[Cite as Justus v. Lakewood, 2025-Ohio-745.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF OHIO
NICHOLE JUSTUS, : No. 113972 Plaintiff-Appellee, :
v. :
CITY OF LAKEWOOD, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED RELEASED AND JOURNALIZED: March 6, 2025
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-23-974084
Appearances:
Friedman, Domiano & Smith Co., L.P.A., and Marco G. Bocciarelli, for appellee.
The Law Office of Jonathan W. Phillipp, and Jonathan W. Phillipp, for appellant.
SEAN C. GALLAGHER, J.:
Defendant-appellant the City of Lakewood (“the city”) appeals the
decision of the trial court that denied summary judgment to the city on the issue of
political-subdivision immunity. Upon review, we reverse the trial court’s decision. On January 20, 2024, plaintiff-appellee Nichole Justus filed this
personal-injury action against the city. According to her deposition, on August 25,
2022, Justus was riding a motorized scooter on a street in Lakewood, Ohio. As she
“was slowing down and pulling off the road” near her destination, “the front wheel
just caught like what felt like a circular divot in the road” and she “fell very fast” and
sustained substantial personal injuries. Photographs taken after the incident depict
a circular depression in the road inside a painted-off area near a fire hydrant. The
area of the street is also in front of the Lakewood Fire Department. Justus alleged
in her complaint that “[a]s a result of [the city’s] negligent conduct in failing to
properly repair or replace or warn and/or protect motorists/pedestrians, such as
plaintiff, of the existing hazards on the street in front of 18124 Detroit Avenue,
Lakewood, Ohio, plaintiff fell on the defective street, resulting in severe personal
injury.”
During the trial-court proceedings, the city moved for summary
judgment on the basis of political-subdivision immunity, as well as under a waiver
and release agreement for the scooter rental. The trial court denied the motion. The
city timely appealed the portion of the trial court’s decision that denied the benefit
of immunity, to which the scope of our review is limited. See Wilson v. Cleveland,
2024-Ohio-5913, ¶ 7 (8th Dist.). We have thoroughly reviewed the testimony and
evidence in the record before us.
“The review of a summary judgment denying political-subdivision
immunity is de novo and is governed by the summary-judgment standard set forth in Civ.R. 56.” Pelletier v. Campbell, 2018-Ohio-2121, ¶ 13, citing Comer v. Risko,
2005-Ohio-4559, ¶ 8. Summary judgment is appropriate only when “[1] no genuine
issue of material fact remains to be litigated, [2] the moving party is entitled to
judgment as a matter of law, and, [3] viewing the evidence most strongly in favor of
the nonmoving party, reasonable minds can reach a conclusion only in favor of the
moving party.” Argabrite v. Neer, 2016-Ohio-8374, ¶ 14, citing M.H. v. Cuyahoga
Falls, 2012-Ohio-5336, ¶ 12.
There is no dispute that the city is a political subdivision entitled to
the general grant of immunity afforded under R.C. 2744.02(A), and that the city’s
maintenance and repair of its roads, highways, streets, and avenues is a
governmental function defined under R.C. 2744.01(C)(2)(e). As the city states, “the
roadway at issue here — Detroit Avenue — is a public street within the City’s
municipal limits.” Our focus is on the exception to political-subdivision immunity
under R.C. 2744.02(B)(3), which provides with limited exception that “political
subdivisions are liable for injury, death, or loss to person or property caused by [its]
negligent failure to keep public roads in repair and other failure to remove
obstructions from public roads[.]” R.C. 2744.02(B)(3).1
The Supreme Court of Ohio has construed the phrase “in repair” to
mean “‘the state of being in good or sound condition.’” Pelletier at ¶ 19, quoting
1 The Ohio Supreme Court has held that “for purposes of R.C. 2744.02(B)(3), an
‘obstruction’ must be an obstacle that blocks or clogs the roadway and not merely a thing or condition that hinders or impedes the use of the roadway or that may have the potential to do so.” Howard v. Miami Twp. Fire Div., 2008-Ohio-2792, ¶ 30. Webster’s Third New International Dictionary 1923 (2002). This may include
fixing holes or crumbling pavement, “‘i.e., repairing potholes when a road is
deteriorating.’” Nadrowski v. Cleveland, 2022-Ohio-3232, ¶ 14 (8th Dist.), quoting
Todd v. Cleveland, 2013-Ohio-101, ¶ 15 (8th Dist.); Wilson, 2024-Ohio-5913, at ¶ 18
(8th Dist.). However, as applicable to this matter, the record presented must show
there are genuine issues of material facts as to whether the city “negligently failed”
to keep a public road in repair pursuant to the exception to immunity in
R.C. 2744.02(B)(3). As this court previously has indicated, a city has “a duty to
repair roads that have deteriorated into a potentially hazardous condition[.]”
Nadrowski at ¶ 14, citing Todd at ¶ 15; see also Wilson at ¶ 19, citing Silverman v.
Cleveland, 2021-Ohio-688, ¶ 14 (8th Dist.). Also, in order to impose liability upon
a city for breach of this duty, there must be proof to show that the city “‘actively
created the faulty condition, or that it was otherwise caused and the municipality
has actual or constructive notice of its existence.’” Gomez v. Cleveland, 2012-Ohio-
1642, ¶ 7 (8th Dist.), quoting Cleveland v. Amato, 123 Ohio St. 575, 577 (1931).
Generally, “actual notice” exists when notice is “‘communicated directly to or
received by a responsible party[.]’” Nadrowski at ¶ 17, quoting Silverman at ¶ 17.
“‘There is constructive knowledge where the [condition] 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.’” Gomez at ¶ 9, quoting Kertesz v.
Fulton Cty., 2006-Ohio-3178, ¶ 20 (6th Dist.). In this case, the city argues that it was not negligent regarding the
upkeep or repair of the road, that the depression was de minimis, and that the
depression was on a paint-striped portion of the road not meant to be driven on.
The city also claims that the condition was open and obvious and was not
hazardous.2 Photographs taken after the incident show the nature of the condition,
and testimony in the record reflects the approximate size of the depression, which
did not render the regularly traveled portion of the roadway unsafe. Justus
acknowledges that the depression was outside of the normal lane of traffic.
The city further argues that the evidence on record provides no
support for the notion that the subject depression presented a potentially hazardous
condition about which the city knew about or should have known about and that no
exception to immunity can be established in this matter. As the city states, it “did
not expect or apprehend any potential danger from the depression because it was
both de minimis and not meant to be traveled over.” Roman Duco, who was the
public works director for the city at the time of Justus’s scooter accident, testified
that he was not aware of any complaints about the depression. Myron Lucan, the
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[Cite as Justus v. Lakewood, 2025-Ohio-745.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF OHIO
NICHOLE JUSTUS, : No. 113972 Plaintiff-Appellee, :
v. :
CITY OF LAKEWOOD, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED RELEASED AND JOURNALIZED: March 6, 2025
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-23-974084
Appearances:
Friedman, Domiano & Smith Co., L.P.A., and Marco G. Bocciarelli, for appellee.
The Law Office of Jonathan W. Phillipp, and Jonathan W. Phillipp, for appellant.
SEAN C. GALLAGHER, J.:
Defendant-appellant the City of Lakewood (“the city”) appeals the
decision of the trial court that denied summary judgment to the city on the issue of
political-subdivision immunity. Upon review, we reverse the trial court’s decision. On January 20, 2024, plaintiff-appellee Nichole Justus filed this
personal-injury action against the city. According to her deposition, on August 25,
2022, Justus was riding a motorized scooter on a street in Lakewood, Ohio. As she
“was slowing down and pulling off the road” near her destination, “the front wheel
just caught like what felt like a circular divot in the road” and she “fell very fast” and
sustained substantial personal injuries. Photographs taken after the incident depict
a circular depression in the road inside a painted-off area near a fire hydrant. The
area of the street is also in front of the Lakewood Fire Department. Justus alleged
in her complaint that “[a]s a result of [the city’s] negligent conduct in failing to
properly repair or replace or warn and/or protect motorists/pedestrians, such as
plaintiff, of the existing hazards on the street in front of 18124 Detroit Avenue,
Lakewood, Ohio, plaintiff fell on the defective street, resulting in severe personal
injury.”
During the trial-court proceedings, the city moved for summary
judgment on the basis of political-subdivision immunity, as well as under a waiver
and release agreement for the scooter rental. The trial court denied the motion. The
city timely appealed the portion of the trial court’s decision that denied the benefit
of immunity, to which the scope of our review is limited. See Wilson v. Cleveland,
2024-Ohio-5913, ¶ 7 (8th Dist.). We have thoroughly reviewed the testimony and
evidence in the record before us.
“The review of a summary judgment denying political-subdivision
immunity is de novo and is governed by the summary-judgment standard set forth in Civ.R. 56.” Pelletier v. Campbell, 2018-Ohio-2121, ¶ 13, citing Comer v. Risko,
2005-Ohio-4559, ¶ 8. Summary judgment is appropriate only when “[1] no genuine
issue of material fact remains to be litigated, [2] the moving party is entitled to
judgment as a matter of law, and, [3] viewing the evidence most strongly in favor of
the nonmoving party, reasonable minds can reach a conclusion only in favor of the
moving party.” Argabrite v. Neer, 2016-Ohio-8374, ¶ 14, citing M.H. v. Cuyahoga
Falls, 2012-Ohio-5336, ¶ 12.
There is no dispute that the city is a political subdivision entitled to
the general grant of immunity afforded under R.C. 2744.02(A), and that the city’s
maintenance and repair of its roads, highways, streets, and avenues is a
governmental function defined under R.C. 2744.01(C)(2)(e). As the city states, “the
roadway at issue here — Detroit Avenue — is a public street within the City’s
municipal limits.” Our focus is on the exception to political-subdivision immunity
under R.C. 2744.02(B)(3), which provides with limited exception that “political
subdivisions are liable for injury, death, or loss to person or property caused by [its]
negligent failure to keep public roads in repair and other failure to remove
obstructions from public roads[.]” R.C. 2744.02(B)(3).1
The Supreme Court of Ohio has construed the phrase “in repair” to
mean “‘the state of being in good or sound condition.’” Pelletier at ¶ 19, quoting
1 The Ohio Supreme Court has held that “for purposes of R.C. 2744.02(B)(3), an
‘obstruction’ must be an obstacle that blocks or clogs the roadway and not merely a thing or condition that hinders or impedes the use of the roadway or that may have the potential to do so.” Howard v. Miami Twp. Fire Div., 2008-Ohio-2792, ¶ 30. Webster’s Third New International Dictionary 1923 (2002). This may include
fixing holes or crumbling pavement, “‘i.e., repairing potholes when a road is
deteriorating.’” Nadrowski v. Cleveland, 2022-Ohio-3232, ¶ 14 (8th Dist.), quoting
Todd v. Cleveland, 2013-Ohio-101, ¶ 15 (8th Dist.); Wilson, 2024-Ohio-5913, at ¶ 18
(8th Dist.). However, as applicable to this matter, the record presented must show
there are genuine issues of material facts as to whether the city “negligently failed”
to keep a public road in repair pursuant to the exception to immunity in
R.C. 2744.02(B)(3). As this court previously has indicated, a city has “a duty to
repair roads that have deteriorated into a potentially hazardous condition[.]”
Nadrowski at ¶ 14, citing Todd at ¶ 15; see also Wilson at ¶ 19, citing Silverman v.
Cleveland, 2021-Ohio-688, ¶ 14 (8th Dist.). Also, in order to impose liability upon
a city for breach of this duty, there must be proof to show that the city “‘actively
created the faulty condition, or that it was otherwise caused and the municipality
has actual or constructive notice of its existence.’” Gomez v. Cleveland, 2012-Ohio-
1642, ¶ 7 (8th Dist.), quoting Cleveland v. Amato, 123 Ohio St. 575, 577 (1931).
Generally, “actual notice” exists when notice is “‘communicated directly to or
received by a responsible party[.]’” Nadrowski at ¶ 17, quoting Silverman at ¶ 17.
“‘There is constructive knowledge where the [condition] 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.’” Gomez at ¶ 9, quoting Kertesz v.
Fulton Cty., 2006-Ohio-3178, ¶ 20 (6th Dist.). In this case, the city argues that it was not negligent regarding the
upkeep or repair of the road, that the depression was de minimis, and that the
depression was on a paint-striped portion of the road not meant to be driven on.
The city also claims that the condition was open and obvious and was not
hazardous.2 Photographs taken after the incident show the nature of the condition,
and testimony in the record reflects the approximate size of the depression, which
did not render the regularly traveled portion of the roadway unsafe. Justus
acknowledges that the depression was outside of the normal lane of traffic.
The city further argues that the evidence on record provides no
support for the notion that the subject depression presented a potentially hazardous
condition about which the city knew about or should have known about and that no
exception to immunity can be established in this matter. As the city states, it “did
not expect or apprehend any potential danger from the depression because it was
both de minimis and not meant to be traveled over.” Roman Duco, who was the
public works director for the city at the time of Justus’s scooter accident, testified
that he was not aware of any complaints about the depression. Myron Lucan, the
city streets and forestry group leader, testified that the depression, which he
observed from photographs appeared to be a half inch to an inch deep and was
located in a no-drive zone, would not have been a priority to repair. Although the
2 We make no determination herein regarding the open-and-obvious argument
that is presented by the city. depression was investigated and repaired following the accident, Duco indicated
that the repair would have been made to prevent any type of further depression.
Although Justus asserts, among other arguments, that the depression
existed for a few years prior to the incident, had been painted over, and was located
near a fire hydrant and in front of a fire department, Justus has not offered evidence
showing a genuine issue of material fact for trial. The testimony reflects re-striping
of the road surface was done by a third-party contractor. There is no indication that
firefighters from the nearby fire station were aware of the depression. Moreover,
although Justus suggests firefighters flushing the hydrant should have realized the
condition was there and was dangerous, the firefighters’ work did not extend to road
maintenance and repair such that knowledge could be imputed to the city. See
Hallowell v. Athens, 2004-Ohio-4257, ¶ 10-11 (4th Dist.). Additionally, there is no
evidence to support a determination that had the depression been discovered, it
would have created a reasonable apprehension of a potential danger. There simply
is a lack of evidence in the record indicating that the city knew the road needed
repair or that the city had knowledge of a faulty condition. We are not persuaded by
Justus’s other arguments.
From the record before us, Justus cannot establish from the evidence
that the city had a duty to repair the subject depression. Even if she could, there is
nothing to show that the city had actual or constructive notice of the condition or
that it should have anticipated that the depression posed a hazard or potential
danger. Consequently, the exception to political-subdivision immunity under R.C. 2744.02(B)(3) cannot be found to apply in this matter. No other exception
under R.C. 2744.02(B) applies.3
Our review shows no genuine issues of material fact that remain to be
litigated. After reviewing the evidence in a light most favorable to Justus, we find
reasonable minds can come to but one conclusion — the city is entitled to political-
subdivision immunity. Accordingly, we conclude the city is entitled to summary
judgment based on political-subdivision immunity and we sustain the city’s
assignment of error.
Judgment reversed.
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.
______________________ SEAN C. GALLAGHER, JUDGE
EMANUELLA D. GROVES, P.J., and WILLIAM A. KLATT, J.,* CONCUR
(*Sitting by assignment: William A. Klatt, J., retired, of the Tenth District Court of Appeals.)
3 Because no exception to immunity applies, no analysis is necessary under R.C. 2744.03.