Vonderhaar v. City of Cincinnati

• Decision Date: 22 December 2010
• Docket Number: No. C–100146.,C–100146.
• Citation: 191 Ohio App.3d 229,945 N.E.2d 603
• Parties: VONDERHAAR, Appellant,v.City of CINCINNATI, Appellee.
• Court: Ohio Court of Appeals

191 Ohio App.3d 229

945 N.E.2d 603

2010 -Ohio- 6289

VONDERHAAR, Appellant,

v.City of CINCINNATI, Appellee.

No. C–100146.

Court of Appeals of Ohio, First District, Hamilton County.

Decided Dec. 22, 2010.

Michael J. Bergmann, L.L.C., and Michael J. Bergmann, Cincinnati, for appellant.John P. Curp, Cincinnati City Solicitor, and Thomas O. Beridon, Assistant City Solicitor, for appellee.CUNNINGHAM, Presiding Judge.

[Ohio App.3d 231] {¶ 1} Plaintiff-appellant, Joan Vonderhaar, appeals the Hamilton County Common Pleas Court's entry of summary judgment for defendant-appellee, the city of Cincinnati.

{¶ 2} In late August 2005, the city, acting through the Greater Cincinnati Water Works, dug a hole that was allegedly four feet by five feet wide and 48 inches deep in the “tree lawn” area between the sidewalk and curb in front of Vonderhaar's residence, located in the municipality of Cheviot. The excavation was undertaken to repair a water main. Upon completing the necessary repair, the city's work crew filled in the hole with four yards of bank-run gravel, which contained a mixture of sand and gravel.

{¶ 3} Vonderhaar had observed the work crew excavating for the repair. Several days later, she approached the filled-in hole to determine whether the repair site had been seeded. From the sidewalk, she observed one cone at the repair site, near the street, but she saw no warning signage or tape. According to Vonderhaar, her right foot slipped off the sidewalk, and she unintentionally landed in the bank-run gravel. Her right leg then slowly sank about three feet, pulling her body away from her left leg, which had remained on the sidewalk. Two rescue squads pulled her out of the filled-in area. As a result, Vonderhaar allegedly suffered injuries to her right leg, left knee, lower back, and heart.

{¶ 4} Vonderhaar brought a tort action against the city based on negligence and public nuisance. The city answered and raised several defenses, including [Ohio App.3d 232] that the claims were barred by the applicable provisions of R.C. Chapter 2744, Ohio's Political Subdivision Tort Liability Act.

{¶ 5} Later, the city moved for summary judgment on the sole ground that the filled-in hole was an open and obvious danger that Vonderhaar was aware of and therefore the city owed her no duty of care. In support of its motion, the city cited Vonderhaar's deposition testimony in which she stated that before her fall, she had believed the filled-in hole to be potentially dangerous. The city failed to file Vonderhaar's deposition with the court at that time.

{¶ 6} In response to the city's motion, Vonderhaar relied on her own affidavit in which she stated that she had not appreciated any danger and an errata sheet in which she had changed her deposition testimony to indicate that she had not appreciated any danger. She also filed the depositions of three Greater Cincinnati Water Works employees, including an employee who confirmed that the water works had dug a four-foot by five-foot hole in an area in front of Vonderhaar's residence to repair a water main and that its work crew had backfilled the excavation with bank-run gravel.

{¶ 7} The trial court granted summary judgment for the city. This court reversed the entry of summary judgment on the narrow ground that because Vonderhaar's deposition had not been filed, the trial court could not have had before it evidentiary materials to support the motion in accordance with Civ.R. 56. We remanded the case for further proceedings.

{¶ 8} On remand, and after Vonderhaar's deposition had been filed, the city renewed its motion for summary judgment. Vonderhaar asked for and was granted leave to amend her response to the city's renewed motion. Vonderhaar filed the affidavit of David E. Gerner, a real estate lawyer. Gerner averred that based on his examination of the property's title, the city of Cheviot or Vonderhaar, and not the city of Cincinnati or its water works, owned the strip of land where Vonderhaar had been injured.

{¶ 9} Based on Gerner's affidavit, Vonderhaar argued that summary judgment was not appropriate for the additional reason that the open-and-obvious-danger doctrine negated the duty only of property owners and lessees for property defects. According to Vonderhaar, Gerner's affidavit demonstrated that Cincinnati was not an owner or occupier of the repair site and therefore, the Greater Cincinnati Water Works was an “independent contractor” when it had allegedly been negligent and created a public nuisance. Vonderhaar concluded that the open-and-obvious-danger doctrine could not bar her claims as a matter of law and that the principles of comparative negligence should apply.

{¶ 10} In addition, Vonderhaar argued that summary judgment was not appropriate on her negligence claim, because (1) the city had owed her a duty [Ohio App.3d 233] under R.C. 723.01 to keep the public grounds of the municipality safe and (2) the Greater Cincinnati Water Works, as a political subdivision, owed her a duty under R.C. 2744.02(B)(2) and 2744.01(G)(2)(c) to perform without negligence its proprietary function of establishing, maintaining, and operating a utility, including a municipal corporation's water-supply system. She claimed a genuine issue of material fact remained as to whether the city had breached these duties.

{¶ 11} Finally, Vonderhaar noted that the city had not specifically addressed the public-nuisance claim in its motion for summary judgment.

{¶ 12} The trial court again entered summary judgment for the city without explaining the grounds for its decision. In a single assignment of error, Vonderhaar now argues that the trial court erred in granting summary judgment to the city.

{¶ 13} Vonderhaar's first argument relies on the law-of-the-case doctrine. Generally, under this doctrine, the decision of a reviewing court in an action remains the law of that case on the legal questions involved for all subsequent proceedings in the case.¹ More specifically, as noted by the Ohio Supreme Court in Nolan v. Nolan,² “where at a rehearing following remand a trial court is confronted with substantially the same facts and issues as were involved in the prior appeal, the court is bound to adhere to the appellate court's determination of the applicable law.”³ But the law-of-the-case doctrine is inapplicable when the subsequent proceedings involve different evidence or different legal issues.⁴

{¶ 14} To support her argument that the law-of-the-case doctrine applied in this case, Vonderhaar presumes that the second entry of summary judgment was based on the same evidence and the same legal issue. But she is incorrect. This court reversed the first entry of summary judgment because the city, as the moving party, had failed to properly submit Vonderhaar's deposition transcript in support of it motion for summary judgment. This court did not consider the contents of Vonderhaar's deposition or determine the applicability of the open-and-obvious-danger doctrine. Because the proceedings on remand involved an expanded record that differed from the one involved in the earlier proceedings, the law-of-the-case doctrine was inapplicable.

[Ohio App.3d 234] {¶ 15} We now address Vonderhaar's remaining arguments concerning the impropriety of summary judgment. The Ohio Supreme Court set out the standard for considering summary-judgment motions under these circumstances in Dresher v. Burt.⁵ The Dresher court stated the following:

{¶ 16} “[W]e hold that 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 that 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 that 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 be entered against the nonmoving party.” ⁶

{¶ 17} Civ.R. 56(C) provides that the trial court shall render summary judgment if no genuine issue of material fact exists, and if, with the evidence construed most strongly in favor of the nonmoving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. We review the grant of summary judgment de novo, applying the standard set forth in Civ.R. 56.⁷

{¶ 18} Vonderhaar claimed liability against the city based on negligence and nuisance. To determine whether a genuine issue of material fact remains to be litigated, we must turn our attention to the substantive law of these claims.

Negligence

{¶ 19} The elements of negligence are a duty, a breach of that duty, and injury resulting proximately therefrom.⁸ In determining the duty that applied in [Ohio App.3d 235] this case, we note that the record establishes that the excavated area was not located within the municipal corporation of Cincinnati. Thus, R.C. 723.01 and any duties therein did not apply in this case.⁹ Rather, Vonderhaar's negligence claim against the city involved the application of R.C. 2744.02(B)(2) and 2744.01(G)(2)(c).

{¶ 20} R.C. 2744.02(B)(2) provides potential liability against a political subdivision for “injury, death, or loss to person or property caused by the...