Sharp v. Shaker Hts.

2021 Ohio 4132

• Court: Ohio Court of Appeals
• Decided: November 18, 2021
• Docket: 110260
• Status: Published

Opinion

[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?

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.