concurring. I concur with the majority that by applying Civ. R. 56(C) to the facts of this case, an issue was raised as to whether the guardrail here was in fact a portion of the highway under R.C. 723.01, as interpreted by this court in Dickerhoof v. Canton (1983), 6 Ohio St. 3d 128, and Strunk v. Dayton Power & Light Co. (1983), 6 Ohio St. 3d 429.
I further concur with the majority that a jury issue was raised as to whether the guardrail at the time of the accident constituted a nuisance.
Additionally, I must point out that a further element which has been raised as a potential, but necessary, issue in this case is whether, once the duty of the appellee village might be established and this particular guardrail determined to be a nuisance, upon the facts of the case, the village did in fact have actual or constructive notice of such nuisance. Cleveland v. Amato (1931), 123 Ohio St. 575.
W. Brown, J., concurs in the foregoing concurring opinion.