Hunter v. City of Cleveland, 75-592

• Decision Date: 28 April 1976
• Docket Number: No. 75-592,75-592
• Citation: 346 N.E.2d 303,46 Ohio St.2d 91,75 O.O.2d 160
• Parties: , 75 O.O.2d 160 HUNTER et al., Appellees, v. CITY OF CLEVELAND, Appellant.
• Court: Ohio Supreme Court

Page 91

46 Ohio St.2d 91

346 N.E.2d 303, 75 O.O.2d 160

HUNTER et al., Appellees, v. CITY OF CLEVELAND, Appellant.

No. 75-592.

Supreme Court of Ohio.

April 28, 1976.

Michael Hunter and his father, appellees herein, brought this action against the city of Cleveland to recover damages for injuries Michael received while attempting to cross a street at a crosswalk. At the time of the accident he was six years old.

On the day of the accident, city employees had removed approximately 15 feet of curbing from a street corner in the vicinity of a school playground. New curbing was to be installed the next day. The removal of the curbing resulted in a hole two feet wide, two feet deep and 15 feet long, passing through a crosswalk located at the corner. The excavation left exposed the jagged edges of the street paving bricks.

The accident occurred in the early evening of a summer day while it was still daylight. Just prior to the accident, Michael's older brother, returning home from the playground with Michael and some friends, successfully managed to reach the street at the crosswalk, after jumping over the hole. Michael tried to follow his brother, but was not successful in his attempt to jump over the hole. Falling into the hole, he struck his leg against the edge of the paving bricks, resulting in the injuries which are the subject of this suit.

At the close of plaintiffs' evidence, defendant, city of Cleveland, moved for a directed verdict based upon governmental immunity and failure to prove negligence on the part of the city. The motion was overruled. The jury returned a verdict for Michael in the amount of $15,000, and judgment was entered upon the verdict.

The Court of Appeals affirmed the judgment of the trial court.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Stewart & DeChant Co., L. P. A., and George J. Frantz, Cleveland, for appellees.

James B. Davis, Law Director, and Thomas A. Smith, Cleveland, for appellant.

PER CURIAM.

The principal question presented in this cause is whether the city had notice that the barricades and lanterns it places around excavations are habitually removed, leaving the excavations unguarded.

Before reaching that issue, two initial observations should be made.

First, the plaintiff Michael Hunter was six years old at the time of the accident. As such, he is conclusively presumed to be incapable of negligence. DeLuca v. Bowden (1975), 42 Ohio St.2d 392, 329 N.E.2d 109; Holbrock v. Hamilton Distributing, Inc. (1967), 11 Ohio St.2d 185, 228 N.E.2d 628. Had the plaintiff not been of such tender years, this court would have been compelled to find that the injuries were the result of his own conduct under the facts of this case.

Second, although the city of Cleveland argues otherwise, it is clear that this case comes within the ambit of R.C. 723.01, since the plaintiff was attempting to cross the street at a crosswalk.

Turning, then, to the issue of notice, we find the following testimony of one of the city employees:

'Q. So that, on this particular day and on this particular job, how many barricades did you use, altogether?

'A. Altogether? On this job we used-it depends on how long the hole is.

'Q. I believe you previously testified, about eight?

'A. About eight. Something like that. I can't really say.'

This establishes that there were about eight barricades surrounding the excavation when the workers left the job site.

The testimony continues:

'Q. Now, when you got back to the jobsite in the morning, you didn't find the barricades up, isn't that right?

'A. That's correct.

'Q. They were down?

'A. They were down.

'Q. But that's not unusual? This usually happens?

'A. This usually happens.

'Q. And when you got back to this jobsite the next day, the lanterns were gone?

'A. Right.

'Q. And that, again, is not unusual?

'A. That's right.

'Q. This usually happens?

'A. That happens all the time.

'Q. As a matter of fact, I think you told me you used something like a box of lanterns a week?

'A. Right.

'Q. But this invariably happens on these jobs? They dispose of barricades and they dispose of the lights?

'A. That's correct.

'* * *

'Q. And it was on the instructions of your supervisor that you put up these barricades, is that right?

'A. That's correct.

'Q. So, we know that you say you say you put up the barricades and the lanterns, right?

'A. That's correct.

'Q. But we also know that these are invariably taken, or removed, during the night? Right?

'A. They take them, yes, that's true.

'Q. So, we know that even though you put them up, you know that they are not going to be there in the morning, right?

'A. (A nod of...