Maley v. Village of Wyoming
| Decision Date | 19 February 1951 |
| Citation | 88 Ohio App. 383,99 N.E.2d 792 |
| Parties | , 59 Ohio Law Abs. 414, 45 O.O. 190 MALEY v. VILLAGE OF WYOMING. |
| Court | Ohio Court of Appeals |
Fred W. Murphy, Cincinnati, for plaintiff-appellee.
Robert G. McIntosh, Cincinnati, for defendant-appellant.
Plaintiff recovered a verdict and judgment for damages for personal injuries suffered in a fall she received in stepping off the sidewalk onto the metal cover of a catch basin maintained by the defendant in the space between the curb and the sidewalk of its public street. The appeal is on questions of law.
No claim of original structural defect amounting to an absolute nuisance is made, but rather plaintiff seems to proceed upon the theory of qualified nuisance dependent upon the negligence of the defendant in permitting the cover to remain out of position, so that it would tip when stepped upon, thereby creating a potentially damgerous and unreasonably risk of harm, which in due course injured the plaintiff.
The duty resting upon the municipality arises by virtue of Section 3714, G.C., and in City of Cleveland v. Amato, 123 Ohio St. 575, 176 N.E. 227, in paragraph 1 of the syllabus it was stated to be:
And, 123 Ohio St. at page 577, 176 N.E. at page 228, the Court said: 'Liability of a municipality arises only upon proof that its agents or officers actively created the faulty condition, or that it was otherwise caused and the municipality had actual or constructive notice of its existence.'
The evidence discloses that the metal cover when properly in place was seated on a metal collar, and was fitted on the underside with a lug designed to be inserted in a slot in the collar and turned under a phlange thereon, locking it in place. When thus seated, it would not tip when weight was applied to the surface. When the cover was placed in any other than the locked position, it was capable of being tipped by the application of weight to its surface. It is clear, however, that the cover was not under the exclusive possession and control of the defendant, but exposed to the public generally.
Plaintiff testified it tipped when she stepped upon it, because she heard it bang, and that on arising after having fallen, she put her foot on the cover, and 'it moved, it...
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