Burgess v. Johnson , 2011 Ohio 5241 ( 2011 )

[Cite as Burgess v. Johnson, 2011-Ohio-5241.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
SONJA M. BURGESS : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellant : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 11CAE050042
MARK A. JOHNSON, ET AL. :
:
Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 10-CVC-11-1671
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 10, 2011
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
GEORGE R. ORYSHKEWYCH MARSHALL W. GUERIN
5566 Pearl Road Law Offices of Craig S. Cobb - Columbus
Parma, OH 44129 2545 Farmers Drive, Suite 370
Columbus, OH 43235
Delaware County, Case No. 11CAE050042 2
Farmer, J.
{¶1} On June 3, 2009, appellant, Sonja M. Burgess, was traversing the public
sidewalk of South Franklin Street in Delaware, Ohio when she tripped over an uneven
portion of the sidewalk and fell. Appellant did not see the unevenness prior to her fall
because the gap between the two sections of concrete was overgrown with grass which
obscured the difference in the grade between the two sections. Appellant sustained
injuries as a result of the fall.
{¶2} On November 19, 2010, appellant filed a complaint against appellee, Mark
A. Johnson, the owner of the real property located at 228 South Franklin Street.
Appellant alleged negligence in maintaining the sidewalk, and sought damages for her
personal injuries.
{¶3} On January 31, 2011, appellee filed a motion for summary judgment. By
judgment entry filed April 26, 2011, the trial court granted the motion, finding appellant
did not establish any of the exceptions to the general rule that the duty to keep public
sidewalks in repair and free from nuisance rests upon a municipality and not the
abutting property owner.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶5} "THE TRIAL JUDGE ERRED, AS A MATTER OF LAW, BY GRANTING
SUMMARY JUDGMENT AGAINST PLAINTIFF-APPELLANT."
{¶6} At the outset, we note this case comes to us on the accelerated calendar
governed by App.R. 11.1, which states the following in pertinent part:
Delaware County, Case No. 11CAE050042 3
{¶7} "(E) Determination and judgment on appeal
{¶8} "The appeal will be determined as provided by App. R. 11.1. It shall be
sufficient compliance with App. R. 12(A) for the statement of the reason for the court's
decision as to each error to be in brief and conclusionary form.
{¶9} "The decision may be by judgment entry in which case it will not be
published in any form."
I
{¶10} Appellant claims the trial court erred in granting summary judgment to
appellee. We disagree.
{¶11} Summary Judgment motions are to be resolved in light of the dictates of
Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.
Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:
{¶12} "Civ.R. 56(C) provides that before summary judgment may be granted, it
must be determined that (1) no genuine issue as to any material fact remains to be
litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it
appears from the evidence that reasonable minds can come to but one conclusion, and
viewing such evidence most strongly in favor of the nonmoving party, that conclusion is
adverse to the party against whom the motion for summary judgment is made. State
ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,
citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472,
364 N.E.2d 267, 274."
{¶13} As an appellate court reviewing summary judgment motions, we must
stand in the shoes of the trial court and review summary judgments on the same
Delaware County, Case No. 11CAE050042 4
standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30
Ohio St.3d 35.
{¶14} Generally, an abutting landowner has no duty of care to pedestrians for
the condition of a public sidewalk. Eichorn v. Lustig's, Inc. (1954), 161 Ohio St. 11.
Therefore, under the common law, "[a]n owner of property abutting on a public street is
not liable for injuries to pedestrians resulting from defects in the abutting portion of such
street unless such defects are created or negligently maintained or permitted to exist by
such owner for his own private use or benefit." Id., at syllabus.
{¶15} However, there are three exceptions to this general rule:
{¶16} "1. An owner of property abutting a public sidewalk is not liable to a
pedestrian for injuries proximately caused by a defective or dangerous condition therein
unless:
{¶17} "(a) a statute or ordinance imposes on such owner a specific duty to keep
the sidewalk adjoining his property in good repair;
{¶18} "(b) by affirmative acts such owner creates or negligently maintains the
defective or dangerous condition; or,
{¶19} "(c) such owner negligently permits the defective or dangerous condition
to exist for some private use or benefit." Crowe v. Hoffman (1983), 13 Ohio App.3d
254, paragraph one of the syllabus.
{¶20} Initially, we must address appellant’s contention Eichorn was overruled by
amended R.C. 2744.01(H). For the following reasons, we find appellant's assertion
lacks merit. First, R.C. Chapter 2744 governs the liability of governmental entities and
Delaware County, Case No. 11CAE050042 5
does not address or apply to the liability of private citizens. Also, the legislative notes
make no mention of Eichorn.
{¶21} We now turn to the Eichorn exceptions.
{¶22} Appellant argues Delaware Codified Ordinance 909.02 imposes a specific
duty on appellee as an abutting property owner. Said ordinance states the following in
pertinent part:
{¶23} "(a) Existing Sidewalk and Curb. Existing sidewalks and curbing within
publicly dedicated right of way for public streets and alleys are the responsibility of the
abutting property owner for all required maintenance, repair and replacement activities,
and all associated costs thereof. Maintenance activities shall include, but not be limited
to sweeping and the removal of leaves, snow, and ice as may be required to maintain a
safe access for pedestrian movement."
{¶24} Appellee counters such an ordinance, in and of itself, does not establish a
duty on an abutting landowner to a pedestrian, citing Dennison v. Buckeye Parking
Corp. (1953), 94 Ohio App. 379, 380-381, in support of his position ("the failure of the
abutting owner to maintain a sidewalk in good repair in compliance with an ordinance,
without more, does not give rise to a right of action on the part of a pedestrian who is
injured by reason of such defect').
{¶25} Appellee also cites the Supreme Court of Ohio's decision in Lopatkovich v.
Tiffin (1986), 28 Ohio St. 3d 204. Therein, the court addressed whether Tiffin
Ordinance No. 521.06 imposed a duty upon abutting landowners to a pedestrian. The
Tiffin ordinance stated in pertinent part, "[n]o owner or occupant of abutting lands shall
Delaware County, Case No. 11CAE050042 6
fail to keep the sidewalks, curbs or gutters in repair and free from snow, ice or any
nuisance." The Lopatkovich court at 207 held the following:
{¶26} "In our view, the rationale behind sidewalk snow removal statutes like the
one sub judice is that it would be impossible for a city to clear snow and ice from all its
sidewalks; and the duty imposed by such statutes is most likely a duty to assist the city
in its responsibility to remove snow and ice from public sidewalks. This, however, does
not raise a duty on owners and occupiers to the public at large, and such statutes
should not, as a matter of public policy, be used to impose potential liability on owners
and occupiers who have abutting public sidewalks."
{¶27} We find the statute at issue herein and the Tiffin ordinance to be closely
analogous; therefore, we conclude Lopatkovich controls the instant action. Following
the rationale set forth in Lopatkovich, we find Delaware Codified Ordinance 909.02 does
not impose a duty of care on an abutting landowner to a pedestrian.
{¶28} As stated supra, the second exception is when a property owner by
affirmative act(s) creates or negligently maintains the defective or dangerous condition
causing the injury. "Such evidence must necessarily show that the use of the sidewalk
which brought about its disrepair was expressly or impliedly authorized by such owner."
Eichorn, supra, at 14. "Affirmative acts" have been described as the "construction of an
obstruction, or that the defect was created by the affirmative negligence of the
defendant, such as constructing a manhole in the sidewalk and leaving it uncovered."
Dennison, supra, at 380.
{¶29} In this case, appellant agrees the uneven sidewalk might not be
attributable to appellee's affirmative acts or negligent maintenance. However, appellant
Delaware County, Case No. 11CAE050042 7
contends appellee's failure to remove or trim grass and weeds which grew in the cracks
of the sidewalk and obscured the unevenness is negligent maintenance sufficient to
establish the second exception of the Eichorn rule. We disagree.
{¶30} In its April 26, 2011 judgment entry, the trial court concluded the following:
{¶31} "However, the Eichorn rule requires something more than mere neglect in
allowing grass to grow in a sidewalk. The homeowner must actually do something to
the sidewalk in order to be liable. That has not been shown in this case. Allowing grass
to grow and hide a defect is not negligent maintenance of a sidewalk, but failure to trim
grass or weeds."
{¶32} We concur with the trial court's determination. In this case, the natural
occurrence of grass and weeds sprouting in the sidewalk crack is not tantamount to
"negligently permitting" a defect as annunciated in Eichorn. The natural accumulation of
grass and weeds, as well as the crack being less than two inches, do not equate to
attendant circumstances creating a substantial and dangerous condition.
{¶33} As for the third exception, there is no evidence to suggest that appellee
permitted the complained of condition to exist for some private use or benefit.
{¶34} Upon review, we find the trial court did not err in granting summary
judgment to appellee.
{¶35} The sole assignment of error is denied.
Delaware County, Case No. 11CAE050042 8
{¶36} The judgment of the Court of Common Pleas of Delaware County, Ohio is
hereby affirmed.
By Farmer, J.
Delaney, J. concurs.
Hoffman, P.J. dissents.
_s/ Sheila G. Farmer__________________
_s/ Patricia A. Delaney________________
___________________________________
JUDGES
SGF/sg 913
Delaware County, Case No. 11CAE050042 9
Hoffman, P.J., dissenting
{¶37} I respectfully dissent from the majority opinion.
{¶38} I find the second exception to the Eichorn rule is applicable herein. As
stated, supra, the second exception is when a property owner by affirmative act(s)
creates or negligently maintains the defective or dangerous condition causing the injury.
“Affirmative acts” have been described as the construction of an obstruction, or the
creation of a dangerous condition by the affirmative negligence of the landowner, such
as constructing a manhole in the sidewalk and leaving it uncovered. Dennison v.
Buckeye Parking Corp., supra.
{¶39} In the case at bar, Appellant agrees the uneven sidewalk might not be
attributable to Appellee’s affirmative acts or negligent maintenance. However, Appellant
contends Appellee’s failure to remove or trim grass and weeds which grew in the cracks
of the sidewalk and obscured the unevenness constitutes negligent maintenance
sufficient to establish the second exception of the Eichorn rule. I agree. I refer once
again to the language of Eichorn. Therein, the Ohio Supreme Court stated:
{¶40} “Owners of property abutting on a public street are not liable for injuries to
pedestrians resulting from defects in such streets unless such defects are created or
negligently permitted to exist by such owners for their own private use or benefit, such
as an open trap door in a sidewalk. (Citation omitted).” Id. at 13-14 (Emphasis added).
{¶41} In its April 26, 2011 Judgment Entry, the trial court commented:
{¶42} “[Appellee] concedes that he was aware of the uneven portions of his
sidewalk. * * * Knowledge of this defect, coupled with the failure to remove grass
Delaware County, Case No. 11CAE050042 10
obscuring this defect, could be construed as negligent maintenance of a dangerous
condition.” Id. at 7, unpaginated.
{¶43} Nonetheless, the trial court concluded “the Eichorn rule requires
something more than mere neglect in allowing grass to grow in a sidewalk. The
homeowner must actually do something to the sidewalk in order to be liable. That has
not been shown in this case. Allowing grass to grow and hide a defect is not negligent
maintenance of a sidewalk, but failure to trim grass or weeds.” Id.
{¶44} I disagree with the trial court’s conclusion Appellee’s failure to trim grass
and weeds did not amount to “negligent maintenance” of the hazard. The Eichorn Court
used the term “negligently permit” which I find to be comparable to the term “negligently
maintain.” Appellee negligently permitted the weeds and grass to grow in the gap of the
sidewalk, which resulted in the obstruction of the unevenness. Although the gap
Appellant tripped over is under 2 inches, I find the grass and weeds are arguably
attendant circumstances which could defeat the 2 inch rule. The pictures attached to
Appellant’s affidavit do not show the gap hidden by weeds and grass. However, in her
affidavit, Appellant did not aver the pictures accurately depict the growth of the grass
and weeds in the sidewalk at the time of her fall. Accordingly, I find a disputed issue of
material fact still exists.
{¶45} I would sustain Appellant’s sole assignment of error and reverse and
remand the matter to the trial court.
______________________________________
HON. WILLIAM B. HOFFMAN
Delaware County, Case No. 11CAE050042 11
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
SONJA M. BURGESS :
:
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
MARK A. JOHNSON, ET AL. :
:
Defendants-Appellees : CASE NO. 11CAE050042
For the reasons stated in our accompanying Opinion, the judgment of the Court
of Common Pleas of Delaware County, Ohio is affirmed. Costs to appellant.
_s/ Sheila G. Farmer__________________
_s/ Patricia A. Delaney________________
___________________________________
JUDGES