Bello v. Cleveland

138 N.E. 526, 1 Ohio Law. Abs. 311, 106 Ohio St. 94, 1922 Ohio LEXIS 270

• Court: Ohio Supreme Court
• Decided: November 14, 1922
• Docket: No. 16756
• Status: Published

Opinion

Epitomized Opinion

MARSHALL, C. J.

Bello was employed as a private watchman in the city of Cleveland, and while in the discharge of his duties stepped off the sidewalk' of St. Clair Ave. opposite the premises of Bardons & Oliver and as the ground gave wav his foot sank into boiling • water and steam. Testimony in the lower court brought out that there was no surface indication of a dangerous condition, but that prior to the date of the accident, an open excavation had appeared near the same point, but which had been repaired by the city. Testimony also showed that a<n agent of the city saw escaping steam in the vicinity and knew of the dangerous condition. Bello instituted a suit against Bardons & Oliver which was settled by payment of $2450 to Bello and a covenant by Bello not to sue Bardons & Oliver. Bello, however, brings this action against the city. Held by Supreme Court in affirming judgment for the city:

Official Syllabus

1. The ■ liability of a municipality under 3714 GC. can only be established by proof of notice or knowledge of a dangerous condition in a street, or other public place as therein enumerated, or of its existence for such length of time as to impute notice or knowledge, or by proof that the agents and officers of the municipality actively caused such condition.

2. Such notice or knowledge is not established by proof that an agent or officer of the municipality knew of certain acts of an abutting property owner, which had previously Caused another nuisance in the same vicinity; nor under such circumstances is the municipality rendered liable.

3. Where a dangerous condition. in one of the highways of a municipality has been caused solely by negligent acts of an abutting- property owner, resulting in injury to' a person lawfully traversing the highway, and such person first pursues an abutting owner on the ground of negligence, and in settling such claim covenants to abstain from bringing any further action against him by reason of such injuries, such covenant will preclude any action against or recovery from the municipality thereafter. 53 O. S. 605 and 57 O. S. 330 approved and followed.