Powell v. Cleveland

[Cite as Powell v. Cleveland, 2022-Ohio-4286.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
MAURIO POWELL, ET AL., :
Plaintiffs-Appellants, :
No. 111338
v. :
CITY OF CLEVELAND, ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 1, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-20-934923
Appearances:
Zuckerman, Lear & Murray, Co., L.P.A., Larry W.
Zukerman, and Brian A. Murray, for appellants.
Mark D. Griffin, Cleveland Director of Law, and Jerome A.
Payne, Jr., Assistant Director of Law, for appellee.
KATHLEEN ANN KEOUGH, J.:
Plaintiffs-appellants, Maurio and Yulonda Powell, appeal the trial
court’s decision granting summary judgment in favor of defendant-appellee, the city
of Cleveland. For the reasons that follow, we affirm.
I. Factual History and Procedural Background
On September 25, 2016, Maurio was operating his motorcycle. As he
approached the intersection of East 30th Street and Central Avenue in Cleveland,
Ohio, he observed in the roadway, a one-inch-thick steel plate that Cleveland city
workers positioned to temporarily cover an excavation area that had been backfilled
in anticipation of the installation of permanent pavement. As Maurio attempted to
maneuver around the steel plate, he encountered a dip in the roadway. He alleged
that the front tire of his motorcycle caught the edge of the steel plate causing him to
lose control of his motorcycle and collide with a concrete divider in the roadway. He
suffered injuries to the left-side of his body, including a broken leg and hip that
required surgery.
The Powells filed a personal injury lawsuit against the city, Rick
Roush Motor Sports, Automotive Partners II, L.L.C., Roush Enterprises, Inc., and
Ian Hodges.1 As it pertains to this appeal, the Powells claimed that the city
negligently failed to (1) keep the public road in repair, (2) remove a raised, metal
obstruction from the public road, and (3) provide adequate warnings of the
hazardous conditions of the public road.2 Yulonda maintained a claim for loss of
consortium. The city filed its answer and asserted several affirmative defenses,
1 The Powells’ causes of action against the non-city defendants pertained to the
installation of an aftermarket larger front wheel/tire on Maurio’s motorcycle.
2 The Powells’ complaint focuses on the city’s placement and usage of the steel plate
in the roadway. The complaint is devoid of any allegation regarding the presence of a dip
or depression in the roadway before the steel plate.
including immunity pursuant to R.C. Chapter 2744, lack of actual or constructive
notice of the alleged hazard or dangerous condition, and that the alleged hazard was
open and obvious.
The city moved for summary judgment contending that it was
immune from liability pursuant to R.C. Chapter 2744. The Powells opposed the
motion, contending that the exception to immunity found in R.C. 2744.02(B)(3)
applies and that genuine issues of material fact exist whether the city was negligent
in keeping the road in repair and free from obstructions, to wit: the condition of the
steel plate and the dip in the roadway, and whether adequate warnings of the alleged
hazardous conditions were provided to motorists traveling the roadway.
The trial court granted the city’s motion for summary judgment
concluding that no exception abrogates the city’s general immunity under
R.C. Chapter 2744 because no evidence was presented to create a genuine issue of
material fact that the roadway was deteriorated or in such disrepair to create a
potentially hazardous condition, or that the roadway contained an obstruction.
The Powells now appeal, raising the following three assignments of
error, each contending that the trial court erred in granting summary judgment in
favor of the city:
I. The lower court erred in granting the city’s motion for summary
judgment when it ignored the facts in the record that raised an
issue of material fact as to whether the road was in disrepair.
II. The lower court erred in granting the city’s motion for summary
judgment when it held that a metal plate could not be an
obstruction as a matter of law.
III. The lower court erred when it failed to consider whether the
failure to place signs warning of the dip or the plate were
proprietary functions of government and whether the city’s
failure to place such signs could have amounted to negligence.
II. Standard of Review
Questions of immunity are matters of law, so they are particularly apt
for resolution by way of summary judgment. FirstEnergy Corp. v. Cleveland, 179
Ohio App.3d 280, 2008-Ohio-5468, 901 N.E.2d 822, ¶ 7 (8th Dist.). We review a
trial court’s decision on a motion for summary judgment de novo. Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). In a de novo review, this
court affords no deference to the trial court’s decision and we independently review
the record to determine whether the grant of summary judgment is appropriate.
Hollins v. Shaffer, 182 Ohio App.3d 282, 2009-Ohio-2136, 912 N.E.2d 637, ¶ 12 (8th
Dist.).
Summary judgment is appropriate when, construing the evidence
most strongly in favor of the nonmoving party, (1) there is no genuine issue of
material fact; (2) the moving party is entitled to judgment as a matter of law; and
(3) reasonable minds can only reach a conclusion that is adverse to the nonmoving
party. Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201(1998).
The party moving for summary judgment bears the burden of
demonstrating that no material issues of fact exist for trial. Dresher v. Burt, 75 Ohio
St.3d 280, 292-293, 662 N.E.2d 264 (1996). The moving party has the initial
responsibility 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 elements of the nonmoving party’s claims. Id. After
the moving party has satisfied this initial burden, the nonmoving party has a
reciprocal duty to set forth specific facts by the means listed in Civ.R. 56(C) showing
that there is a genuine issue of material fact. Id.III. Political Subdivision Immunity
Determining whether a political subdivision is immune from tort
liability involves a three-step analysis. Elston v. Howland Local Schools, 113 Ohio
St.3d 314, 2007-Ohio-2070, 865 N.E.2d 845, ¶ 10. First, R.C. 2744.02(A)(1) sets
forth the general blanket immunity applicable to political subdivisions. It provides
that a political subdivision is generally not liable in a civil action for injury, death, or
loss to person or property incurred while performing governmental or proprietary
functions. The next step places the burden on the plaintiff to overcome this statutory
immunity by showing that one of the five exceptions contained in R.C. 2744.02(B)
applies. If a plaintiff demonstrates that one of the five enumerated exceptions to
political subdivision immunity applies, then the final step permits the political
subdivision to then assert one of the defenses set forth in R.C. 2744.03(A) to revive
or reinstate its immunity.
A. General Immunity — R.C. 2744.02(A)(1)
In this case, there is no dispute that the city is a political subdivision
and that it was performing a governmental function. See R.C. 2744.01(C)(2)(e) (the
regulation of the use of, and the maintenance and repair of, roads, highways, and
streets is a governmental function). It is well-settled in Ohio that a municipal
corporation is not an insurer of the safety of its streets. Deckant v. Cleveland, 155
Ohio St. 498, 502, 99 N.E.2d 609 (1951); Gibbs v. Girard, 88 Ohio St. 34, 102 N.E.
299 (1913), paragraph one of the syllabus. As such, a political subdivision is
generally immune from tort liability in its maintenance and repair of public
roadways unless one of the five exceptions contained in R.C. 2744.02(B) applies.
B. Exception to Immunity — R.C 2744.02(B)(3)
Pertinent to this appeal, the Powells contend that the relevant
immunity exception is that the city is “liable for injury, death, or loss to person or
property caused by their negligent failure to keep public roads in repair and other
negligent failure to remove obstructions from public roads.” R.C. 2744.02(B)(3).
This court has concluded that the terms “in repair” and “obstruction”
exist separately in R.C. 2744.02(B)(3) and provide two independent bases for
overcoming general immunity. Leslie v. Cleveland, 2015-Ohio-1833, 37 N.E.3d 745,
¶ 11 (8th Dist.), citing Todd v. Cleveland, 8th Dist. Cuyahoga No. 98333, 2013-Ohio-
101, ¶ 13-14, citing Bonace v. Springfield Twp., 179 Ohio App.3d 736, 2008-Ohio-
6364, 903 N.E.2d 683, ¶ 29 (7th Dist.).
This court has noted that R.C. Chapter 2744 fails to define the phrase
“in repair.” Leslie at ¶ 14. This court has found, however, that “in repair” has been
interpreted to include maintaining a road’s condition after construction or
reconstruction, including fixing holes or crumbling pavement. Todd at ¶ 15, citing
Crabtree v. Cook, 196 Ohio App.3d 546, 2011-Ohio-5612, 964 N.E.2d 473, ¶ 27 (10th
Dist.), citing Bonace at ¶ 29; see also Heckert v. Patrick, 15 Ohio St.3d 402, 406, 473
N.E.2d 1204 (1984) (interpreting a statute containing similar language that “in
proper repair” concerns deterioration or disassembly of county roads and bridges).
As such, this court has held that political subdivisions have a duty to repair roads
that have deteriorated into a potentially hazardous condition. Leslie at ¶ 14.
Regarding the other basis for overcoming a city’s general immunity,
the term “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.” Howard v. Miami Twp. Fire Div., 119 Ohio St.3d
1, 2008-Ohio-2792, 891 N.E.2d 311, ¶ 30.
Accordingly, the city is immune from tort liability in this case unless
the evidence creates a genuine issue of material fact that (1) the roadway
deteriorated into a potentially hazardous condition or that the roadway contained
an obstruction; and (2) if the roadway contained such conditions, whether the city
acted negligently in failing to repair or remove those conditions.
1. Keep Public Roads in Repair
In their first assignment of error, the Powells contend that the trial
court erred in granting summary judgment “when it ignored the facts in the record
that raised an issue of material fact as to whether the road was in disrepair.”
The city moved for summary judgment contending that no genuine
issue of material fact exists to establish that the city negligently failed to keep the
roadway in repair. Specifically, the city maintained that neither the dip in the
roadway nor the existence of the steel plate were hazardous conditions as a matter
of law because the roadway was not deteriorating or crumbling and it did not contain
any potholes.
The Powells opposed the city’s motion, contending that a genuine
issue of material fact exists regarding whether the roadway was in a state of disrepair
due to the presence of a dip in the roadway and because the steel plate in the roadway
was not tapered.3
Regarding the dip in the roadway, the Powells have not satisfied their
reciprocal burden of providing evidence that the presence of the dip rendered the
roadway in disrepair. The Powells opposed the city’s summary judgment
contending that the dip in the roadway was significant enough that it could cause
Maurio to lose control of his motorcycle and/or be unable to avoid clipping the
raised steel plate.
In support, the Powells rely on the report and deposition testimony
of their accident reconstructionist, Tony J. Myers. He characterized the dip as a
“depression,” and stated that it existed in the crosswalk of East 30th Street. Myers
3 The Powells assert for the first time in their appellate reply brief that the ongoing
and unfinished roadway repair performed by the city employees render the roadway in a
state of disrepair because the excavation of the road constituted “disassembling” and
“fixing holes.” The Powells did not make this argument before the trial court. In fact, the
Powells never alleged in their complaint that the excavation area under the steel plate
rendered the roadway in disrepair. Moreover, the Powells never alleged that the presence
of the steel plate itself made the roadway in disrepair. Rather, the Powells’ expert only
opined that the city violated a standard of care because it did not taper the edges of the
steel plate, did not add a skid resistant surface to the plate, and did not use advance
warning signs regarding the presence of the plate.
opined that the depression in the roadway contributed to Maurio’s accident — “the
combination of the depression in the roadway, the rider’s efforts to avoid the steel
plate on the roadway and the aftermarket larger wheel installed on the Honda all
contributed to the loss of control of the motorcycle.” See Myers affidavit and report.
He supported his opinion by stating that although the depression was not visible
prior to navigating over it, it was significant enough that it resulted in the loading
and unloading of the suspensions of vehicles traveling over it, and he could feel the
dip as he drove his vehicle over it. (Deposition Tr. 44-46.) He admitted, however,
that his vehicle was not damaged as a result of driving over the depression and that
he did not observe any vehicles having difficulty navigating over the depression in
the roadway. (Tr. 46).
The Powells also support their argument with Maurio’s deposition
testimony in which he also testified that he did not see the dip in the crosswalk of
the roadway. He testified, however, that the dip itself was not significant enough for
him to lose control on his motorcycle — “I wouldn’t say that I lost control of the bike.
I would say in conjunction with the plate being in the road, two imperfections at
once definitely contributed to it.” (Tr. 56); see also tr. 114 (denying losing control of
the motorcycle as a result of the dip before reaching the steel plate). He further
admitted that he still had control of his motorcycle, stating that if the plate had not
been in the road, he could have been able to navigate through the intersection.
(Tr. 115.)
Even if Maurio’s encounter with the depression in the roadway
contributed to him losing control of his motorcycle, this fact does not create a
genuine issue of material fact that the presence of the depression rendered the
roadway in a state of disrepair or that the roadway was deteriorating to create a
potentially hazardous condition.
Both Myers and Maurio testified that the depression existed in the
crosswalk of the roadway.4 Myers testified that he did not know how the depression
was formed or how long it had been there. Additionally, he admitted that he did not
take any measurements of the depression. Similarly, Maurio testified at deposition
that he was unsure of the depth of the dip in the crosswalk, but stated that it was not
a result of the construction being done on the roadway. Accordingly, the Powells
presented no evidence as to the depression’s size, creation, or duration for this court
to conclude that a genuine issue of material fact exists that the depression was a
potentially hazardous condition or that the road was in disrepair as a result of the
depression. Compare Lakota v. Ashtabula, 11th Dist. Ashtabula No. 2015-A-0010,
2015-Ohio-3413 (testimony and evidence presented that the exposed depression in
4 Although not raised by the city, we note that courts have developed the “two-inch
rule” when addressing elevation changes in sidewalks or walkways, including a crosswalk
in a public street. See Nadrowski v. Cleveland, 8th Dist. Cuyahoga No. 111139, 2022-
Ohio-3232, ¶ 16. This rule establishes a presumption that municipalities have no duty to
repair a defect in a public walkway measuring two inches or less in height unless attendant
circumstances exist making it reasonably foreseeable that the defect will cause injury.
Mansfield v. Defiance, 3d Dist. Defiance No. 4-12-20, 2013-Ohio-1391 (reviewing
whether a raised defect in a crosswalk was substantial). The rule provides that defects
two inches or less are “insubstantial as a matter of law” and thus not actionable.
Nadrowski at ¶ 16, citing Stockhauser v. Archdiocese of Cincinnati, 97 Ohio App.3d 29,
33, 646 N.E.2d 198 (2d Dist.1994).
the roadway was six- to eight-inches deep and backfilled with loose gravel; thus,
issue of fact existed whether the roadway was “in repair”).
Additionally, the Powells have not presented any testimony or
evidence that other motorists had been unable to safely travel over the depression.
Rather, the city supported its motion with an affidavit from Shelton Coleman,
assistant commissioner for the city of Cleveland Division of Streets, who confirmed
that no complaints regarding chuckholes, depressions, or dangerous conditions at
the intersection of East 30th Street and Central Avenue were logged from January
14, 2014 through November 1, 2016. Additionally, Coleman averred that no records
were found regarding any excavation, resurfacing or major road repair at that
intersection from September 15, 2015 to September 25, 2016.
Accordingly, the Powells have failed to satisfy its reciprocal burden of
demonstrating the existence of a genuine issue of material fact that the depression
in the crosswalk rendered the roadway in a state of disrepair.
Regarding the steel plate, the Powells have not presented any
argument that the placement or use of the steel plate, itself, over the excavation site
created a hazardous or dangerous condition. Instead, the Powells contend that the
city’s failure to taper the edges of the steel plate rendered the roadway in disrepair.
In support, the Powells rely on the affidavit and expert report from Thomas M.
Lyden, a civil engineer and forensic expert with Robson Forensic, Inc., who opined
that the city violated standards of care in its placement and maintenance of the steel
plate. Specifically, he opined that the city workers failed to (1) taper the edges of the
steel plate to create a transition between the roadway elevation and the road plate
elevation, (2) add a skid resistant surface on the steel road plate; and (3) place
advanced warning signs of the existence of the steel plate in the roadway. He stated
that these violations rendered the usage of the steel plate unsafe, specifically for
motorcyclists. In support, Lyden identified various standards used in Charleston,
South Carolina; Tempe, Arizona; and Montgomery County, Maryland. Lyden,
however, did not rely on any standards governing the state of Ohio, the city of
Cleveland, or Cuyahoga County; and the Powells have not provided any additional
evidence that the city failed to follow the standards of care as required by the city or
the state of Ohio.
In contrast, the city’s expert, Bonita G. Teeuwen, director of
municipal and transportation engineering with Osborn Engineering, opined that
based on her review of the “current published standards within the state of Ohio and
the city of Cleveland,” the city’s workers “performed their tasks within reasonably
accepted practice of their trade.” Teeuwen opined that the city’s placement of a steel
plate over the excavation site and decision not to taper the edges of the steel plate or
place advance warning signs of the existence of the steel plate in the roadway, were
not inconsistent “with the guidance as documented in the accepted standards of
roadway steel plate placement.”
In Ruckman v. Smith, 190 N.E.3d 707, 2022-Ohio-1813 (11th Dist.),
the court stated that whether a road was unreasonably unsafe for a motorcyclist is
not directly related to whether the road was in repair. Id. at ¶ 26-27. In Ruckman,
a motorcyclist encountered a 1.5-inch-deep milled trench in the pavement, which
experts opined made the road unreasonably unsafe for motorcyclists. The court
stated that “[t]he threshold question is not a question of safety. Instead, it is a
question of whether the road was ‘in repair.’” Id. at ¶ 27.
We are mindful that the General Assembly has provided exceptions to
immunity for roads “in repair” and obstructions in public roads while
excluding an exception to immunity for nuisance conditions. If the
Legislature intended for exceptions to immunity to include a road that
is hazard free, without blemish, reasonably safe, or some other similar
term, it would have spoken. In short, unreasonably unsafe, or other
similar concepts are not the basis for an exception to immunity.
Id. at ¶ 28. As the Eleventh District noted, “to claim that a road is unsafe for
motorcyclists is not the same as providing evidence that the road was not in good or
sound condition.” Id. at ¶ 33. The same holds true in the case before this court.
Lyden’s report focused on the “dangerous conditions” that “have long been
recognized as a hazard to motorcycles.” His expert report does not opine that the
roadway itself was in a state of disrepair.
Accordingly, the Powells have failed to withstand their reciprocal
burden of demonstrating a genuine issue of material fact that the city’s failure to
taper the edges of the steel plate violated any standard that the city was obligated to
follow as required by the state of Ohio, Cuyahoga County, or city of Cleveland.
Moreover, even if Lyden’s report established that the city failed to
follow applicable industry standards, his report does not create a genuine issue of
material fact as to whether the condition of the steel plate rendered the roadway in
a state of disrepair. Lyden opined that the steel plate did not have tapered edges to
create a smoother transition from roadway to the steel plate. However, the Powells’
accident reconstruction expert opined during deposition that Maurio’s motorcycle
did not come into contact with the steel plate at all, affirmatively “rejecting” Powell’s
own testimony in which he speculated that he came into contact with the plate.
Compare Myers deposition p. 28-29 with Maurio’s deposition p. 53-54 (“when I
leaned to shift around the plate, that’s when the dip came in; the tires I’m assuming
caught the plate and caused me to overcompensate into the concrete.”) In fact, it
was Myers’s opinion that Maurio’s attempt to avoid the steel plate contributed to
him losing control of his motorcycle.
Lyden further opined that the city’s failure to add a skid resistant
surface to the steel plate violated a standard of care. However, it is undisputed that
the weather conditions were not adverse and Maurio did not drive over the steel
plate, thus creating a need for a skid resistant surface.
Finally, Lyden’s opinion that the failure to place advance warning
signs of the steel plate violated a standard of care is immaterial because Maurio
admitted that he saw the steel plate in the roadway after he turned onto East 30th
Street; thus, making the advance decision to maneuver around the steel plate. See
Penn v. Regional Transit Auth., 8th Dist. Cuyahoga No. 109660, 2021-Ohio-2102,
¶ 27 (no duty to give advanced warning of an open-and-obvious condition).
Accordingly, Lyden’s report does not create a genuine issue of
material fact regarding whether the roadway was in a state of disrepair due to the
presence or condition of the steel plate in the roadway.
The Powells rely heavily on this court’s decision in Todd to support its
contention that the placement of the steel plate and the presence of the dip in the
roadway created a hazardous condition. Todd, 8th Dist. Cuyahoga No. 98333, 2013-
Ohio-101. In Todd, the plaintiff damaged her vehicle after encountering numerous
potholes in a roadway that was near a city impound lot. Todd is readily
distinguishable because the alleged hazardous conditions in the roadway were
potholes, and it is well-established that a pothole in the roadway may qualify as a
hazardous condition. Id. at ¶ 15, citing Crabtree, 196 Ohio App.3d 546, 2011-Ohio-
5612, 964 N.E.2d 473, at ¶ 27, citing Bonace, 179 Ohio App.3d 736, 2008-Ohio-
6364, 903 N.E.2d 683, at ¶ 29; see also Gomez v. Cleveland, 8th Dist. Cuyahoga
No. 97179, 2012-Ohio-1642, ¶ 9 (potholes in roadways are potentially hazardous
conditions). Accordingly, the issue in Todd of whether the road was in a state of
disrepair was not at issue. Rather, the salient issue in Todd was whether the city had
notice of the existence of the potholes in the city street due to its proximity to a city
impound lot. Todd at ¶ 18.
In this case the roadway did not contain any potholes and no one
characterized the dip or depression in the roadway as a pothole or that the roadway
was deteriorating or crumbling. In fact, during deposition Maurio stated that both
the steel plate and depression were “imperfections.” And unlike in Todd, no
testimony was presented that motorists had to swerve to avoid the depression, or
that cars were damaged as a result of directly driving over the depression.
Accordingly, reliance on Todd does not support the Powells’ argument on appeal.
The Powells’ reliance on Lakota, 11th Dist. Ashtabula No. 2015-A-
0010, 2015-Ohio-3413, is also inapposite. In Lakota, the Eleventh District,
determined that the city was not entitled to summary judgment based on immunity
in a motorcyclist’s negligence action because there was a factual issue whether the
road, which had pending and ongoing repairs, constituted a road “in repair.” The
city was in the process of repairing the sinkhole and excavated area, but the gravel
used to fill the sinkhole had created a six- to eight-inch exposed depression in a
public road. The motorcyclist encountered the depression, and when he attempted
to swerve around it, his front tire caught the edge, causing it to blow out. The rider
crashed his motorcycle and suffered injuries as a result. Based on testimony that a
six- to eight-inch hole does not constitute a road “in good repair,” the court held that
“a repair that causes an additional danger to drivers cannot create a road that is ‘in
repair.’” Id at ¶ 30.
Here, the Powells presented no evidence that the depression in the
roadway was caused by the city workers repairing the water break that occurred
beneath the roadway. Maurio admitted at deposition that the dip in the roadway
was not a result of the construction being done in the roadway. (Tr. 56.) And the
city presented undisputed evidence that it had not done any excavation, resurfacing,
or major road repair at that intersection from September 15, 2015 to September 25,
2016. Accordingly, Lakota is factually distinguishable.
In so far as the Powells rely on Lakota to support their argument that
the roadway was not in a state of repair because of the ongoing repair of the water-
line break, we find the reliance misplaced. Lakota involved an exposed, gravel-
filled, six- to eight-inch depressed excavation area in the roadway that city workers
created. In this case, the excavation site was not exposed and was temporarily
covered by a one-inch steel plate. The Powells have not made any allegation that the
excavation and repair work under the steel plate created a dangerous or hazardous
condition.
“A municipality, as a matter of law, cannot be held responsible as to
every depression, difference in grade or unevenness in its streets and sidewalks.”
Walker v. Parma, 8th Dist. Cuyahoga No. 60540, 1991 Ohio App. LEXIS 2573, 9
(May 30, 1991), citing Deckant, 155 Ohio St. 498, 99 N.E.2d 609. In Kimball v.
Cincinnati, 160 Ohio St. 370, 116 N.E.2d 708 (1953), the Ohio Supreme Court
reiterating its Deckant holding, and agreeing with the New York High court, quoted:
“We think we may take judicial notice of the fact which ordinary
observation discloses that there is scarcely a rod in the streets of any
city in which there may not be discovered some little unevenness or
irregularity in sidewalks, crosswalks, curbs, or pavements. As the
result of various causes, climatic and otherwise, they are constantly
occurring and recurring. Ordinarily they cause no difficulties, and it
would require a vast expenditure of money to remove them all.”
Id. at 373-374, quoting Gastel v. New York, 194 NY 15, 86 N.E. 833 (1909). We
agree. Natural wear and tear, and road dips or depressions are conditions that
motorists encounter in the normal and everyday travel of streets in and around the
city. And without some evidence that the depression that Maurio encountered was
beyond these normal conditions, or that the city’s usage of the steel plate, itself,
caused an additional hazard, this court cannot find a genuine issue of material fact
that an exception exists to abrogate the city’s general immunity.
Accordingly, the Powells have failed to satisfy their reciprocal burden
of presenting evidence to establish a genuine issue of material fact regarding
whether the roadway was in a state of disrepair to trigger the immunity exception
found in R.C. 2744.02(B)(3).
2. Obstruction
In its second assignment of error, the Powells contend that the trial
court erred in granting summary judgment in favor of the city “when it held that a
metal plate could not be an obstruction as a matter of law.” As part of their argument
within this assignment of error, the Powells additionally assert that the presence of
the dip in the roadway constitutes an obstruction or “the combination of the two
factors, the dip in the road and the steel plate, combined to create a set of
circumstances where an obstruction occurred.”
The city argued in support of summary judgment that neither the
steel plate nor the dip in the roadway are obstructions under the meaning of R.C.
2744.02(B)(3). Specifically, the city relied on Howard, 119 Ohio St.3d 1, 2008-
Ohio-2792, 891 N.E.2d 311. In Howard, a 16-year-old boy died when he lost control
of his vehicle when it hit “black ice” that had formed on the roadway after the fire
department had performed various water-related training exercises in the area. Id.
at ¶ 3-14. The appeals court found that the “icy mixture” on the road was an
“obstruction” that the city had a duty to remove because it was an “object that has
the potential of interfering with the safe passage of motorists.” Id. The Supreme
Court rejected this overly broad definition, relying on the legislative history of R.C.
2744.02(B)(3), which is also relevant to our review of this case.
In 2003, the General Assembly amended R.C. 2744.02(B)(3) by
removing the terms “free from nuisance” and adding “remove obstructions” from
the description of the type of roadway condition that would defeat political
subdivision immunity. The Howard Court concluded that “the General Assembly
purposely replaced the phrase ‘free from nuisance’ with ‘other negligent failure to
remove obstructions,’” and that “the legislature’s action in amending R.C.
2744.02(B)(3) was not whimsy but a deliberate effort to limit political subdivisions’
liability for injuries and deaths on their roadways.” Id. at ¶ 25-26. The court
concluded that, for purposes of R.C. 2744.02(B)(3), an “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.” Id. at ¶ 30.
Relying on the Howard framework, the city contends that neither the
steel plate or dip in the roadway, or the two in combination, are “obstructions”
because the record contains no evidence to create a question of fact that the steel
plate or the dip completely blocked or clogged traffic on East 30th Street or Central
Avenue.
The Powells opposed summary judgment, contending that a genuine
issue of material facts exists whether the steel plate or dip in the roadway constituted
an obstruction. In support, the Powells relied on Crabtree, 2011-Ohio-5612, 964
N.E.2d 433. In Crabtree, the Tenth District concluded that the “obstruction”
definition created in Howard, 119 Ohio St.3d 1, 2008-Ohio-2792, 891 N.E.2d 311,
did not just encompass immovable objects. Crabtree at ¶ 26. The court determined
that the presence of heavy brush, damp and muddy areas, and the existence of
potholes on the side of the road, that forced the plaintiff-bicyclist to ride further from
the curb, might very well create an obstacle for bicyclists, thus creating a genuine
issue of material fact. Id. at ¶ 26, 29.
We do not find Crabtree persuasive in this situation because it is
factually distinguishable. Most importantly, the plaintiff in Crabtree was a bicyclist.
Unlike the Crabtree plaintiff, Maurio was operating a motorcycle with full access to
the entire lane of travel. Additionally, Maurio did not encounter the presence of any
potholes, muddy or damp road conditions, or objects that visually impaired or
intentionally forced Maurio out of his lane of traffic.
We find that the Powells have not presented any evidence to create a
genuine issue of material fact that the dip in the roadway, the steel plate, or a
combination of the two, were obstructions as contemplated in R.C. 2744.02.
Regarding the depression in the roadway, the Powells’ accident
reconstruction expert testified at deposition that the flow of traffic was not impeded
by the depression in the crosswalk and that the depression did not block cars from
traveling on East 3oth Street. (Myers Deposition Tr. 44-45.) Regarding the steel
plate, no one opined that the use of the steel plate to cover an excavation site is, by
its very nature, an obstruction. In fact, Maurio testified that the presence of the steel
plate was not unusual and he had seen steel plates in roadways “a thousand times.”
(Deposition, Tr. 113.) He further admitted that he had never been instructed to
avoid or not ride over a steel plate. Id. Additionally, the Powells’ accident
reconstructionist opined that based on his assessment of the accident, Maurio did
not even come into contact with the steel plate — the alleged obstruction.
The Powells have not presented any evidence or supporting case law
that the temporary placement of the steel plate or other safety protections over
excavated areas are the types of obstructions contemplated by the General Assembly
to impose liability on a political subdivision. Accordingly, the Powells have failed to
satisfy their reciprocal burden of presenting evidence to establish a genuine issue of
material fact regarding whether the steel plate or dip were obstructions to remove
immunity from the city under this exception. The second assignment of error is
overruled.
Because we find that no exception applies to the city’s general
immunity in R.C. 2744.02(A)(1), the trial court did not err in granting summary
judgment in favor of the city.
IV. Negligent Failure to Warn of Dangerous Hazardous Conditions
In their third assignment of error, the Powells contend that the trial
court erred in failing to consider whether the failure to place signs warning of the
dip or the plate were proprietary functions of government and whether the city’s
failure to place such signs could have amounted to negligence. Within this
assignment of error, the Powells raise two separate issues — (1) whether the failure
to place signs warning of the dip or the plate were proprietary functions of
government; and (2) whether the city’s failure to place such signs could have
amounted to negligence.
Regarding the first issue, the Powells did not make any argument with
the trial court that the city’s failure to place warning signs of the dip in the roadway
or the steel plate were proprietary functions. It is well settled that arguments raised
for the first time on appeal will not be considered by an appellate court. Gardi v.
Bd. of Edn., 8th Dist. Cuyahoga No. 99414, 2013-Ohio-3436, ¶ 27, citing State ex rel.
Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 81, 679 N.E.2d 706 (1997).
Motions for summary judgment are no different: “although we review summary
judgment decisions de novo, ‘the parties are not given a second chance to raise
arguments that they should have raised below.’” Hamper v. Suburban Umpires
Assn., 8th Dist. Cuyahoga No. 92505, 2009 Ohio 5376, ¶ 27, quoting Perlmutter v.
People’s Jewelry Co., 6th Dist. Lucas No. L-04-1271, 2005-Ohio-5031.
Although the Powells generally argued in the trial court that the city
was negligent in failing to warn of the alleged hazardous conditions, the Powells did
not assert any argument that this failure was a proprietary function of the city, or
assert in the trial court that the exception found in R.C. 2744.02(B)(2) abrogates the
city’s general immunity. Accordingly, this argument will not be addressed in this
appeal.
As to the second issue regarding the trial court’s failure to determine
whether the failure to place warning signs of hazardous conditions could have
amounted to negligence, we find that the trial court did not err. This court has
already determined that neither the steel plate nor the dip in the roadway were
obstructions or potentially hazardous conditions to render the roadway in disrepair.
The exception found in R.C. 2744.02(B)(3) only removes immunity under two
instances — (1) negligent failure to keeps roads in repair; and (2) negligent failure to
remove obstructions. Neither of these exceptions involve a negligent failure to warn
of conditions that are not considered hazardous conditions or obstructions.
Accordingly, a failure to warn of conditions that are outside the scope of
R.C. 2744.02(B)(3) cannot abrogate a city’s immunity. See Ruckman, 190 N.E.3d
707, 2022-Ohio-1813 (a discretionary sign is not statutorily part of the roadway; the
use of incorrect discretionary signage does not constitute an exception to immunity
under R.C. 2744.02(B)(3)).
Having previously determined that the steel plate and the dip in the
roadway were not hazardous conditions or obstructions, this court does not need to
determine whether the city was negligent. Nevertheless, we note that the city’s
decision to not place a sign warning a motorist of a steel plate in the roadway cannot
be deemed negligent when Powell admitted that he saw the metal plate in the road
upon approaching the intersection of East 30th Street and Central Avenue.
Accordingly, by Powell’s own admission, the steel plate was not latent but rather an
open-and-obvious condition, and there is no duty to warn regarding an open-and-
obvious condition. Penn, 8th Dist. Cuyahoga No. 109660, 2021-Ohio-2102, at ¶ 27,
citing Armstrong v. Best Buy Co. Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788
N.E.2d 1088.
The Powell’s third assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
KATHLEEN ANN KEOUGH, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR