‘s first assignment of error states:
1. THE TRIAL COURT ERRED WHEN IT DENIED THE CITY OF CLEVELAND‘S MOTION FOR SUMMARY JUDGMENT BECAUSE THE ALLEGED HAZARD IS NOT AN OBSTRUCTION.
{¶10}
{¶11}
{¶12} In its first assignment of error, the city argues that a pothole is not an “obstruction” as contemplated in
{¶13} There is no statutory definition of “obstructions.” The city‘s argument that a pothole does not constitute an obstruction is debatable. See Crabtree v. Cook, 196 Ohio App.3d 546, 2011-Ohio-5612, 964 N.E.2d 473, ¶ 26 (10th Dist.) (proposition that potholes “could never as a matter of law” rise to the level of “obstructions” under
{¶14} If we interpret
{¶15} The term “in repair” is likewise not defined by the statute. When interpreting
{¶16} Because the city could be liable under
{¶17} The city‘s second assignment of error states:
2. THE TRIAL COURT ERRED WHEN IT DENIED THE CITY OF CLEVELAND‘S MOTION FOR SUMMARY JUDGMENT BECAUSE THE CITY DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE ALLEGED HAZARD.
{¶19} The
{¶20} The city argues that it had no duty to repair the road where Todd‘s accident occurred because it lacked notice of any hazardous potholes. “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. No. 19553, 2000 Ohio App. LEXIS 843, *4 (Mar. 8, 2000), citing Heckert, 15 Ohio St.3d at 405; see also Gomez, 2012-Ohio-1642, at ¶ 7 (“A municipality‘s liability for damages for failing to perform the duty of alleviating faulty road conditions ‘arises only upon proof that 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.‘“), quoting Cleveland v. Amato, 123 Ohio St. 575, 9 Ohio Law Abs. 606, 176 N.E. 227 (1931); Wilson v. Cleveland, 8th Dist. No. 98035, 2012-Ohio-4289, ¶ 23 (“A ‘municipal corporation is liable only for negligence * * * in
{¶21} Thus, in order to prove the city‘s breach of its duty to maintain public roads, Todd would have to establish that, prior to her accident, the city had actual or constructive notice of the hazardous road conditions that allegedly caused the accident.
{¶22} In support of its constructive notice argument, the city submitted an affidavit, indicating that a search of records maintained by the city‘s division of streets revealed no complaints, incidences, or calls regarding potholes, chuckholes, or other hazardous conditions near the accident site for the six-and-a-half-month period prior to Todd‘s accident. The city also offered deposition testimony from Todd, in which she testified that it had been “[m]aybe a year, year-and-a-half” since she had last driven on the road where she had the accident and admitted that she had no firsthand knowledge regarding how long the potholes had been in existence prior to her accident. The city also submitted photographs of the road conditions at the time of Todd‘s accident, which the city argues “do not represent anything unusual for a northeast city” and “bear out that it is something that could have been avoided.”
{¶23} Todd stipulated that the city lacked actual notice of the potholes, but maintains that genuine issues of material fact exist regarding whether the city had constructive notice of the alleged deteriorating and hazardous road conditions prior to her accident. Todd argues that based on the way in which potholes develop in Northeast
{¶24} A person has constructive notice of a defect when the defect 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, 138 N.E. 526 (1922). Todd is not required by
{¶25} When viewing the evidence presented in this case in the light most favorable to Todd, we find that genuine issues of material fact exist regarding whether the city was negligent in failing to repair the roadway prior to Todd‘s accident and, specifically, whether the city had constructive notice of the hazardous road conditions prior to the accident.
{¶26} To defeat summary judgment on the issue of constructive notice, Todd needed to point to some 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 existed 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.” 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.
{¶27} The materials submitted by the parties on summary judgment include several photographs of the accident scene, including photographs showing multiple potholes and deteriorating road conditions that were taken by Todd‘s husband on the day of the accident. The copies of the photographs in the record are of poor quality and do not allow us to see the specific size or depth of the potholes struck by Todd‘s vehicle.1 However, they show the existence and location of multiple potholes and a deteriorating roadway.2
{¶28} The record also contains testimony from Todd regarding the road conditions
and sequence of events leading up to her accident. Todd testified she “saw that the road was kind of not good“; she hit one pothole and then another. Todd testified that she did not know the size or depth of the potholes, but the potholes were of sufficient size and location that when her vehicle struck them, she lost control of the vehicle and hit a utility pole. Based on the photographs from the day of the accident showing the potholes and deteriorating road conditions, Todd‘s testimony regarding the accident, and the proximity of the potholes to a busy city impound lot, a factfinder could reasonably infer that the roadway was unsafe and that the hazardous road condition had existed for a sufficient period of time that someone from the city with the appropriate authority or responsibility to maintain the roadway, in the exercise of reasonable care, should have driven down that road, noticed the potential danger presented by the potholes, and taken action to remedy them prior to Todd‘s accident. Todd has, therefore, put forth sufficient evidence demonstrating a genuine issue of fact regarding whether the city had constructive notice of the hazardous road condition prior to her accident. As such, genuine issues of material fact exist as to the applicability of the public roads exception to statutory immunity set forth in
{¶29} The city‘s second assignment of error is overruled.
{¶30} The city‘s third assignment of error states:
3. THE TRIAL COURT ERRED WHEN IT DENIED THE CITY OF CLEVELAND‘S MOTION FOR SUMMARY JUDGMENT BECAUSE THE ALLEGED HAZARD WAS OPEN AND OBVIOUS.
{¶32}
{¶33} Because denial of a summary judgment motion based on the open and obvious doctrine presents an issue of common law negligence, this court does not have jurisdiction to consider the merits of such an argument until the decision becomes final. See, e.g., Leasure, supra (trial court‘s denial of summary judgment based on open and
{¶34} Accordingly, this court lacks jurisdiction to consider the city‘s third assignment of error.
{¶35} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KENNETH A. ROCCO, JUDGE
KATHLEEN ANN KEOUGH, J., CONCURS;
MELODY J. STEWART, A.J., DISSENTS
(SEE ATTACHED OPINION)
MELODY J. STEWART, A.J., DISSENTING:
{¶36} The majority presents a puzzling analysis on the issue of constructive notice. It correctly notes that the photographs purporting to show the size and depth of the pothole that Todd‘s vehicle allegedly struck cannot be considered because they were added to the record on appeal. It also correctly says that the photographs that are
{¶37} The majority also states that the city had constructive notice of the pothole that Todd struck because the proximity of the pothole to a city impound lot was enough that “someone from the city with the appropriate authority or responsibility to maintain the roadway, in the exercise of reasonable care, should have driven down that road, noticed the potential danger presented by the potholes, and taken action to remedy them * * * .” The majority does not identify who this “someone” with responsibility to maintain the roadway might be. Certainly, impound lot employees and tow truck drivers (who are independent contractors) would not have any responsibility to maintain a city street. Perhaps the majority refers to police officers going back and forth from the impound lot, but Todd offered no evidence that police officers have any responsibility to maintain city streets, so their knowledge of potholes would not be enough to put the city on notice. Cleveland v. Payne, 72 Ohio St. 347, 74 N.E. 177, (1905) paragraph two of the syllabus.
{¶38} Finally, it is unclear why the majority is willing to accept Todd‘s assertion