Sharp v. Shaker Hts. , 2021 Ohio 4132 ( 2021 )


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  • [Cite as Sharp v. Shaker Hts., 
    2021-Ohio-4132
    .]
    COURT OF APPEALS OF OHIO
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    NANCY B. SHARP,                                   :
    Plaintiff-Appellant,              :
    No. 110260
    v.                                :
    CITY OF SHAKER HEIGHTS,                           :
    Defendant-Appellee.               :
    JOURNAL ENTRY AND OPINION
    JUDGMENT: AFFIRMED
    RELEASED AND JOURNALIZED: November 18, 2021
    Civil Appeal from the Cuyahoga County Court of Common Pleas
    Case No. CV-20-929576
    Appearances:
    Joseph T. McGinness and Timothy W. Sauvain, for
    appellant.
    Mazanec, Raskin & Ryder Co., L.P.A., James A. Climer
    and Frank H. Scialdone, for appellee.
    LISA B. FORBES, J.:
    Nancy B. Sharp (“Sharp”) appeals from the trial court’s journal entry
    granting summary judgment to the city of Shaker Heights (“Shaker”) in this
    negligence case. After reviewing the facts of the case and pertinent law, we affirm
    the lower court’s judgment.
    On May 18, 2016, Sharp was walking on a public sidewalk in Shaker
    when she tripped and fell over a piece of metal that was protruding from the concrete
    (the “Sign Stub”). The Sign Stub was approximately three inches high and located
    in the middle of the sidewalk. Sharp was injured as a result of this fall. On February
    18, 2020, Sharp filed a complaint against Shaker alleging that Shaker “negligently
    left this piece of metal protruding up from the sidewalk when it cut down a metal
    sign post that was at one time on the public sidewalk.” On January 6, 2021, the court
    granted summary judgment in favor of Shaker, finding that Shaker “owed no duty
    to” Sharp, because “there is no evidence that [Shaker] removed the handicap
    parking sign * * *.”
    It is from this order that Sharp appeals.
    I.   Law
    A. Summary Judgment
    Appellate review of an order granting summary judgment is de novo.
    Pursuant to Civ.R. 56(C), the party seeking summary judgment must prove that (1)
    there is no genuine issue of material fact; (2) they are entitled to judgment as a
    matter of law; and (3) reasonable minds can come to but one conclusion and that
    conclusion is adverse to the nonmoving party. Dresher v. Burt, 
    75 Ohio St.3d 280
    ,
    
    662 N.E.2d 264
     (1996).
    B. Negligence
    “It is rudimentary that in order to establish actionable negligence, one
    must show the existence of a duty, a breach of the duty, and an injury resulting
    proximately therefrom.” Menifee v. Ohio Welding Prods., Inc., 
    15 Ohio St.3d 75
    , 77,
    
    472 N.E.2d 707
     (1984).
    Pursuant to R.C. 723.01, municipalities “shall have the care,
    supervision, and control of the * * * sidewalks * * * within the” municipality. The
    Ohio Supreme Court has held that
    [t]he duty imposed upon municipalities by the provisions of
    [R.C. 723.01] is the exercise of ordinary care to keep its * * * sidewalks
    * * * in repair and free from nuisance. Liability for damages for failure
    to perform such duty cannot arise except upon proof either that its
    agents or officers actually created the faulty condition from which
    injury resulted or that it had notice thereof, actual or constructive.
    Cleveland v. Amato, 
    123 Ohio St. 575
    , 
    176 N.E. 227
     (1931), syllabus.
    To impute constructive notice to a city of a nuisance for which it is liable
    under the provisions of Section 723.01, Revised Code, it must appear
    that such nuisance existed in such a manner 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 or an invasion
    of private rights.
    Beebe v. Toledo, 168 Ohio St.203, 206-207, 
    151 N.E.2d 738
     (1958).
    II. Deposition Testimony
    Against the backdrop of this legal framework, we consider the
    evidence presented in the case at hand.
    A. Nancy Sharp
    Sharp testified that her fall occurred at 6:15 p.m. on a “sunny, clear”
    day on the sidewalk in front of 16822 Chagrin Boulevard in Shaker. She walks on
    this sidewalk approximately once a month to go to a liquor store.
    During her deposition, Sharp was shown the pictures she took of the
    Sign Stub and asked, “And these are good pictures, you can see the stub pretty
    clearly. Would that be fair?” Sharp answered, “Yes.” According to Sharp, when she
    fell, she had a bottle of alcohol in her left arm, her purse over her right shoulder, and
    her car keys in her right hand. She was wearing comfortable shoes, and she was not
    in a rush. According to Sharp, she did not see the Sign Stub prior to her fall because
    the “[s]un was at my back. * * * Could have been a shadow. * * * Cars park and
    hover over the curb. Either case, I did not see it.”
    Sharp was not aware of “any other accidents that have taken place as
    a result of the [Sign Stub].” Furthermore, she was not aware of “anybody aside from
    perhaps” Shaker who would have information about the Sign Stub. Asked about
    what Shaker knew about the Sign Stub, Sharp testified as follows: “Somebody
    removed a sign, my assumption would be the city, since it was on the city property
    and did not complete the task. So I’m sure somebody was aware.” Asked about
    “knowledge” as opposed to “your presumption or your conclusions,” Sharp replied,
    “I have nothing official, but it is on city property.” Asked about anything “unofficial,”
    Sharp answered, “No.” Sharp had no information about who installed the sign, she
    had no information about who broke or removed the sign, leaving the Sign Stub, and
    she had no information about how long the Sign Stub was there prior to her accident.
    B. Charles Orlowski
    Charles Orlowski testified that he is a “forester and utility
    coordinator” for Shaker. Part of his job is to “maintain the trees in the tree lawn
    area, parks and City properties throughout the city.” Another part of his job entails
    issuing “right-of-way permits” for street repairs in Shaker. Orlowski has nothing to
    do with parking signs for Shaker. Orlowski testified that he never saw the Sign Stub
    although he saw “the remnants where the stub was cut off” subsequent to Sharp’s
    fall. He further testified that the sidewalk pavement around the “remnants” was flat
    and there did not appear to be any obstacles in the area that someone might trip
    over.
    Orlowski testified that, according to an undated photograph from
    Google Earth depicting the sidewalk area in front of a store located at 16822 Chagrin
    Boulevard, a handicap parking sign was located there at some point. According to
    Orlowski, Shaker did not install this sign, Shaker does not know who installed the
    sign, and Shaker does not know who removed the sign. To make this determination,
    Orlowski reviewed Shaker’s purchase orders dating back to 2009 or 2010. Shaker
    completed a “project” in that area in 2009-2010, and the “descriptions of the
    streetscapes and the details that we did there, [I] did not see the signpost in that
    detail.” Orlowski also testified that Shaker “could not find any record of any issues,
    callouts for a broken sign, anything in regard to the sign being removed from that
    piece of property.”
    According to Orlowski, Shaker’s signs are handled by the police
    department.    Orlowski checked with Mike Rowe, who is the Shaker Police
    Commander, and “he has no record of that sign.” There is a record from the police
    department of Sharp’s fall and another record of the Sign Stub being removed on
    November 2, 2016, subsequent to Sharp’s fall.
    C. Michael Rowe
    Michael Rowe (“Com. Rowe”) testified that he is the Shaker Heights
    Police Commander in charge of the Uniform Division, the Traffic Safety Unit, and
    the Signal Service Unit. According to Com. Rowe, “all the traffic lights and signage
    throughout the city” fall under his control of the Traffic Safety Unit. Com. Rowe
    testified that “[t]here’s a combination of people who put up signs in” Shaker. “For
    example, if a stop sign gets knocked down today, my employee will put the sign back
    up.” If any Shaker police officer saw a “damaged or down or bent out of shape” sign,
    it would be their duty to notify Com. Rowe’s department, who would replace the
    sign. Additionally, his department would replace a broken or missing sign “[i]f we
    found it or were alerted to it” by someone else.
    Com. Rowe testified that he never saw the Sign Stub, and he does not
    know when the sign that was in front of 16822 Chagrin Boulevard was installed.
    Asked who would have firsthand knowledge about the handicap sign while it was
    still standing, Com. Rowe replied, “I would imagine the contractor that put it up,
    that’s who would have firsthand knowledge.” Asked if “it’s your testimony that you
    don’t know how it was taken down,” Com. Rowe replied, “That’s correct.” The
    following colloquy occurred about who may have removed the sign at issue in the
    instant case:
    Q: Ordinarily people don’t remove city signs, do they?
    A: Sure, they do.
    ***
    Q: And then it’s your duty to find out what’s missing and put it back up
    again?
    A: Sure. Either we find it or we’re alerted to it, we take care of it, yeah.
    Com. Rowe testified as follows: “I have searched before and after the
    date [of Sharp’s fall] and found no record of anyone reporting that there was any
    damage — damage or injury to anybody associated with the handicap sign,” other
    than Sharp’s accident report, which she filed with the Shaker Police Department on
    June 1, 2016.
    Com. Rowe testified that if there is a “business district” that is being
    redeveloped, “a contractor typically handles not only the repavement, the roadwork
    but also the signage and even traffic signals sometimes.”           The Shaker Police
    Department does not supervise the contractor nor does the department look at the
    work after it is done. According to Com. Rowe, there “was a streetscape project
    many years ago” in the area of Sharp’s fall, “and if there were plans for signage, that
    would be on those plans, if it’s consistent with the plans that I see regularly now.”
    D. William Gruber
    William Gruber (“Gruber”) testified that he is the Law Director for
    Shaker. Gruber was not aware of any claims involving the Sign Stub or a person
    being injured at 16822 Chagrin Boulevard prior to Sharp’s fall. Gruber testified that
    Shaker did not have “any record of anyone notifying” him that the Sign Stub existed
    prior to Sharp’s fall. Gruber further testified that information involving the Sign
    Stub may come to his attention or it may come to the attention of “the human
    resources department, * * * the mayor’s office, * * * the CAO or council member,
    public works department, police department.”
    Gruber received a letter about Sharp’s claim, and he did what he does
    with “any other letter like that,” which is to “send that to the public works
    department because they oversee the right of way generally; and to the HR
    department because it was a claim.” Gruber also testified that Shaker “has general
    responsibility with anything that’s in the public right of way in general.” He
    identified from pictures shown to him at his deposition “the narrow area between
    the planter and curb [as a] public right of way” and testified that these pictures
    “could * * * very well be the south side of Chagrin commercial area” where Sharp
    fell. In these pictures, Gruber identified a “little black mark” and took Sharp’s
    counsel’s “word for it” that the mark was the Sign Stub. Gruber also identified a
    Google Earth picture of the same public way taken prior to Sharp’s fall. In this
    picture, Gruber noticed something that was “pretty blurry” and testified as follows
    about it: “I know what handicapped accessible parking signs look like and from far
    away it could look like that.”
    Asked who installed this sign, Gruber answered,
    I can’t say in this particular situation because I don’t know for certain.
    ***
    But it could have been done as part of — so we do large streetscapes and
    I’m aware that the city did a streetscape project in this vicinity at some
    point in the last 10 to 20 years. I don’t know for sure when it was, but
    at some point we did some sort of streetscape project and so it’s
    possible that the accessible signs were put up as part of that project. So
    they would have been done by the contractor for that project, or one of
    their subs.
    Otherwise, the police department puts up signs generally and/or
    contracts out to put them up. So if requested — so if there was no sign
    there and we needed a handicap accessible sign there and there is no
    street project so we don’t have a larger project going on, the police
    department would have to hire someone probably to put in a sign like
    that.
    Asked if he knew who removed that sign, Gruber answered, “No. If a
    sign was there and taken down — if [photograph 1] is the sign and if [photograph 2]
    is the stub where that sign used to be in [photograph 1], I have no idea why or how
    that occurred.”
    E. Patricia Speese
    Patricia Speese testified that she is the Public Works Director
    (“PWD”) for Shaker. The PWD oversees “all construction projects to do with
    infrastructure,” as well as “street maintenance” and “the sidewalk inspection
    program.” Asked if the PWD had “anything to do with putting up signs or removing
    signs,” Speese answered, “No.” Speese next explained that “once or twice a year,
    * * * the sign and signal department and police” will have the PWD “lift the concrete
    out of the ground” when signs are “too deep and they can’t get the signs out * * *.”
    Speese further testified that the PWD oversees “the contractor that
    does the sidewalk paving.” Speese identified a photograph of “a strip between a
    planter and the parked cars” near 16822 Chagrin Boulevard in Shaker. Speese
    testified that “we don’t consider that [a] sidewalk,” and the concrete strip is the
    “responsibility of the store owner.” Her testimony continued as follows:
    Q: This piece of concrete over here next to the curb right up where the
    cars are parked, * * * that is something that has to do with your service
    department; am I correct?
    ***
    A: No.
    Q: So you have nothing to [do] with this piece of concrete here?
    A: Correct.
    ***
    Q: Now I want to show you this little sign. Can you identify that?
    A: That looks like an ADA handicap parking sign.
    Q: Do you have anything to do with placement of those signs?
    A: No, I don’t.
    Q: And removal of those signs?
    A: No.
    ***
    Q: Now, if a sign were broken, would you have anything to do with
    that? In other words, let’s say a car ran into it or something?
    A: No.
    III. The Trial Court’s Journal Entry
    In the case at hand, the trial court based its reasoning behind granting
    summary judgment to Shaker on Sharp’s failure to establish the existence of a duty.
    “[B]efore [Sharp] can show that [Shaker] owed her a duty that it breached, [Sharp]
    must establish that [Shaker] was responsible for the removal of the handicap
    parking sign.” The trial court further found that Sharp “fails to establish that
    [Shaker] was responsible for the removal of the handicap parking sign” and that
    Sharp’s “negligence claim fails as a matter of law.”
    In her sole assignment of error, Sharp argues that the “trial court
    erred in finding that there was no evidence to establish that [Shaker] was
    responsible for the removal of the handicap parking sign and therefore it owed no
    duty to [her].” We disagree with Sharp’s argument, and, based on our review of the
    evidence, we agree with the trial court’s conclusion.
    IV. Analysis
    Sharp presented no evidence that Shaker had actual or constructive
    notice of the Sign Stub. There is no evidence in the record that Shaker installed or
    removed the sign at issue in this case. There is no evidence that Shaker was aware
    that the sign had been removed leaving the Sign Stub, and there is no evidence of
    how long the Sign Stub was there. Additionally, there is no evidence of prior injuries
    caused by the Sign Stub. The evidence indicates some possible theories about who
    may have knowledge of various parking signs, including what condition they may
    have been in, but no evidence about the sign and Sign Stub at issue in the case at
    hand.
    Sharp argues that in Com. Rowe’s deposition, he “admit[ted] that
    when his department took down the handicap sign at 16822 Chagrin, his only
    problem was that they did not have a record of removing that specific sign * * *.”
    Our review of the record shows that Sharp has taken Com. Rowe’s testimony out of
    context. Specifically, the testimony at issue is as follows:
    Q: When signs are removed, are records kept?
    ***
    A: If we close down roadways, they keep records when we change a
    roadway, which would mean the signage would be removed.
    If we took a sign down today that was no longer warranted, * * * we
    don’t document that that’s when they took down the sign.
    Q: So when you took down the sign, the handicap parking sign at 16822
    Chagrin Boulevard, it would not be indicated as to when it was
    removed, based on what you’re saying?
    A: No, it wouldn’t.
    Com. Rowe did not admit that Shaker removed the sign at issue in
    this case. In fact, as noted previously, Com. Rowe testified that he did not know how
    the sign was taken down.
    The instant case is similar to Burger v. Cleveland, 8th Dist. Cuyahoga
    No. 88193, 
    2007-Ohio-1456
    , ¶ 19, in which this court affirmed the trial court’s
    granting summary judgment to the city of Cleveland in a negligence case because
    “the evidence fail[ed] to create a genuine issue of material fact concerning the City’s
    maintenance of the sidewalk * * *.”
    Burger fell while riding his bike on the sidewalk going across a bridge.
    Id. at ¶ 8. Burger sued the city of Cleveland, alleging “that the cause of his fall was
    gravel on the sidewalk * * *.” Id. at ¶ 12. The court noted that “Burger testified that
    he did not know where the gravel came from or how it got on the sidewalk. * * *
    Burger also fail[ed] to show that the city created or had actual notice of the alleged
    nuisance, i.e., the gravel on the sidewalk.” Id. at 14-15. “Without some evidence
    indicating that gravel was present on the sidewalk for some length of time and/or
    notice of complaints or prior injuries concerning it to the City, there is no genuine
    issue of material fact as to whether the City had constructive notice of it.” Id. at ¶ 18.
    In following Burger, we find that there is no genuine issue of material
    fact in the case at hand, and Shaker is entitled to judgment as a matter of law. The
    trial court did not err by finding that Sharp failed to establish that Shaker owed her
    a duty concerning the Sign Stub, and her sole assignment of error is overruled.
    Judgment 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 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.
    LISA B. FORBES, JUDGE
    MICHELLE J. SHEEHAN, J., CONCURS;
    FRANK D. CELEBREZZE, JR., P.J., CONCURS IN JUDGMENT ONLY WITH
    SEPARATE OPINION
    FRANK D. CELEBREZZE, JR., J., CONCURRING IN JUDGMENT ONLY:
    Respectfully, I concur in judgment only. I am troubled that the public
    has no recourse when an individual is injured by a hazardous sign stub remaining in
    place after a sign was removed from a city sidewalk. However, because I am bound
    by existing law, I concur in judgment only with the majority opinion.
    

Document Info

Docket Number: 110260

Citation Numbers: 2021 Ohio 4132

Judges: Forbes

Filed Date: 11/18/2021

Precedential Status: Precedential

Modified Date: 11/22/2021