[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 44113 
KENNETH 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 favorable 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 parked 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 city councilman about the water problem. In the email, Grose 

noted that the road was sinking in, and that there was always a steady stream of water running 

down the street. Grose also sent the email to the Mayor’s Action Center and to Robert Mavec, a 

city employee in the Streets Department. 

{¶5} According to Grose, the problem continued throughout the winter of 2009-2010. 

On December 2, 2010, Grose sent another email to his city councilman regarding 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 problem 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 home. 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 report from civil engineer, Victor 

Dozzi (“the Dozzi Report”). Dozzi determined that 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 surface 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 failure 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 pavement 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 seepage 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 behalf of the City and also prepared an expert report (“the Haddad Report”). 

Like the Dozzi Report, the Haddad Report opined that Holmden Avenue was experiencing 

surfacing water from underground, and that this water 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 north curb of Holmden Avenue to intercept the 

groundwater flow and conduct it away from the street. The underdrain was constructed after 

Grose’s fall. To date, Grose avers that the water problem remains on Holmden Avenue 

notwithstanding the construction of the underdrain. 

{¶9} Grose also deposed Robert Mavec, the City’s Commissioner of Traffic Engineering 

and Commissioner of Streets. Mavec is the head of the Division of Streets, which is 

responsible for repairing potholes and sinking roadways within the City. Mavec was one of the 

recipients of the email from Grose that was sent 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 Holmden 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, asserting 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 granting 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 judgment 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 conclusion 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 meet its burden, summary judgment is warranted 

only if the nonmovant fails to establish the existence of a genuine issue of material fact. Id. at 

293. 

{¶13} R.C. Chapter 2744 grants governmental immunity 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 governmental function or proprietary function.” 

Caraballo v. Cleveland Metro. School Dist., 8th Dist. Cuyahoga No. 99616, 2013-Ohio-4919, ¶ 

10. The second tier looks to whether an exception to immunity exists under R.C. 2744.02(B). 
Fedarko at ¶ 10. Under the third tier, if an exception 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 that the City is a political subdivision under 

tier one. The issue here is whether an exception to immunity exists under R.C. 2744.02(B). 

Specifically, the parties dispute whether the following exception applies: 

Except as otherwise provided in section 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 Grose’s case is actually about water drainage as 

opposed to the condition of the road’s surface. In support of its argument, 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 complaint 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 reasonable minds could conclude that the icy 

condition on Holmden Avenue would not have existed had the City repaired the cracks on the 
road. 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 deteriorating). We answer that question in the 

affirmative. 

{¶17} Grose points to evidence from both civil 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 stated 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 fell. These photographs show that this area of 

the road contained visible cracks and holes. The Dozzi Report concluded 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 the 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 prevail because roadways are not impervious 

to water, nor designed to never crack. The City also asserts that resurfacing Holmden Avenue 

would not solve the ongoing problem of the groundwater 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 could certainly conclude 

that the icy condition would not have existed if the City had repaired the cracks. And while the 

City asserts that a lasting solution to the problem 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 leads us to conclude that there is a genuine issue 

of material fact on whether the icy condition would have existed had 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 corporation 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 summary 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 aforementioned reasons, we conclude that this case 

falls within the R.C. 2744.02(B)(3) exception to immunity. Under tier three, the City has not 

argued that any of the defenses under R.C. 2744.03 apply 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 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 

 

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