[Cite as Cone v. Canton, 2017-Ohio-8035.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
RANDY R. CONE : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
CITY OF CANTON, ET AL. : Case No. 2017CA00043
:
Defendants-Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2016CV00882
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 29, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendants-Appellants
ANNA C. HINES RICHARD A. NICODEMO
10 West Broad Street 218 Cleveland Avenue, SW
Suite 925 Canton, OH 44701-4218
Columbus, OH 43215-2429
For Timken Company
JACK B. COOPER
Millennium Centre-Suite 300
200 Market Avenue North
P.O. Box 24213
Canton, OH 44701-4213
Stark County, Case No. 2017CA00043 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, City of Canton, appeals the February 15, 2017
judgment entry of the Court of Common Pleas of Stark County, Ohio denying its motion
for summary judgment on the issue of sovereign immunity. Plaintiff-Appellee is Randy
Cone.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On June 19, 2014, appellee was operating his motor vehicle on the entrance
ramp from Raff Road to U.S. 30 East when he struck a pothole, causing damages to his
vehicle and his person. The entrance ramp is maintained by the Canton Street
Department. Maintenance includes pothole repair.
{¶ 3} On April 18, 2016, appellee filed a complaint against appellant, alleging
negligence in maintaining the roadway, keeping it free from dangerous conditions and
defects. On January 12, 2017, appellant filed a motion for summary judgment, claiming
immunity under R.C. Chapter 2744. By judgment entry filed February 15, 2017, the trial
court denied the motion, finding genuine issues of material fact to exist on the issue of
constructive notice.
{¶ 4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶ 5} "THE TRIAL COURT ERRED IN DENYING THE CITY OF CANTON'S
MOTION FOR SUMMARY JUDGMENT."
Stark County, Case No. 2017CA00043 3
I
{¶ 6} In its sole assignment of error, appellant claims the trial court erred in
denying its motion for summary judgment under R.C. Chapter 2744. We disagree.
{¶ 7} Summary Judgment motions are to be resolved in light of the dictates of
Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.
Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996):
Civ.R. 56(C) provides that before summary judgment may be
granted, it must be determined that (1) no genuine issue as to any material
fact remains to be litigated, (2) the moving party is entitled to judgment as
a matter of law, and (3) it appears from the evidence that reasonable minds
can come to but one conclusion, and viewing such evidence most strongly
in favor of the nonmoving party, that conclusion is adverse to the party
against whom the motion for summary judgment is made. State ex. rel.
Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,
citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d
466, 472, 364 N.E.2d 267, 274.
{¶ 8} As an appellate court reviewing summary judgment motions, we must stand
in the shoes of the trial court and review summary judgments on the same standard and
evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506
N.E.2d 212 (1987).
Stark County, Case No. 2017CA00043 4
{¶ 9} As explained by this court in Leech v. Schumaker, 5th Dist. Richland No.
15CA56, 2015-Ohio-4444, ¶ 13:
It is well established the party seeking summary judgment bears the
burden of demonstrating that no issues of material fact exist for trial.
Celotex Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91
L.Ed.2d 265(1986). The standard for granting summary judgment is
delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280 at 293: " * * * a party
seeking summary judgment, on the ground that the nonmoving party cannot
prove its case, bears the initial burden of informing the trial court of the basis
for the motion, and identifying those portions of the record that demonstrate
the absence of a genuine issue of material fact on the essential element(s)
of the nonmoving party's claims. The moving party cannot discharge its
initial burden under Civ.R. 56 simply by making a conclusory assertion the
nonmoving party has no evidence to prove its case. Rather, the moving
party must be able to specifically point to some evidence of the type listed
in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has
no evidence to support the nonmoving party's claims. If the moving party
fails to satisfy its initial burden, the motion for summary judgment must be
denied. However, if the moving party has satisfied its initial burden, the
nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to
set forth specific facts showing there is a genuine issue for trial and, if the
nonmovant does not so respond, summary judgment, if appropriate, shall
Stark County, Case No. 2017CA00043 5
be entered against the nonmoving party." The record on summary
judgment must be viewed in the light most favorable to the opposing party.
Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150.
{¶ 10} In Greene County Agricultural Society v. Liming, 89 Ohio St.3d 551, 556-
557, 733 N.E.2d 1141 (2000), the Supreme Court of Ohio explained the three tier analysis
required for determining if sovereign immunity applies:
R.C. Chapter 2744 sets out the method of analysis, which can be
viewed as involving three tiers, for determining a political subdivision's
immunity from liability. First, R.C. 2744.02(A)(1) sets out a general rule that
political subdivisions are not liable in damages. In setting out this rule, R.C.
2744.02(A)(1) classifies the functions of political subdivisions into
governmental and proprietary functions and states that the general rule of
immunity is not absolute, but is limited by the provisions of R.C. 2744.02(B),
which details when a political subdivision is not immune. Thus, the relevant
point of analysis (the second tier) then becomes whether any of the
exceptions in R.C. 2744.02(B) apply. Furthermore, if any of R.C.
2744.02(B)'s exceptions are found to apply, a consideration of the
application of R.C. 2744.03 becomes relevant, as the third tier of analysis.
{¶ 11} In its April 18, 2016 complaint, appellee alleged appellant negligently
maintained the entrance ramp which resulted in damages to his vehicle and person.
Stark County, Case No. 2017CA00043 6
{¶ 12} In its January 12, 2017 motion for summary judgment, appellant argued it
was immune from liability under R.C. Chapter 2744. R.C. Chapter 2744 provides
immunity to political subdivisions, unless the claim falls within an enumerated exception.
R.C. 2744.02(A)(1) states the following in pertinent part: "Except as provided in division
(B) of this section, 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." R.C. 2744.01(C)(2)(e) specifically defines the "regulation of the
use of, and the maintenance and repair of, roads, highways, streets, avenues, alleys,
sidewalks, bridges, aqueducts, viaducts, and public grounds" as a governmental function.
R.C. 2744.02(B) lists the following exceptions to immunity:
Subject to sections 2744.03 and 2744.05 of the Revised Code, a
political subdivision is liable in damages in a civil action for injury, death, or
loss to person or property allegedly caused by an act or omission of the
political subdivision or of any of its employees in connection with a
governmental or proprietary function, as follows:
(1) Except as otherwise provided in this division, political
subdivisions are liable for injury, death, or loss to person or property caused
by the negligent operation of any motor vehicle by their employees when
the employees are engaged within the scope of their employment and
authority.
***
Stark County, Case No. 2017CA00043 7
(2) 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 their
employees with respect to proprietary functions of the political subdivisions.
(3) Except as otherwise provided in section 3746.24 of the Revised
Code, political subdivisions are liable for injury, death, or loss to person or
property caused by their negligent failure to keep public roads in repair and
other negligent failure to remove obstructions from public roads, except that
it is a full defense to that liability, when a bridge within a municipal
corporation is involved, that the municipal corporation does not have the
responsibility for maintaining or inspecting the bridge.
(4) Except as otherwise provided in section 3746.24 of the Revised
Code, political subdivisions are liable for injury, death, or loss to person or
property that is caused by the negligence of their employees and that occurs
within or on the grounds of, and is due to physical defects within or on the
grounds of, buildings that are used in connection with the performance of a
governmental function, including, but not limited to, office buildings and
courthouses, but not including jails, places of juvenile detention,
workhouses, or any other detention facility, as defined in section 2921.01 of
the Revised Code.
(5) In addition to the circumstances described in divisions (B)(1) to
(4) of this section, a political subdivision is liable for injury, death, or loss to
person or property when civil liability is expressly imposed upon the political
Stark County, Case No. 2017CA00043 8
subdivision by a section of the Revised Code, including, but not limited to,
sections 2743.02 and 5591.37 of the Revised Code. * * *
{¶ 13} Appellant argued none of the exceptions were applicable to this case, but
appellee may attempt to argue the exception contained in subsection (B)(3) i.e., if
appellant's "negligent failure to keep public roads in repair" resulted in the pothole that
allegedly caused appellee's damages and injuries, appellee could be liable under R.C.
2744.02(B)(3).
{¶ 14} "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
WL 254900, *1 (Mar. 8, 2000), citing Heckert v. Patrick, 15 Ohio St.3d 402, 473 N.E.2d
1204 (1984).
{¶ 15} Appellant argued it did not have actual or constructive knowledge of the
pothole. On the contrary, appellee argued in his response filed January 30, 2017, that
appellant had constructive notice of the hazardous condition of the roadway and therefore
was not immune from liability pursuant to R.C. 2744.02(B)(3).
{¶ 16} The issue then is whether a genuine issue of material fact exists as to
whether appellant had constructive notice of the pothole in question.
{¶ 17} As explained by our brethren from the Eighth District in 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:
Stark County, Case No. 2017CA00043 9
To create a genuine issue of material fact concerning constructive
notice, plaintiffs needed to set forth evidence in the trial court indicating that
(1) the unsafe condition must have existed in such a manner that it could or
should have been discovered, (2) the condition existed for such a length of
time to have been discovered, and (3) if it had been discovered, it would
have created a reasonable apprehension of potential danger or an invasion
of private rights.
{¶ 18} In its summary judgment motion at 7, appellant argued "no evidence exists
that the alleged pothole existed for any factually significant length of time or that Canton
knew or should have known of its existence after it formed." Appellant continued, "given
the fact the Raff ramp was fully inspected and repaired on May 23rd, less than one (1)
month before the subject incident, June 19th, the undisputed evidence indicates that the
pothole formed only shortly before that critical date." Attached to the motion were the
depositions of appellee and Larry Emerick, the General Foreman of the Canton Street
Department. Mr. Emerick also provided an affidavit, attesting to numerous repairs of
potholes on the entrance ramp between January 11, and May 23, 2014. He also averred
potholes can form within hours and how quickly a pothole forms "is largely dependent
upon weather and traffic conditions." He also stated no complaints of potholes on the
entrance ramp were reported after May 23, 2014.
{¶ 19} In his deposition, Mr. Emerick admitted the ramp "was horrible," and at that
time of the year, potholes "just pop up. I mean, you can do one street and hit every
pothole and come back two days later and there will be another hole there." Emerick
Stark County, Case No. 2017CA00043 10
depo. at 24-25, 36. He stated street department crews frequented the entrance ramp and
if any potholes were visible, they "would be out there taking care of it." Id. at 27-28. He
stated the Street Department "patrols to see if potholes are around the city," "[m]ostly,
when I'm checking on the crews, I'll come across one" and write it down on a piece of
paper. Id. at 39.
{¶ 20} In his response at 6, appellee argued he has presented sufficient evidence
to establish a large pothole formed on the entrance ramp, the pothole caused his accident,
and appellant knew or should have known of the hazardous condition. Appellee argued
appellant knew the condition of the entrance ramp "was horrible" and required numerous
repairs prior to the incident. Attached to the response are photographs of the subject
pothole taken by the Ohio State Highway Patrol four days after the incident. The
photographs indicate a large, lengthy pothole surrounded by crumbling pavement, with
numerous cracks on both sides of the entrance ramp. According to appellee, the pothole
"was approximately 2' 1" wide, 4' 1" long and 3-5" deep." January 30, 2017 Response at
1. In his deposition at 26 and 36, appellee testified he struck the pothole while looking to
his left to make sure it was safe to merge onto the highway.
{¶ 21} In its February 15, 2017 judgment entry denying the motion for summary
judgment, the trial court found, "pursuant to R.C. 2744.02(B)(3), the question of whether
Defendant had constructive notice of the hazardous condition, so as to breach that
immunity from liability which is generally afforded government entities, is a question of
material fact which exists and which precludes summary judgment in this matter." We
agree with the trial court's decision. A factfinder could reasonably infer that the pothole
and the conditions of the entrance ramp did not form in a very short period of time,
Stark County, Case No. 2017CA00043 11
someone from the Street Department should have discovered the condition and taken
action to repair it prior to the incident, and a pothole this size on an entrance ramp to a
highway could have created a reasonable apprehension of potential danger. See Leslie
v. Cleveland, 8th Dist. Cuyahoga No. 101771, 2015-Ohio-1833; Davis v. Akron, 9th Dist.
Summit No. 27014, 2014-Ohio-2511; Todd v. Cleveland, 8th Dist. Cuyahoga No. 98333,
2013-Ohio-101.
{¶ 22} We distinguish the case cited by appellant, Gomez v. Cleveland, 8th Dist.
Cuyahoga No. 97179, 2012-Ohio-1642. In Gomez, the plaintiff also hit a pothole and
sustained injuries and damages. In support of her argument against summary judgment,
the plaintiff submitted a photograph of the intersection/road in question dated nearly a
year after the incident. The photograph depicted the road and orange barrels and road
closure signs to demonstrate "that a great deal of road construction had taken place
there." Gomez at ¶ 3. The Gomez court at ¶ 9 found the plaintiff's proof "does not suffice
to show that there is any issue of material fact" and her "affidavit and photograph fail to
prove that the city had actual or constructive notice of the alleged condition of the road at
the time of her accident." In this case, the photographs depicted the pothole and the
condition of the entrance ramp four days after the incident.
{¶ 23} Upon review, we find the trial court did not err in denying appellant's motion
for summary judgment.
{¶ 24} The sole assignment of error is denied.
Stark County, Case No. 2017CA00043 12
{¶ 25} The judgment of the Court of Common Pleas of Stark County, Ohio is
hereby affirmed.
By Wise, Earle, J.
Gwin, P.J. and
Hoffman, J. concur.
EEW/sg 809