2006 Ohio 2572 | Ohio Ct. App. | 2006
{¶ 2} Appellants assert that appellee's claim was barred pursuant to the immunity contained in R.C.
{¶ 3} Since a review of the record demonstrates the trial court's decision was not a final appealable order, however, this court lacks jurisdiction to consider appellants' assertions. Consequently, this appeal is dismissed.
{¶ 4} The record reflects appellee filed this action against appellees for an injury she sustained on February 10, 2004. According to her amended complaint, she was walking on the sidewalk in front of the Cleveland Paul Revere Elementary School when she fell due to an "unnatural accumulation" of ice which resulted from appellants' "negligent and/or wanton and reckless" snow shoveling and salting of the sidewalk area.
{¶ 5} Appellants filed a joint answer in which they denied liability based upon, inter alia, the immunity set forth in R.C.
{¶ 6} Appellants presented three arguments in its motion: 1) the Board of Education was not a proper party; 2) the School District was entitled to immunity from appellee's claim pursuant to R.C.
{¶ 7} Appellee responded with a brief in opposition. She attached her affidavit, in which she stated that she fell off of the edge of the sidewalk in front of the school. She further stated that she could not see the steep 5-6 inch "drop-off" that existed between the sidewalk's edge and the parking area because it was obscured and rendered more dangerous by an accumulation of ice that had resulted from the way the snow had been shoveled. In order to illustrate, she provided a photograph of the area of her fall. She also attached a copy of a computer screen display which indicated the Board was the record title owner of the school property.
{¶ 8} Appellants filed a reply brief and requested the trial court to "strike" appellee's affidavit, charging that it contradicted her deposition testimony. They additionally provided a copy of appellee's responses to their interrogatories.
{¶ 9} Ultimately, the trial court issued a judgment entry which stated: "[Appellants'] motion for summary judgment * * * is hereby denied."
{¶ 10} Appellants filed a notice of appeal from the foregoing order.
{¶ 11} They present the following two assignments of error for review:
{¶ 12} "I. The Lower Court erred in denying immunity to the Cleveland Municipal School District as Appellee's deposition testimony did not establish that her injury was attributable to a physical defect.
{¶ 13} "II. The Lower Court erred in denying summary judgment to the Cleveland Board of Education as claims involving tort actions covered by Chapter 2744 R.C. can only be maintained against a school district."
{¶ 14} In order to address appellants' assignments of error, this court first must determine whether appellate jurisdiction exists. A comparison of the facts of this case with the Ohio Supreme Court's recent decision in State Auto. Mut. Ins. Co. v.Titanium Metals Corp.,
{¶ 15} Ordinarily, the denial of a motion for summary judgment does not constitute a final appealable order and is therefore not subject to immediate appeal. R.C.
{¶ 16} Appellants filed this appeal pursuant to R.C.
{¶ 17} Since this provision was passed, Ohio appellate courts have debated its applicability to orders that previously were not considered final. Recently, the Fourth Appellate District declined to apply the provision to the denial of a motion for summary judgment filed by several governmental entities, on the basis that the plaintiff's cause of action accrued prior to its April 9, 2003 effective date. Blankenship v. Portsmouth PoliceDept., Scioto App. Nos. 05CA2999, 3001, 3003,
{¶ 18} On the other hand, the Fifth Appellate District has determined that R.C.
{¶ 19} Similarly, in The Paul C. Harger Trust v. Morrow Cty.Regional Planning Comm., Morrow App. No. 03-CA-19,
{¶ 20} This court followed the same path. Thus, in StateAuto. Mut. Ins. Co. v. Titanium Metals Corp.,
{¶ 21} In relevant part, the Supreme Court reminded this court that an order must be final before it can be reviewed, because an appellate court has no jurisdiction over non-final orders. Id. at ¶ 8. The court held the trial court's order inTitanium Metals lacked finality because it: 1) provided "no explanation for its decision to deny the motion to dismiss," 2) made "no determination as to whether immunity applied," 3) failed to state whether there was an exception to immunity," and, further, 4) failed to determine whether R.C.
{¶ 22} The same problem exists in the instant case. The trial court's order neither provides an explanation nor refers at all to the immunity provided by R.C.
{¶ 23} The situation in this case thus contrasts with the situation presented to the appellate court in Frederick v.Vinton Cty. Bd. Of Edn., Vinton App. No. 03CA579, 2004-Ohio-550. Therein, the trial court made a detailed analysis of the motion for summary judgment, which analysis, in turn, provided a basis for appellate review.
{¶ 24} After reviewing the trial court's order in the instant case, therefore, in light of both the Supreme Court's decision inTitanium Metals and the opinion in Frederick, this court concludes the trial court's journal entry did not constitute a final order.
{¶ 25} Accordingly, this appeal is dismissed.
It is ordered that appellee recover of appellants 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Karpinski, J. and Sweeney, P.J. concur.