Grimmer v. City Of Rocky River
| Decision Date | 30 September 2010 |
| Docket Number | No. 94271,94271 |
| Citation | 2010 Ohio 4683 |
| Parties | WILLIAM E. GRIMMER, ET AL. PLAINTIFFS-APPELLANTS v. CITY OF ROCKY RIVER, ET AL. DEFENDANTS-APPELLEES |
| Court | Ohio Court of Appeals |
REVERSED AND REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-644384
BEFORE: Celebrezze, J., Kilbane, P.J., and Sweeney, J. ATTORNEY FOR APPELLANTS Henry W. Chamberlain Chamberlain Law Firm
ATTORNEYS FOR APPELLEES Andrew D. Bemer Seeley, Savidge, Ebert & Gourash Co. Timothy J. Fitzgerald Gallagher Sharp Kathleen M. Guarente
{¶ 1} Plaintiffs-appellants, William E. Grimmer, Donna Grimmer, and David Grimmer, appeal the grant of summary judgment in favor of appellee, the city of Rocky River ("Rocky River"). Appellants' claim arose out of asingle car accident allegedly caused by an accumulation of ice on a public roadway from a leaking fire hydrant. After a thorough review of the record and based on the following law, we find that summary judgment was inappropriate to dispose of the case.
{¶ 2} In January 2003, the city of Cleveland's Division of Water ("CDW") received a complaint that a fire hydrant near the intersection of Lake Road and Breezevale Cove in the city of Rocky River was leaking. An inspection was undertaken and repairs attempted. On January 31, 2003, a six foot by seven foot cut was made into the right east-bound lane of Lake Road, and an orange barrel was placed in the road at the site. Two affidavits averred that a flashing sign was placed some distance west of the barrel advising drivers to merge left. On February 7, 2003, CDW receivied additional complaints, and it was determined that the hydrant was still leaking. It was finally fixed on February 18, 2003.
{¶ 3} On the morning of February 11, 2003, William Grimmer was traveling to school, taking the same route that he had taken over the previous weeks. William got into the right-hand, eastbound lane after Lake Road transitioned from a two-lane to a four-lane road. William stated that he saw the orange barrel ahead and attempted to change lanes, but was prevented from doing so by another car in the left-hand lane. He applied his breaks to allow the other car to pass before changing lanes. When he applied hisbreaks, he lost control of the car and crashed into a utility pole. William D. Bonezzi, a family friend, was driving a short distance ahead of William and witnessed the crash in his rear-view mirror. Bonezzi averred that he stopped to help William and noticed ice on the road an unspecified distance west of the leaking hydrant in the right-hand lane.
{¶ 4} Appellants filed suit against both Rocky River and Cleveland. Appellees moved for summary judgment in July 2008. Rocky River's motion for summary judgment was granted on December 29, 2008. Cleveland's motion was denied, and it eventually settled with appellants and was dismissed from the action. Appellants then filed the instant appeal assigning two errors for review. For ease of discussion, appellants' assigned errors will be addressed out of order.
{¶ 5} Appellants are appealing from the grant of summary judgment in favor of Rocky River. "Civ.R. 56(C) specifically 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 party against whom the motion forsummary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 364 N.E.2d 267.
{¶ 6} It is well established that 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; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798. In Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107, 662 N.E.2d 264, the Ohio Supreme Court modified and/or clarified the summary judgment standard as applied in Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095. Under Dresher, "the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." (Emphasis sic.) Id. at 296. The nonmoving party has a reciprocal burden of specificity and cannot rest on mere allegations or denials in the pleadings. Id. at 293. The nonmoving party must set forth "specific facts" by the means listed in Civ.R. 56(C) showing a genuine issue for trial exists. Id.
{¶ 7} This court reviews the lower court's granting of summary judgment de novo. Brown v. Scioto Cty. Commrs. (1993), 87 Ohio App.3d 704, 622 N.E.2d 1153. An appellate court reviewing the grant of summary judgment must follow the standards set forth in Civ.R. 56(C). Saunders v. McFaul (1990), 71 Ohio App.3d 46, 50, 593 N.E.2d 24.
{¶ 8} Appellants argue that "the trial court erred in granting [Rocky River's] motion for summary judgment based on [Rocky River's] argument that immunity applies under Ohio Revised Code §2744, and that [Rocky River] properly maintained the roadway."
{¶ 9} Rocky River has a statutory duty to maintain the roads within its borders. R.C. 723.01 states that This section then goes on to state, "[t]he liability or immunity from liability of a municipal corporation for injury, death, or loss to person or property allegedly caused by a failure to perform the responsibilities imposed by this section shall be determined pursuant to divisions (A) and (B)(3) of section 2744.02 of the Revised Code." Id.
{¶ 10} R.C. 2744 grants governmental immunity to political subdivisions. There is a three-tiered analysis to determine whether immunity applies. Under R.C. 2744.02(A)(1), the first tier requires that the defendant be a political subdivision. Elston v. Howland Local Schools, 113 Ohio St.3d 314, 2007-Ohio-2070, 865 N.E.2d 845, ¶10. The second tier focuses on exceptions to immunity under R.C. 2744.02(B). Id. at ¶11 Finally, under the third tier, if an exception was found to exist, immunity may be restored if the political subdivision asserts a defense under R.C. 2744.03. Id. at ¶12.
{¶ 11} Under R.C. 2744.02(A)(1), "a political subdivision is not 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 an employee of the political subdivision in connection with a governmental or proprietary function."
{¶ 12} R.C. 2744.01(F) states that "'political subdivision' or 'subdivision' means a municipal corporation, township, county, school district, or other body corporate and politic responsible for governmental activities in a geographic area smaller than that of the state." R.C. 2744.01(C)(2)(e) defines one "governmental function" as "[t]he regulation of the use of, and the maintenance and repair of, roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, and public grounds"; and R.C. 2744.01(C)(2)(j) defines "governmental function" to include the "[t]he regulation of traffic, and the erection or nonerection of traffic signs, signals, or control devices[.]"
{¶ 13} Under R.C. 2744.02(B), one of the five exceptions that would make a political subdivision, otherwise eligible for immunity, liable for damages is the political subdivision's negligent failure to keep public roads in repair. The version of R.C. 2744.02(B)(3) in effect at the time of the accident provided that "political subdivisions are liable for injury, death, or loss to person or property caused by their failure to keep public roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, or public grounds within the political subdivisions open, in repair, and free from nuisance * * *."
{¶ 14} The focus of this analysis "'should be on whether a condition exists within the political subdivision's control that creates a danger for ordinary traffic on the regularly travelled [sic] portion of the road.'" Taddeo v. Estate of Ellis (2000), 144 Ohio App.3d 235, 242-243, 759 N.E.2d 1266, quoting Mfr. s Natl. Bank of Detroit v. Erie Cty. Road Comm. (1992), 63 Ohio St.3d 318, 322, 587 N.E.2d 819, 823.
{¶ 15} The municipality must exercise ordinary care "to keep its streets, sidewalks, and other public ways open, in repair, and free from nuisance." Maley v. Village of Wyoming (1951), 88 Ohio App. 383, 384, 99 N.E.2d 792.
The abrogation of immunity only arises "upon proof that [a municipality or] 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." City of Cleveland v. Amato (1931), 123 Ohio St. 575, 577, 176 N.E. 227.
{¶ 16} In order for appellants to show that immunity does not apply, they must demonstrate that: (1) an unnatural accumulation of ice1 formed on the regularly-traveled portion of the road that constituted a...
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