[Cite as Boucher v. Cleveland, 2023-Ohio-1818.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

MAUREEN BOUCHER, :

Plaintiff-Appellee, :

No. 112079

v. :

CITY OF CLEVELAND, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: June 1, 2023

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-21-953310

Appearances:

The Henry Law Firm and Eric W. Henry, for appellee. 

Mark Griffin, Cleveland Director of Law, and Jerome A. 

Payne, Jr., Assistant Director of Law, for appellant. 

EILEEN T. GALLAGHER, J.:

Defendant-appellant, the city of Cleveland (the “city”), appeals from the 

trial court’s judgment denying its motion for summary judgment. The city raises the 

following assignments of error for review:

1. It was reversible error for the trial court to hold that there was a 

genuine issue of material fact as to when the city’s employee installed 
cones and tape at a certain location when the uncontradicted 

documentary evidence in the record reflected that the work at issue was 

completed on October 12, 2019.

2. It was reversible error for the trial court to hold that the city’s 

employee’s failure to recall “whether he performed the work on the 

subject area on Saturday, October 12 or Sunday October 13” created a 

genuine issue of material fact when there also existed unambiguous 

and uncontradicted documentary evidence and testimony in the record 

establishing that the work at issue was completed on October 12, 2019.

3. It was reversible error for the trial court to hold that a time stamp at 

the bottom of “Defendant’s Daily Log” documented that the area at 

issue was secured by cones and caution tape “at 1:44 p.m. on October 

13, 2019,” with no evidentiary support especially when there was a 

second, identical Daily Log in the record but with a different time stamp 

of 12/09/2020 at 10:22 a.m., and the copies of the Daily Log also each 

included a description of the work at issue in the box labeled “done”

and clearly dated 10/12/2019.

4. As a matter of law, under R.C. 2744.03, the city is immune from 

liability for injuries allegedly caused from the exercise of judgment or 

discretion in using personnel, equipment, and resources.

After careful review of the record and relevant case law, we affirm the 

trial court’s judgment.

I. Procedural and Factual History

This matter stems from a personal injury lawsuit filed against the city 

by plaintiff-appellee, Maureen Boucher (“Boucher”). 

Shortly before 12:00 p.m. on Sunday, October 13, 2019, Boucher and 

her friend, Barbra McCoy (“McCoy”), were walking westbound on a sidewalk located 

on West 3rd Street in Cleveland, Ohio. At some point, Boucher stepped onto a 

utility-access port located on the sidewalk. The concrete block covering the access 

port was damaged, causing Boucher’s foot to fall through the covering and into the 
recessed access port. As a result of the incident, Boucher sustained injuries to her 

leg and foot. 

According to Boucher and McCoy, “there was no caution tape, cones, or 

any other markings or warnings indicating that the utility box cover was unsafe or 

posed a hazard.” (McCoy affidavit a ¶ 6; Boucher depo. tr. at 33.) McCoy took 

multiple photographs of the broken utility-port cover shortly after Boucher was 

taken away in an ambulance. Collectively, the photographs depict the scene as it 

existed at the time of Boucher’s fall and, subsequently, as it existed once the police 

secured the utility-access port by “placing cones and caution tape around it.” 

(McCoy affidavit at ¶ 8.) Danny Chalhoub (“Chalhoub”), an employee of a nearby 

restaurant who assisted Boucher from the ground, similarly expressed that “at the 

time [Boucher] fell, there was no caution tape, barricades, cones, or any other sign 

warning of any hazardous condition or danger associated with the cement slab or 

the utility hold.” (Chalhoub affidavit at ¶ 7.)

On September 21, 2021, Boucher filed a civil complaint against the city, 

alleging that she sustained “serious injuries and damages” as a direct and proximate 

result of the city’s “failure to inspect, maintain, warn of, and/or repair the hazardous 

condition presented by the broken concrete block prior to October 13, 2019.” 

On June 15, 2022, the city filed a motion for summary judgment, 

arguing that it “is entitled to political subdivision immunity and the record is devoid 

of evidence to establish that any of the exceptions to immunity apply.” Alternatively, 

the city argued that even if one of the exceptions apply, “immunity is restored 
because defendant made discretionary decisions regarding allocation of resources 

and personnel.” 

In support of its motion for summary judgment, the city attached (1) 

the affidavit and deposition testimony of Assistant Commissioner of Cleveland 

Public Power, Bernie Jackson (“Jackson”), (2) the deposition testimony of Joseph 

Wilson (“Wilson”), a Trouble Department foreman, (3) the deposition testimony of 

Boucher, (4) the deposition testimony of McCoy, (5) photographs of the damaged 

utility port, and (6) a copy of Cleveland Public Power’s Dispatcher Daily Log, dated 

October 12, 2019. 

Relevant to this appeal, Cleveland Public Power is a 300-person 

division of the city of Cleveland. As part of its operations, Cleveland Public Power 

employs a Trouble Department that is tasked with responding to emergency calls 24 

hours a day. 

The evidence supporting the city’s motion for summary judgment 

demonstrates that on Saturday, October 12, 2019, the Trouble Department received 

a complaint, notifying it of the broken utility-port cover located on the sidewalk of 

West 3rd Street. The call was received by Trouble Department dispatcher, Charles 

Pankratz (“Pankratz”), at approximately 12:05 p.m. In accordance with his job 

responsibilities, Pankratz notified foreman Wilson of the complaint and instructed 

Wilson to investigate the damaged property and secure the area. Pankratz also 

documented the reported issue in a Daily Log report. The Daily Log indicates that 

Wilson’s crew “start[ed]” its work at approximately 12:06 p.m. and “stop[ped]” its 
work at approximately 12:45 p.m. The “Work Done” section of the log states that 

Wilson’s crew took the following actions: “coned off broken pole-box cover in side 

walk [-] refer to replace ASAP.” The timestamp located on the subject daily log is 

dated Sunday, October 13, 2019, at 1:44:28 p.m. 

With respect to the timestamp, Pankratz confirmed that the Trouble 

Department’s data-entry system creates a timestamp once the dispatcher completes 

the “work-done” section of the report and “closes out” the Daily Log. (Pankratz 

depo. at tr. 28-29.) Nevertheless, when questioned about the timestamp located at 

the bottom of the Daily Log report, Pankratz testified that he did not have a complete

understanding of “that particular aspect of the daily log.” (Id. at 30-31.) Pankratz 

suggested, while acknowledging his uncertainty, that the timestamp may have 

reflected when the document was printed by a member of the Trouble Department.

Wilson testified that upon receiving the dispatch from Pankratz, he 

arrived at West 3rd Street and identified the reported issue. Wilson stated that the 

utility-port cover was sunken and not level with the sidewalk because the concrete 

surrounding the cover was “severely uneven.” (Wilson depo. tr. at 25.) According 

to Wilson, his crew did not attempt to permanently fix the damaged utility-port

cover because it required the services of an underground construction crew. Wilson 

testified that he attempted to make the area safe “so nobody would get injured,”

stating,

So I coned it off, some caution tape. I grabbed a couple of barrels that 

were in the area to make it more visible and more so that people 

couldn’t walk through it and that’s what I did for it. And then 
immediately I make my call to dispatch to get it into the hands of the 

right people that can fix it permanently.

(Wilson depo. tr. 26-27.) 

Pertinently, Wilson estimated that he and his crew were at the scene 

for approximately 20 minutes. He testified that he could not recall whether he 

received the dispatch on a Saturday or a Sunday. (Id. at 21.) However, Wilson 

maintained that “if the dispatch came in on October 12,” he responded to the scene 

of the damaged property “on that same day.” (Id. at 26.) In making this statement, 

Wilson conceded that he was relying exclusively on the date set forth in the Daily 

Log report and did not have an independent memory of the date or day of week he 

secured the utility-port cover.

Assistant Commissioner Jackson provided extensive testimony at his 

deposition concerning the role of the Trouble Department and the nature of the 

work performed by its staff members. Jackson testified that there is no formal policy 

in place regarding the time in which the Trouble Department is required to respond 

to an emergency. However, he expressed that emergencies are routinely addressed 

by the Trouble Department on the same day they are reported, stating “once we’re 

notified of [an emergency], we make sure someone goes out and addresses it.” 

(Jackson depo. at tr. 22.)

Jackson further described the role of the dispatchers and the Daily Log 

report. Jackson explained that once a call comes into the Trouble Department, a 

dispatcher creates a log and contacts a crew to respond to the scene of the reported 
issue. Once the crew assesses the issue, it reports back to the dispatcher about the 

actions they took and whether the issue needs to be referred to another department. 

If the issue requires a referral to another department, the dispatcher is tasked with 

contacting the supervisor of the appropriate department via email to notify him or 

her of the work to be completed. Jackson testified that once the Trouble Department 

finishes the required work or otherwise refers the matter to another department, the 

Daily Log report generated by the dispatcher is closed out. (Jackson depo. at tr. 29.) 

Regarding the Daily Log report completed by Pankratz in this case, 

Jackson expressed that it was his understanding that the log had to have been 

completed on October 12, 2019, because the date is automatically generated by the 

programming once the log is opened by the dispatcher. With that stated, however,

Jackson conceded that he did not have any firsthand knowledge of whether Wilson 

placed cones around the damaged property on October 12, 2019, or whether the 

cones were present at the time Boucher fell on October 13, 2019. 

Finally, Jackson averred that as a foreman, Wilson had “the discretion 

in deciding when and how safety measures are implemented when responding to 

department calls.” Jackson explained as follows:

Trouble Department Foreman are expected to access the situation and 

based on their experience and training make the appropriate decision 

in securing the area. Placing caution tape and warning cones around a 

pole box until it can be repaired is consistent with our employee 

training. Pole box covers are considered a heavy item that the Trouble 

Department does not repair or replace. Trouble Department 

employees do not carry replacement pole box covers in their vehicles. 

Pole box covers are repaired/replaced by an underground construction 

crew. Pole box repair/replacement calls that occur on the weekend are 
usually scheduled for repair/ replacement on the upcoming weekday. 

Trouble Department foreman have the discretion to request an 

immediate response from an underground construction crew for issues 

he/she deems to be an emergency situation that requires an immediate 

response. * * * Due to budgetary constraints and personnel shortfalls, 

CPP’s underground construction crews operate during the weekdays 

and are used on the weekends on an emergency basis.

(Jackson affidavit at ¶ 2-3.)

Based on the foregoing evidence, the city maintained that although it 

had notice of the hazardous condition on October 12, 2019, it was not negligent in 

its performance of a proprietary function where the uncontroverted facts 

demonstrate that “Wilson took the necessary steps to protect and warn others to 

avoid the [utility-port] area by putting up cones and caution tape.” Alternatively, 

the city asserted that it was entitled to immunity pursuant to R.C. 2744.03(A)(5) 

because the injury complained of resulted from Wilson’s exercise of judgment or 

discretion in relation to how he “investigated, secured, and scheduled the utility port 

repair” on October 12, 2019.

On July 15, 2022, Boucher filed a brief in opposition to the city’s 

motion for summary judgment, arguing the city “is not entitled to sovereign 

immunity where [she] has shown significant evidence that she was injured due to 

the negligence of a city employee engaged in a proprietary function.” Regarding the 

application of the exception to immunity contained at R.C. 2744.02(B)(2), Boucher 

maintained that “the evidence in this case creates, at a minimum, a factual issue as 

to whether Joseph Wilson was negligent in failing to secure the [known hazard] in a 

timely manner as was necessary for this emergency.” According to Boucher, “the 
evidence shows Wilson did not secure the broken handhole cover on October 12, 

2019.” Rather, Boucher maintained that the work was completed on October 13, 

2019, stating:

Importantly, Wilson was unsure of the date or time that he actually 

observed the scene. Wilson could not remember whether he got the 

call on a Saturday (October 12th) or Sunday (October 13th). Wilson 

does not recall what time he responded to the call. Wilson admitted 

that he did not know the exact date he claims to have put cones or tape 

up around the [utility port]. He stated it was possible he put cones and 

tape up after the Browns game on October 13th. Other witnesses 

testified plainly that the area had not been secured prior to Maureen 

Boucher’s fall before the Browns game on October 13th, 2019.

* * *

[Additionally], the Daily Log itself shows a completion timestamp of 

October 13, 2019 at 1:44 p.m. — after [Boucher] had already fallen. The 

timestamp is automatically generated in the computer management 

system after the solution to the problem is documented and cannot be 

manually changed by employees.

Boucher further argued that the city cannot establish any of the 

defenses listed under R.C. 2744.03 because Wilson’s discretionary exercise of 

judgment is not relevant where the evidence suggests that he “failed to act on the 

emergency complaint reported on October 12th despite knowing that on October 

13th that the same sidewalk would be crowded with pedestrians.” Boucher 

explained that her negligence claim “is not based on how the city chose to make the 

hazard safe, but rather on the city’s failure to do anything to make the hazard safe 

before she fell.”

In support of her brief in opposition, Boucher attached (1) a copy of 

Cleveland Public Power’s Dispatcher Daily Log, dated October 12, 2019, (2) the 
affidavit of Chalhoub, (3) the affidavit of McCoy, (4) photographs of the damaged 

handhole cover, and (5) the deposition testimony of Boucher, Pankratz, Wilson, and 

Jackson.

On September 28, 2022, the trial court denied the city’s motion for 

summary judgment, stating, in relevant part:

In its motion for summary judgment, the defendant concedes that it 

was on notice of a dangerous condition. Nevertheless, the defendant 

argues that it was not negligent as its agent, Joseph Wilson, reasonably 

secured the area with cones and caution tape. Defendant claims that 

this was sufficient and appropriate until a more permanent repair could 

be effectuated. Defendant alternatively asserts that even if Mr. 

Wilson’s actions somehow fell below the standard of care (i.e. simply 

securing the area vs. implementing a permanent repair) immunity is 

reinstated as Mr. Wilson was exercising judgment and discretion in the 

use of the defendant’s resources.

The problem with defendant’s arguments, both as to compliance with 

the standard of care and exercise of judgment, is they assume that the 

defendant actually did what it claims, and installed cones and caution 

tape prior to the plaintiff’s injury. Defendant’s motion for summary 

judgment must be denied in this case as the evidence before the court 

creates an issue of material fact as to when Mr. Wilson actually installed 

the cones and caution tape.

Numerous witnesses, in addition to the plaintiff, have testified that at 

the time of the plaintiff’s injury there was no caution tape, barricades, 

cones, or any other sign or warning of a hazardous condition. It is 

certainly possible that someone removed the caution materials after 

Mr. Wilson’s placement at the scene. And while there is no evidence to 

support this supposition, this would potentially explain their absence 

at the time of plaintiff’s accident. However, according to Mr. Wilson’s 

own deposition he is unable to recall whether he performed the work 

on the subject area on Saturday, October 12th or Sunday, October 13th. 

He also cannot attest as to the time he completed his actions, before or 

after the plaintiff was injured. Finally, the defendant’s daily log 

documents the work as being completed by Mr. Wilson at 1:44 October 

13, 2019, after plaintiff’s injury occurred. For these reasons, 

defendant’s motion for summary judgment based upon the application 

of sovereign immunity must be denied.
The city now appeals from the trial court’s judgment.

II. Law and Analysis

Within its first, second, third, and fourth assignments of error, the city 

argues that the trial court committed reversible error by denying its motion for 

summary judgment. The city contends that the “unambiguous and uncontradicted 

documentary evidence and testimony” demonstrates that city employees timely 

responded to the reported hazard on October 12, 2019, and exercised reasonable 

care in securing the area. Alternatively, the city contends that even if Boucher could 

prove the necessary elements for a claim of negligence, the city is immune from 

liability by operation of R.C. 2744.03(A)(5). We address the city’s assignments of 

error together because they are related.

A. Standard of Review

An appellate court reviews the grant or denial of summary judgment 

de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). 

In a de novo review, this court affords no deference to the trial court’s decision and 

we independently review the record to determine whether the denial of summary 

judgment is appropriate. Hollins v. Shaffer, 182 Ohio App.3d 282, 2009-Ohio-2136, 

912 N.E.2d 637, ¶ 12 (8th Dist.).

Summary judgment is appropriate if (1) no genuine issue of any 

material fact remains; (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 construing the 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. Grafton at 105, citing State ex rel. Cassels v. Dayton City School 

Dist. Bd. of Edn., 69 Ohio St.3d 217, 631 N.E.2d 150 (1994).

The party moving for summary judgment bears the burden of 

demonstrating that no material issues of fact exist for trial. Dresher v. Burt, 75 Ohio 

St.3d 280, 292-293, 662 N.E.2d 264 (1996). The moving party has the initial 

responsibility of informing the trial court of the basis for the motion and identifying 

those portions of the record that demonstrate the absence of a genuine issue of 

material fact on the essential elements of the nonmoving party’s claims. Id. After 

the moving party has satisfied this initial burden, the nonmoving party has a 

reciprocal duty to set forth specific facts by the means listed in Civ.R. 56(C) showing 

that there is a genuine issue of material fact. Id.

B. Jurisdiction

Typically, an order denying a motion for summary judgment is not a 

final, appealable order. Ceasor v. E. Cleveland, 2018-Ohio-2741, 112 N.E.3d 496, 

¶ 13 (8th Dist.), citing Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 

N.E.2d 878, ¶ 9, citing State ex rel. Overmeyer v. Walinski, 8 Ohio St.2d 23, 24, 222 

N.E.2d 312 (1966). However, R.C. 2744.02(C) provides:

An order that denies a political subdivision or an employee of a political 

subdivision the benefit of an alleged immunity from liability as 

provided in this chapter or any other provision of the law is a final 

order.

While we are authorized to review the trial court’s decision, the scope 

of that review is limited. Id. at ¶ 14. We may only examine “alleged errors in the 
portion of the trial court’s decision that denied the benefit of immunity.” Id., citing 

Reinhold v. Univ. Hts., 8th Dist. Cuyahoga No. 100270, 2014-Ohio-1837, ¶ 21, citing 

Riscatti v. Prime Properties Ltd. Partnership, 137 Ohio St.3d 123, 2013-Ohio-4530, 

998 N.E.2d 437, ¶ 20.

C. Political Subdivision Immunity

A determination of whether a political subdivision has immunity 

involves a three-step analysis. Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio4674, 955 N.E.2d 954, ¶ 13, citing Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-

Ohio-3319, 790 N.E.2d 781; Lambert v. Clancy, 125 Ohio St.3d 231, 2010-Ohio1483, 927 N.E.2d 585. 

R.C. 2744.02(A)(1) divides the functions of a political subdivision into 

two types, governmental functions and proprietary functions. Under the first tier, if 

a defendant is determined to be a political subdivision, it is immune from liability 

for its governmental and proprietary functions “in a civil action for injury, death, or 

loss to person or property allegedly caused by any act or omission of the political 

subdivision or an employee of the political subdivision * * *.” R.C. 2744.02(A)(1). 

Political-subdivision immunity, however, is not absolute. As a result, 

the second step of the analysis focuses on the five exceptions to immunity listed in 

R.C. 2744.02(B), which can expose the political subdivision to liability. Colbert at 

¶ 8, citing Cater v. Cleveland, 83 Ohio St.3d 24, 24, 697 N.E.2d 610 (1998). Relevant 

to this appeal, R.C. 2744.02(B)(2) provides as follows:

Except as otherwise provided in sections 3314.07 and 3746.24 of the

Revised Code, political subdivisions are liable for injury, death, or loss 
to person or property caused by the negligent performance of acts by 

their employees with respect to proprietary functions of the political 

subdivisions.

If any of the exceptions in R.C. 2744.02(B) apply, and if no defense in 

that section protects the political subdivision from liability, then the third step of the 

analysis requires an assessment of whether any defenses in R.C. 2744.03 apply to 

reinstate immunity. Id. at ¶ 9. If none of the R.C. 2744.02(B) exceptions to 

immunity apply, however, R.C. 2744.03’s defenses need no consideration. 

As relevant here, R.C. 2744.03 provides, in pertinent part:

In a civil action brought against a political subdivision or an employee 

of a political subdivision to recover damages for injury, death, or loss 

to person or property allegedly caused by any act or omission in 

connection with a governmental or proprietary function, the following 

defenses or immunities may be asserted to establish nonliability:

* * * 

(5) The political subdivision is immune from liability if the injury, 

death, or loss to person or property resulted from the exercise of 

judgment or discretion in determining whether to acquire, or how to 

use, equipment, supplies, materials, personnel, facilities, and other 

resources unless the judgment or discretion was exercised with 

malicious purpose, in bad faith, or in a wanton or reckless manner.

R.C. 2744.03(A)(5).

1. General Immunity — R.C. 2744.02(A)(1)

In this case, there is no dispute that the city is a political subdivision. 

Thus, the pertinent issues before this court are whether there remain triable issues 

of material fact concerning (1) whether the city, through the act of its employee, 

negligently performed an act related to a proprietary function, and, if so, (2) whether 

Boucher’s injury “resulted from the exercise of judgment or discretion in 
determining whether to acquire, or how to use, equipment, supplies, materials, 

personnel, facilities, and other resources[.]” See R.C. 2744.02(B)(2) and 

2744.03(A)(5).

2. Exception to Immunity — R.C. 2744.02(B)(2)

In the second tier of the immunity analysis, we determine whether one 

of the five exceptions to immunity outlined in R.C. 2744.02(B) applies to hold the 

political subdivision liable for damages. As previously mentioned, the exception to 

immunity contained in R.C. 2744.02(B)(2) provides that “a political subdivision is 

liable in damages in a civil action for injury, death, or loss to persons or property 

caused by an act or omission of the political subdivision or any of its employees in 

connection with the performance of a proprietary function.” Hill v. Urbana, 79 Ohio 

St.3d 130, 679 N.E.2d 1109 (1997), paragraph one of the syllabus. A proprietary 

function is defined, in relevant part, as a function that “promotes or preserves the 

public peace, health, safety, or welfare and that involves activities that are 

customarily engaged in by nongovernmental persons.” R.C. 2744.01(G)(1)(b). A

proprietary function includes “[t]he establishment, maintenance, and operation of 

a utility, including, but not limited to, a light, gas, power, or heat plant, a railroad, a 

busline or other transit company, an airport, and a municipal corporation water 

supply system.” R.C. 2744.01(G)(2)(c).

Before R.C. 2744.02(B)(2) will remove a political subdivision’s 

immunity, a plaintiff must establish the elements required to sustain a negligence 

action. Puffenberger v. Cleveland, 8th Dist. Cuyahoga No. 99660, 2013-Ohio-4479, 
¶ 8. A plaintiff alleging negligence must demonstrate the existence of a duty, a 

breach of that duty, proximate cause, and damages. See, e.g., Menifee v. Ohio 

Welding Prods., Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984). If negligence is 

not proven, the city is not liable.

Liability for damages against the city cannot arise as a matter of law 

except on proof that the city created a faulty or defective condition, or it had actual 

or constructive notice of the hazardous condition. Cleveland v. Amato, 123 Ohio St. 

575, 176 N.E. 227 (1931); Wilke v. Brook Park, 8th Dist. Cuyahoga No. 74636, 1999 

Ohio App. LEXIS 6055 (Dec. 16, 1999). “‘[W]here negligence revolves around the 

question of the existence of a hazard or defect, the legal princi[ple] prevails that 

notice, either actual or constructive, of such hazard or defect is a prerequisite to the 

duty of reasonable care.’” Vasquez-Cromer v. Toledo, 6th Dist. Lucas No. L-18-

1266, 2019-Ohio-5149, ¶ 17, quoting Heckert v. Patrick, 15 Ohio St.3d 402, 405, 473 

N.E.2d 1204 (1984).

In this case, there is no dispute that Boucher’s negligence claim 

directly relates to the city’s performance of a proprietary function. It is also 

undisputed that the city received actual notice of the hazardous utility-port cover on 

October 12, 2019. Nevertheless, the city argues that the evidence supporting its 

motion for summary judgment demonstrates that its agent, Wilson, responded to 

the reported hazard in a timely fashion and “secured the area for repair in a 

reasonable manner consistent with his training.” The city contends that in the 

absence of any evidence to suggest that “Wilson’s methods and decisions fell below 
an established standard of care, there is no evidence of negligent performance by a 

city employee with respect to a proprietary function.” 

In contrast, Boucher reiterates her position that there remain genuine 

issues of fact regarding whether Wilson secured the reported hazard on October 12, 

2019, as the city suggests. According to Boucher, “the evidence in this case strongly 

supports the conclusion that the city did not secure the hazardous broken [utilityport cover] until after [she] fell on October 13, 2019.” Boucher notes that (1) “three 

witnesses testified that the area had not been secured on October 13, 2019, when 

[she] fell,” (2) Wilson testified that he may have secured the area on a Sunday, and 

(3) the timestamp located on the city’s Daily Log suggests that the work was not 

performed until after she fell on Sunday, October 13, 2019.

Construing the available evidence in favor of Boucher, we agree with 

the trial court’s determination that there remain genuine issues of material fact 

regarding whether the city secured the utility-port cover before or after Boucher’s 

fall. In this case, city employees Wilson, Pankratz, and Jackson each estimated that 

members of the Trouble Department responded to West 3rd Street on October 12, 

2019, to secure the damaged utility-port cover. However, in each instance, Wilson, 

Pankratz, and Jackson did not have an independent memory of the date the 

hazardous condition was reported and could not recall the specific day of the week 

the work was performed. Rather, each employee assumed that the work was 

completed on October 12, 2019, based on the date reflected at the top of the Daily 

Log report. Because the employees’ recollection of the completed work depends 
exclusively on their interpretation of the information contained in the documentary 

evidence, a careful examination of the Daily Log report is necessary.

As previously discussed, the subject Daily Log conclusively sets forth 

the date the hazardous condition was reported to the Trouble Department, i.e.,

October 12, 2019. However, on its face, the log’s reference to the date, October 12, 

2019, does not unambiguously confirm that the work was completed that same day. 

In this regard, Jackson testified that the date reflected in the log is automatically 

generated once the dispatcher receives notice of the reported condition and creates

a Daily Log sheet. (Jackson depo. tr. at 43.) The “work done” section of the log is 

left blank and is only completed once the dispatcher is notified by other members of 

the Trouble Department that the condition has been repaired or requires a referral 

to another department. Significantly, Pankratz testified that the log is not closed out 

until the work done section is completed and the matter is resolved. (Pankratz depo. 

at tr. 28.) Pankratz further explained that the system puts a timestamp on the Daily 

Log once the work is completed and the complaint is closed out by the dispatcher. 

(Id. at tr. 28-29.) 

As set forth in the evidence attached to Boucher’s brief in opposition 

to summary judgment, the time stamp located on the bottom left portion of the Daily 

Log states “10/13/2019 — 1:44:28 p.m.” Considering the time and date of Boucher’s 

fall, i.e., just before noon on October 13, 2019, a reasonable person may conclude 

that the Daily Log report relating to the hazardous utility-port cover was not closed 

out until 1:44 p.m. on October 13, 2019. It follows that the same reasonable person 
may also conclude that the log was not closed out until October 13, 2019, because 

the area was not secured until after Boucher’s fall. 

We reiterate that summary judgment is not appropriate where the 

facts, which must be viewed in a light most favorable to the party opposing the 

motion, are subject to reasonable dispute. Friebel v. Visiting Nurse Assn. of MidOhio, 142 Ohio St.3d 425, 2014-Ohio-4531, 32 N.E.3d 413, ¶ 33. Under the foregoing 

circumstances, we reject the city’s contention that the evidence unequivocally 

establishes that the Trouble Division exercised reasonable care by “plac[ing] cones 

and tape over the utility port on October 12, 2019.” Contrary to the city’s assertion 

on appeal, the trial court’s decision is not “patently absurd,” but is premised on the 

ambiguity contained in the documentary evidence and testimony. Accordingly, we 

find Boucher has produced evidence of specific facts that establish the existence of 

an issue of material fact concerning whether the city failed to exercise reasonable 

care after receiving notice of a hazardous condition relating to its maintenance or 

operation of a proprietary function.

3. R.C. 2744.03 Defenses

Alternatively, the city asserts that “assuming arguendo that Boucher 

could prove negligence,” immunity is restored “where the property damage at issue 

is alleged to have resulted from a city employee’s negligent exercise of judgment and

discretion in determining how to use equipment, supplies, materials, personnel, 

facilities, and other resources in responding to an incident.”
Under R.C. 2744.03(A)(5), political subdivisions are not liable for

injuries resulting from the exercise of judgment or discretion in determining how to

use personnel and resources. Franks v. Lopez, 69 Ohio St.3d 345, 347-348, 632

N.E.2d 504 (1994). This court has recognized that routine decisions requiring little

judgment or discretion are not covered by R.C. 2744.03(A)(5). Ohio Quay 55 L.L.C.

v. Cleveland, 2018-Ohio-752, 107 N.E.3d 194, ¶ 27 (8th Dist.), citing Ohio Bell Tel.

Co. v. Cleveland, 8th Dist. Cuyahoga No. 98683, 2013-Ohio-270, ¶ 13. Likewise,

R.C. 2744.03(A)(5) does not protect decisions that involve inadvertence,

inattention, or unobservance. Id. Rather, “some positive exercise of judgment that

portrays a considered adoption of a particular course of conduct in relation to an

object to be achieved” is required to demonstrate an exercise of discretion for which

R.C. 2744.03(A)(5) confers immunity. Id.

The provision

operates to protect political subdivisions from liability based upon

discretionary judgments concerning the allocation of scarce resources;

itis notintended to protect conduct which requires very little discretion

or independent judgment. The law of immunity is designed to foster

freedom and discretion in the development of public policy while still

ensuring that implementation of political subdivision responsibilities

is conducted in a reasonable manner.

Hall v. Ft. Frye Local School Dist. Bd. of Edn., 111 Ohio App.3d 690, 699, 676 N.E.2d 

1241 (4th Dist.1996), citing Marcum v. Adkins, 4th Dist. Gallia No. 93CA17, 1994 

Ohio App. LEXIS 1456 (Mar. 28, 1994).

On appeal, the city asserts that the Trouble Department’s decision to 

postpone repairs until the work could be completed by the appropriate construction 
crew constituted a discretionary allocation of the city’s limited resources. According 

to the city, 

[t]he city of Cleveland Public Power Department’s policies and 

practices demonstrated a positive exercise of judgment by 

management personnel, which portrayed a considered adoption of a 

particular repair course of conduct in relation to an object to be 

achieved.

Based on the evidence set forth in this record, we find the remaining 

genuine issues of material fact render the city’s reliance on R.C. 2744.03(A)(5) to be 

unpersuasive. As stated by the trial court, the city’s arguments under R.C. 

2744.03(A)(5) rely on the presumption that members of the Trouble Department 

did, in fact, render a discretionary judgment at the scene of the hazardous condition 

on October 12, 2019. Consistent with our prior discussion, we find there exist

genuine triable issues that must be resolved before it can be determined whether 

R.C. 2744.03(A)(5) is applicable in this instance. 

III. Conclusion

Viewing the facts in the case in the light most favorable to the

nonmoving party and resolving any doubt in favor of the nonmoving party, we

cannot say that the trial court erred in concluding that the city was not entitled to

immunity from liability at the summary judgment phase of the proceedings. The

city’s first, second, third, and fourth assignments of error are overruled.

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 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.

EILEEN T. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, P.J., and

SEAN C. GALLAGHER, J., CONCUR