[Cite as Grose v. Cleveland , 2014-Ohio-4819.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 101003

MATTHEW GROSE

PLAINTIFF-APPELLEE

vs. CITY OF CLEVELAND

DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-12-785118

BEFORE: Rocco, P.J., E.A. Gallagher, J., and Stewart, J.

RELEASED AND JOURNALIZED: October 30, 2014

-i-ATTORNEYS FOR APPELLANT Barbara A. Langhenry Director of Law L. Stewart Hastings Joseph F. Scott Assistant Directors of Law City of Cleveland 601 Lakeside Avenue Room 106 Cleveland, Ohio 44114

ATTORNEY FOR APPELLEE

Jonathan S. Tsilimos Lawrence Landskroner & Associates, L.L.C. 55 Public Square Suite 1040 Cleveland, Ohio 44113KENNETH A. ROCCO, P.J.: {¶1} Defendant-appellant the city of Cleveland (“the City”) appeals from the trial court’s order denying the City’s motion for summary judgment on the basis of statutory immunity. Because plaintiff-appellee Matthew Grose has established that an exception to statutory immunity applies in this case, we affirm the trial court’s final judgment. {¶2} Because this case involves an appeal from a grant of summary judgment, we recite the relevant facts in the light most fa vorable to the nonmoving party, Grose. See Gilbert v. Summit Cty. , 104 Ohio St.3d 660, 2004-Ohio-7108, 821 N.E.2d 564, ¶ 6. {¶3} Plaintiff-appellee Grose has lived at his residence on Holmden Avenue since 2003. Holmden Avenue is a one-way street that slopes steeply downward from west to east. Grose’s home does not have a driveway, so he regularly pa rked his car along the south side of Holmden

Avenue near his home. {¶4} Grose began to notice surface water on Holmden Avenue and, on November 4, 2009, he sent an email to his c ity councilman about the water pr oblem. In the email, Grose noted that the road was sinking in, and that th ere was always a steady st ream of water running

down the street. Grose also sent the email to th e Mayor’s Action Center and to Robert Mavec, a city employee in the Streets Department. {¶5} According to Grose, the problem con tinued throughout the winter of 2009-2010. On December 2, 2010, Grose sent another email to his city councilman rega rding the problem of surfacing water on Holmden Avenue, stating that a new water leak had sprung up on the road. Grose’s concerns were forwarded to the Director of Public Utilities for the City. Grose asserts that by February 2011, the pr oblem was still not remedied.{¶6} On the night between February 1 and 2, 2011, a short but significant rise in the temperature washed away the snow and ice that had accumulated on the roadway in front of Grose’s home. On February 3, 2011, Grose drove from his home to go to work. After work, he picked up his roommate, and they headed hom e. Neither Grose nor his roommate observed any snowy or icy condition as they approached their home on Holmden Avenue. Grose parked his vehicle on the street. After exiting his vehicle, he slipped on a patch of black ice on the street, landing on his back, and sustaining injury . Both Grose and his roommate averred that there was no ice anywhere else on the roadway except in the area of roadway where Grose had slipped on the ice. This was the same area of the roadway that Grose had complained about to the City in the past. {¶7} Grose filed a complaint against the City on June 15, 2012, alleging that the City was negligent in failing to satisfy its duty under R.C. 2744.02(B)(3) to keep the public roadway on Holmden Avenue in good repair. 1 Grose obtained an expert re port from civil engineer, Victor Dozzi (“the Dozzi Report”). Dozzi determined th at on the date of the incident, the pavement

was broken in the area where Grose fell. As a result, groundwater was able to seep up through the cracks and onto the surface of the street. The Dozzi Report explained that the water that seeped through the cracks froze on the street’s su rface as it was exposed to the cold. The ice on the street was limited to the area where water had seeped up through the pavement. The Dozzi Report concluded that the failu re of the City to intercept the groundwater flow under the pavement allowed water to seep up onto the road’s surface. The Dozzi Report further concluded that if the pave ment at the site of the fall had been maintained so that it was sound and

1 Grose also maintained an alternative theory of negligence in his complaint that is not relevant this appeal.unbroken, there would have been no upward seepag e of groundwater through the pavement and

ice would not have formed on the surface. {¶8} Pierre Haddad is the City’s expert in this case and, at the time of the incident, he was working for the City as the Group Manager of the Advanced Planning and Hydraulics Unit.

Haddad testified on beha lf of the City and also prepared an expert report (“th e Haddad Report”). Like the Dozzi Report, the Ha ddad Report opined that Holmden Avenue was experiencing surfacing water from underground, and that this wa ter was finding its way out along the curb, under the pavement, and through the pavement cracks. The Haddad Report recommended that 300 feet of underdrain be installed along the nor th curb of Holmden Avenue to intercept the groundwater flow and conduct it away from the st reet. The underdrain was constructed after Grose’s fall. To date, Grose avers that the water problem remains on Holmden Avenue notwithstanding the constr uction of the underdrain. {¶9} Grose also deposed Robert Mavec, the C ity’s Commissioner of Traffic Engineering

and Commissioner of Streets. Mavec is the h ead of the Division of Streets, which is responsible for repairing potholes and sinking road ways within the City. Mavec was one of the recipients of the email from Grose that was se nt in November 2009 regarding the deteriorating condition of Holmden Avenue and the presence of water on the road. At his deposition, Mavec reviewed a photograph depicting the area of Ho lmden Road where Grose fell and admitted that the photo depicted pavement that needed to be repaired. {¶10} Following discovery, the City moved for summary judgment, a sserting sovereign immunity. The trial court denied the City’s motion. The City now appeals, setting forth a single assignment of error for our review:The trial court erred as a matter of law when it failed to grant summary judgment in favor of the City for an alleged failure to prevent naturally occurring groundwater from freezing on a public road. {¶11} Because this case involves an order gran ting summary judgment, we review the

trial court’s order de novo. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Under Civ.R. 56(C), summary judgme nt should be granted if (1) there is no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, and that c onclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor. Gilbert v. Summit Cty. , 104 Ohio St.3d 660, 2004-Ohio-7108, 821 N.E.2d 564, at ¶ 6. {¶12} The moving party carries the initial burden of setting forth specific facts that demonstrate his or her entitlement to summary judgment. Dresher v. Burt , 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the movant fails to meet this burden, the court should not grant summary judgment. If the movant does m eet its burden, summary judgment is warranted only if the nonmovant fails to establish the exis tence of a genuine issue of material fact. Id. at

293. {¶13} R.C. Chapter 2744 grants governmental imm unity to political subdivisions subject to certain exceptions, and we apply a three-tiered analysis to determine whether immunity applies. Fedarko v. Cleveland , 8th Dist. Cuyahoga No. 100223, 2014-Ohio-2531, ¶ 10. The first tier of the analysis applies the “general rule that a political subdivision is immune from liability incurred in performing either a govern mental function or pr oprietary function.”

Caraballo v. Cleveland Metro. School Dist. , 8th Dist. Cuyahoga No. 99616, 2013-Ohio-4919, ¶ 10. The second tier looks to whether an excep tion to immunity exists under R.C. 2744.02(B).Fedarko at ¶ 10. Under the third tier, if an excep tion does exist, the political subdivision has the burden of demonstrating that one of the defenses under R.C. 2744.03 applies. Id. {¶14} In the instant case, the parties agree th at the City is a political subdivision under

tier one. The issue here is whether an ex ception to immunity exists under R.C. 2744.02(B). Specifically, the parties dispute whet her the following exception applies: Except as otherwise provided in sec tion 3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property caused by their negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads * * *. R.C. 2744.02(B)(3). (Emphasis added.) {¶15} The parties agree that groundwater is flowing downhill under Holmden Avenue. The parties also agree that the ice formed as a result of that water seeping up through the cracks in the roadway. But the City argues that Gr ose’s case is actually about water drainage as opposed to the condition of the road’s surface. In support of its argume nt, the City contends that it was able to remedy the problem on Holmden Avenue by installing a new drain system to reroute the groundwater away from the surface of Holmden Avenue. Grose has presented evidence that contradicts the City’s assertion that the drain system has remedied the problem of water seeping up through the road’s cracks onto Holmden Avenue. But regardless, the City’s argument misses the mark; because Grose’s complain t asserts that he was injured as a result of the City’s negligent failure to keep the public road in repair, we must determine whether the record could support such a claim. See Fink v. Twentieth Century Homes, Inc. , 8th Dist. Cuyahoga No. 99550, 2013-Ohio-4916, ¶ 23 (analyzing whether the record supported plaintiff’s claim categorization in a statutory immunity case). {¶16} The proper inquiry is whether reasonabl e minds could conclude that the icy

condition on Holmden Avenue would not have exis ted had the City repaired the cracks on theroad. 2 See Todd v. Cleveland , 8th Dist. Cuyahoga No. 98333, 2013-Ohio-101, ¶15 (explaining that keeping public roadways “in repair” under R.C. 2744.02(B )(3) includes repairing holes and crumbling pavement when a road is de teriorating). We answer that question in the

affirmative. {¶17} Grose points to evidence from both civ il engineering experts to support his contention that the failure to repair the cracks in the road caused the icy condition. Both experts agreed that the ice that Grose fell on was caused by surfacing water seeping up through the cracks in the street. In his deposition, Haddad stat ed that the source of the water had to be from water surfacing through cracks and holes in the roadway. The Dozzi Report included photographs of the area of the road where Grose fe ll. These photographs show that this area of

the road contained visible crack s and holes. The Dozzi Report c oncluded that if the pavement

at the site of the fall had been maintained so that it was sound and unbroken, there would have been no upward seepage of groundwater through th e pavement and ice would not have formed on

the surface.

2 Grose argues that we should analyze this case under the standard set forth in Grimmer v. Rocky River , 8th Dist. Cuyahoga No. 94271, 2010-Ohio-4683. Although that case involved ice on a roadway, the standard we articulated in that case was used to determine whether the ice constituted a nuisance under the old version of R.C. 2744.02(B)(3). Unlike the instant case, in Grimmer the plaintiff did not contend that the road itself was in disrepair. Rather, the ice on the road was caused by water flowing from a leaky fire hydrant. We decline to apply the test articulated in Grimmer , because it is ill-suited for analyzing whether statutory immunity applies when it is alleged that an icy condition is caused by the condition of the road itself. We similarly decline to apply a case that the City asks us to rely on, Howard v. Miami Twp. Fire Div. , 119 Ohio St.3d 1, 2008-Ohio-2792, 891 N.E.2d 311, because that case also deals with an “ obstruction ” on the road as opposed to an alleged failure to maintain the public roadway. See Todd v. Cleveland , 8th Dist. Cuyahoga No. 98333, 2013-Ohio-101, 

### ¶ 14 ( “ The terms ‘ in repair ’ and ‘ obstructions ’ exist separately under R.C. 2744.02(B)(3) and provide two separate, independent bases for precluding statutory immunity with respect to public roads. ” ).{¶18} The City argues that Grose cannot prev ail because roadways are not impervious to water, nor designed to neve r crack. The City also asserts that resurfacing Holmden Avenue would not solve the ongoing problem of the gr oundwater seeping up onto the road. But in the instant case, Grose has presented evidence that the cracks in the road where he fell constituted a road in “disrepair.” Mavec conceded as much in his deposition. Both experts agreed that the water seeped through those cracks in the road. A reasonable factfinder c ould certainly conclude that the icy condition would not ha ve existed if the City had repaired the cracks. And while the City asserts that a lasting solution to the probl em would require a redesign of the road or a redesign of the road’s drainage system, the City ’s brief does not support this contention with any

citation to the record. Our review of the record l eads us to conclude that there is a genuine issue

of material fact on whether the icy condition would have existed ha d the City fixed the cracks in

the road. {¶19} But that is not the end of the analysis because, under the plain language of R.C. 2744.02(B)(3), the exception applies only if the City was negligent in failing to repair the cracks

on Holmden Avenue. See R.C. 2744.02(B)(3) (exception to immunity exists for “ negligent failure to keep public roads in repair”); Todd v. Cleveland , 8th Dist. Cuyahoga No. 98333, 2013-Ohio-101, ¶ 19. In a claim for negligence, a claimant is required to produce evidence demonstrating the existence of a duty, a breach of that duty, and that the breach was the proximate cause of the claimant’s injury. See Feldman v. Howard , 10 Ohio St.2d 189, 196, 226 N.E.2d 564 (1967). And a “‘municipal corporati on is liable only for negligence in creating a faulty condition or in failing to repair, remove or guard against defects after receiving actual or

constructive notice of their existence.’” 3 Wilson v. Cleveland , 8th Dist. Cuyahoga No. 98035,

3 However, we question whether notice should continue to be required.2012-Ohio-4289, 979 N.E.2d 356, ¶ 23, quoting Graves v. E. Cleveland , 8th Dist. Cuyahoga No. 70675, 1997 Ohio App. LEXIS 326 (Jan. 30, 1997). {¶20} The City’s argument in support of summa ry judgment focused solely on whether the icy condition was caused by a failure to repair the road, and at no point has the City made any argument on the issue of negligence. The City has, therefore, waived the issue of negligence for purposes of summary judgment. For the aforem entioned reasons, we conclude that this case falls within the R.C. 2744.02(B)(3) exception to imm unity. Under tier three, the City has not argued that any of the defenses under R.C. 2744.03 a pply in this case. We, therefore, conclude that the trial court correctly granted summary judgment in this case and so we overrule the sole assignment of error. {¶21} Judgment affirmed. It is ordered that appellee recove r from appellant costs herein taxed.

The court finds there were reas onable 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

Because the City has an affirmative duty to keep its roads in repair, the City should take affirmative steps to discover defects.Rule 27 of the Rules of Appellate Procedure.

__________________________________________ KENNETH A. ROCCO, PRESIDING JUDGE EILEEN A. GALLAGHER, J., CONCURS; MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY