Silverman v. Cleveland ( 2021 )

[Cite as Silverman v. Cleveland, 2021-Ohio-688.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
MITCHELL BENSON SILVERMAN, :
Plaintiff-Appellant, :
No. 109549
v. :
CITY OF CLEVELAND, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 11, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-18-907591
Appearances:
Paul V. Wolf and Daniel J. Klanowski, for appellant.
Barbara A. Langhenry, Cleveland Director of Law, and
Luke D. Mahoney, Assistant City Prosecutor, for appellee.
ANITA LASTER MAYS, P.J.:
I. Introduction and Background
Plaintiff-appellant Mitchell Benson Silverman (“Silverman”) appeals
the trial court’s grant of summary judgment in favor of defendant-appellee city of
Cleveland (“city”) for injuries suffered when Silverman stepped into a pothole in
downtown Cleveland. We affirm the trial court’s judgment.
II. Background and Facts
Silverman and his wife were visiting from their home state of New
Mexico. During the early to mid-afternoon hours of January 25, 2018, a sunny, clear
and cold day, Silverman and his wife were returning to their hotel in downtown
Cleveland from a grocery store near the intersection of West Ninth Street and St.
Clair Avenue. The couple was walking southbound along the east side of West 6th
Street. As they traversed the crosswalk at the intersection of West 6th Street and
Frankfurt Avenue, Silverman stepped into a pothole that he alleges caused serious
and permanent injuries. Silverman admitted that he was carrying two grocery bags
in front of him at the time and that his attention was distracted by a couple who was
also entering the intersection.
The November 28, 2018 complaint alleged that the city negligently
breached its duty under R.C. 2744.02(B)(3) to keep the public roadway free of
obstructions and in good repair. The city denied liability and the affirmative
defenses included political subdivision immunity under R.C. Chapter 2744.
Discovery ensued and the city moved for summary judgment on
October 18, 2019. The city argued that no issue of material fact existed that the city
was entitled to sovereign immunity because it lacked actual or constructive notice of
the pothole, which defeated Silverman’s R.C. 2744.02(B)(3) negligence claim.
Mitchell countered that: (1) discovery revealed that the city filled
potholes on Frankfort Avenue between West 3rd and West 9th on January 4, 2017,
September 17, 2017, and January 19, 2018, and the incident occurred on January 25,
2018; (2) a city employee stated at deposition that the pothole appeared to be an
older pothole; and (3) Silverman’s expert opined that a photograph of the pothole
taken in April 2018, almost four months after the incident, depicted natural
weathering that occurred over a long period of time.
The trial court granted the city’s motion. The instant appeal followed.
III. Assignment of Error
Silverman assigns a single error: the trial court erred to the prejudice
of plaintiff-appellant in granting defendant-appellee’s motion for summary
judgment. We disagree.
IV. Standard of Review
Our review of summary judgment is de novo. Grafton v. Ohio Edison
Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241.
Summary judgment is proper only when the movant demonstrates
that, viewing the evidence most strongly in favor of the non-movant,
reasonable minds must conclude that no genuine issue of material fact
remains to be litigated, and the moving party is entitled to judgment as
a matter of law. Hoover v. Norfolk S. Ry. Co., [8th Dist.] Cuyahoga
Nos. 93479 and 93689, 2010-Ohio-2894, ¶ 12, citing Doe v. Shaffer, 90
Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243.
Bland v. Ajax Magnethermic Corp., 8th Dist. Cuyahoga No. 95249, 2011-Ohio-1247,
¶ 7.
V. Discussion
R.C. Chapter 2744 exculpates political subdivisions of tort liability
when performing governmental or proprietary functions, subject to the statutory
exceptions. R.C. 2744.02(A)(1). Determination of immunity involves a tripartite
inquiry. The first question is whether the political subdivision is involved in a
governmental or proprietary function as defined by R.C. 2744.02(A)(1), establishing
immunity.
The second question is whether immunity is eliminated by the
presence of one of the exceptions listed in R.C. 2744.02(B). In most cases, if
immunity remains intact, there is no need to proceed to step three. If immunity is
compromised, the final inquiry is whether immunity is reinstated by
R.C. 2744.03(A). See Maddox v. E. Cleveland, 8th Dist. Cuyahoga No. 96390, 2012-
Ohio-9, ¶ 17; Jacobs v. Oakwood, 8th Dist. Cuyahoga No. 103830, 2016-Ohio-5327,
¶ 9-11.
The parties do not dispute that the city has immunity under
R.C. 2744.01(A)(1) or that the immunity exception under R.C. 2744.02(B)(3) is the
statutory analysis that governs this case. R.C. 2744.02(B)(3) “provides that a
political subdivision may be liable for ‘negligent failure to keep public roads in repair
and other negligent failure to remove obstructions from public roads * * *.’” Leslie v.
Cleveland, 2015-Ohio-1833, 37 N.E.3d 745, ¶ 11 (8th Dist.), quoting
R.C. 2744.02(B)(3).
This court has “interpreted R.C. 2744.02(B)(3) to contain two
exceptions to sovereign immunity.” Id., citing Todd v. Cleveland, 8th Dist.
Cuyahoga No. 98333, 2013-Ohio-101, ¶ 13-14. “Upon giving effect to all of the words
in the statute, the terms ‘in repair’ and ‘obstruction’ exist separately and provide two
independent bases for abrogating immunity.” Id., quoting Todd at ¶ 14, citing
Bonace v. Springfield Twp., 179 Ohio App.3d 736, 2008-Ohio-6364, 903 N.E.2d
683, ¶ 29 (7th Dist.), Crabtree v. Cook, 196 Ohio App.3d 546, 2011-Ohio-5612, 964
N.E.2d 473, ¶ 27 (10th Dist.).
“[A]n ‘obstruction’ is an impediment that ‘blocks or clogs the roadway
and not merely a thing or condition that hinders or impeded the use of the roadway
or that may have the potential to do so.’” Leslie at ¶ 12. On the other hand, “‘in
repair’ has been interpreted to include ‘fixing holes or crumbling pavement.’” Id. at
¶ 14, quoting Todd at ¶ 15, citing Crabtree, 196 Ohio App.3d 546, 2011-Ohio-5612,
964 N.E.2d 473, ¶ 27, citing Bonace, 179 Ohio App.3d 736, 2008-Ohio-6364, 903
N.E.2d 683, ¶ 29.
“Cities have a duty to repair roads that have deteriorated into a
potentially hazardous condition.” Leslie at ¶ 14. “If the city’s ‘negligent failure to
keep public roads in repair’ resulted in the hazardous pothole that allegedly caused
[the plaintiff’s] injuries, the city could be liable under R.C. 2744.02(B)(3).” Id.As Silverman acknowledges, we must address whether Silverman
“has set forth sufficient facts to create a genuine issue as to the city’s negligence.”
Leslie, 2015-Ohio-1833, 37 N.E.3d 745, at ¶ 15. R.C. 2744.02(B)(3). Silverman must
establish the existence of a duty, a breach of that duty, the proximate cause of the
breach, and damages to support a claim of negligence. Id. at ¶ 16.
A political subdivision is required to exercise a standard of care “‘that
care which persons of reasonable and ordinary prudence exercise under like
circumstances and conditions.’” Gomez v. Cleveland, 8th Dist. Cuyahoga No. 97179,
2012-Ohio-1642, ¶ 6, quoting Taylor v. Cincinnati, 143 Ohio St. 426, 447, 55 N.E.2d
724 (1944).
The liability of a municipality for breach of the duty to alleviate a
faulty road issue “‘arises only upon proof that 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.’” Id. at ¶ 7, quoting Cleveland v. Amato, 123
Ohio St. 575, 176 N.E. 227 (1931). Generally, notice that is communicated directly
to or received by a responsible party constitutes “actual notice.” Jenkins v. Ohio
Dept. of Rehab. & Corr., 10th Dist. Franklin No. 12AP-787, 2013-Ohio-5106, ¶ 12;
Amato at 577.
“There is constructive knowledge where the nuisance existed in such a
way that it could or should have been discovered, that it existed for a
sufficient length of time to have been discovered, and that if it had been
discovered it would have created a reasonable apprehension of a
potential danger.” Kertesz [v. Fulton Cty., 6th Dist. Fulton No. F-05-
026, 2006-Ohio-3178,] ¶ 20.
Gomez at ¶ 7.
The trial court determined that the city “had no actual or constructive
notice of the existence of the alleged pothole prior to the time plaintiff tripped and
fell, i.e. January 25, 2018.” Journal entry No. 112274709, p. 1 (Jan. 30, 2020).
“Therefore, the defendant city of Cleveland is granted immunity under R.C.
[Chapter] 2744, and defendant’s motion for summary judgment is granted.” Id.The city confirms that the Joseph L. Stamps Station district garage
(“Stamps District”) is responsible for roadway maintenance for streets located from
west to east from the west bank from the flats through East 105th Street and north
to south from Lake Erie through Woodland Avenue. The district includes the area
where Silverman was allegedly injured.
In support of summary judgment, the city provided an affidavit and
service record exhibits from foreman Kenneth Cenname (“Cenname”) who
supervised street maintenance and repair for the Stamps District. His duties
included:
performing visual inspections of roadways to identify street
maintenance and repair issues on roadways located within the Stamps
District’s assigned region; assigning other personnel in the Division of
Streets to conduct visual inspections of roadways located within the
Stamps District; receiving notice of roadway service requests and
assigning said service requests to personnel within the Division of
Streets as work-orders to perform roadway maintenance and/or repair
work for the reported area; and record keeping for the City’s Division
of Streets.
Cenname Affidavit, ¶ 4.
Cenname explained:
The City receives notice of roadway service requests in the following
ways: as reported by a Division of Streets employee (including myself)
after having performed a visual inspection of a roadway; through
citizens of Cleveland or the public at large who call and report roadway
maintenance issues through the City’s “311” reporting system — which
is a City operated call center designed to provide information and take
service requests from the citizens of Cleveland; or from internal
reporting — such as reports provided by a City employee or City
Department/Division outside of the City’s Division of Streets.
Cenname Affidavit, ¶ 5.
Cenname described the city’s street maintenance and repair protocol
and averred that based on the records of maintenance and repairs for the period
January 26, 2016, through January 26, 2018, the city had not received notice of
problems or issues regarding the portion of Frankfort Avenue in issue. Cenname
confirmed, as Silverman asserts, that permanent patches were applied to “any and
all visible potholes in the area on January 19, 2018,” just a week prior to the alleged
incident. Cenname also stated that the repairs that were made were not as the result
of any advisements or requests. Cenname Affidavit, ¶ 8. “The City did not receive
notice of any problems or issues pertaining to this portion of Frankfort Avenue at
any relevant time on or before January 26, 2018.” Cenname Affidavit, ¶ 9.
Finally, Cenname stated that the first complaint regarding a defect or
pothole in the area in issue was received on April 19, 2018, three months after the
incident in this case. The motion was also supported with the records referenced
by Cenname and a copy of discovery produced by the city and executed by Cenname.
Silverman counters that Cenname’s admission that something may
possibly have been missed though an area is recorded as complete creates a genuine
issue of material fact. Silverman also points to Cenname’s testimony that the
pothole depicted in the photograph was significant and would be deemed a priority
because of size and location. In addition, Silverman cites the testimony of John
Gunn, a foreman with the Stamps District, who testified that the absence of large
chunks of asphalt around or inside of the posthole indicates the pothole may have
been an older pothole.
Silverman’s expert Richard L. Zimmerman (“Zimmerman”) whose
expertise included supervision and inspection of repaired asphalt paving of parking
lots, roadways, and crosswalks, issued an affidavit. Zimmerman concluded that the
pothole was the diameter of a basketball, about four inches deep and “could have
feasibly developed only over an extended period of at least several weeks or longer.”
Zimmerman Affidavit, ¶ 12.
A complainant must introduce evidence to overcome summary
judgment that demonstrates:
“(1) the unsafe condition must have existed in such a manner that it
could or should have been discovered, (2) the condition existed for such
a length of time to have been discovered, and (3) if it had been
discovered, it would have created a reasonable apprehension of
potential danger or an invasion of private rights.”
Gomez, 8th Dist. Cuyahoga No. 97179, 2012-Ohio-1642, ¶ 7, quoting Nanak v.
Columbus, 121 Ohio App.3d 83, 86, 698 N.E.2d 1061 (10th Dist.1997), citing
Beebe v. Toledo, 168 Ohio St. 203, 151 N.E.2d 738 (1958), paragraph two of the
syllabus.
Silverman, Silverman’s expert, and the city’s witnesses reviewed and
testified regarding Silverman’s photographs of the potholes. The city argues that the
photographs were taken between 35 and 65 days after the January 25, 2018 incident
based on Silverman’s sworn interrogatory response that the photograph was taken
in March 2018 by Silverman’s counsel. The city adds that the photographs do not
provide for scale of the dimensions of the pothole.
The remaining evidence proffered by Silverman is that the city may
have missed the pothole based on the statement that it was “possible.” We find that
Silverman has failed to provide evidence sufficient to demonstrate the existence of
a genuine issue of material fact on the issue of notice pursuant to
R.C. 2744.02(B)(3).
The single assigned error is overruled.
VI. Conclusion
The trial court’s judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
ANITA LASTER MAYS, PRESIDING JUDGE
LARRY A. JONES, SR., J., and
EMANUELLA D. GROVES, J., CONCUR