[Cite as Todd v. Cleveland, 2013-Ohio-101.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 98333




                             TAMMY L. TODD, ET AL.
                                                       PLAINTIFFS-APPELLEES

                                                 vs.

                                CITY OF CLEVELAND
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-758883

        BEFORE: Rocco, J., Stewart, A.J., and Keough, J.

        RELEASED AND JOURNALIZED: January 17, 2013
ATTORNEYS FOR APPELLANT

Barbara A. Langhenry
Interim Director of Law

By: Jerome A. Payne, Jr.
Assistant Director of Law
City Hall–Room 106
601 Lakeside Avenue
Cleveland, Ohio 44114


ATTORNEY FOR APPELLEES

Scott I. Levey
Mondello & Levey
55 Public Square
Suite 1616
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:

       {¶1} Plaintiff Tammy Todd was driving on a street in the City of Cleveland when

she hit a pothole, lost control of her vehicle, and struck a utility pole. She brought this

action against the city seeking damages for the injuries she sustained in the accident,

alleging that the city had negligently failed to maintain the road and that the city’s

negligence was the proximate cause of her injuries.

       {¶2} The city filed a motion for summary judgment in which it argued that it was

immune from liability under R.C. 2744.02(A)(1) and was otherwise entitled to judgment

as a matter of law because the danger presented by the pothole was open and obvious.

The trial court denied the city’s motion, stating that there were genuine issues of material

fact, and the city appealed.

        {¶3} The city raises three assignments of error arising out of the denial of its

motion for summary judgment. The city argues that the trial court erred in denying its

motion for summary judgment because the alleged hazardous pothole was not an

“obstruction” under R.C. 2744.02(B)(3), the only potentially applicable exception to

statutory immunity.     The city also contends that the trial court improperly denied its

motion for summary judgment because it did not have actual or constructive notice of the

alleged hazardous pothole prior to Todd’s accident and the pothole was open and obvious,

such that the city owed no duty to Todd to protect her from any alleged danger presented

by the pothole.

       {¶4} Finding no merit to the city’s first and second assignments of error and
concluding that we lack jurisdiction to consider the city’s third assignment of error, we

affirm the trial court’s denial of summary judgment.

       {¶5} An appeal of a trial court’s summary judgment ruling is subject to a de novo

standard of review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336,

671 N.E.2d 241. We accord no deference to the trial court’s decision and independently

review the record to determine whether summary judgment is appropriate.

       {¶6} Under Civ.R. 56, summary judgment is appropriate when (1) no genuine

issue as to any material fact exists, (2) the party moving for summary judgment 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 only one conclusion that is adverse to the

nonmoving party.

       {¶7} The moving party carries an 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 moving party fails to meet this burden,

summary judgment is not appropriate; if the moving party meets this burden, summary

judgment is appropriate only if the nonmoving party fails to establish the existence of a

genuine issue of material fact. Id. at 293.

       {¶8} The city’s first assignment of error states:

              1.  THE TRIAL COURT ERRED WHEN IT DENIED
              THE CITY OF CLEVELAND’S MOTION FOR
              SUMMARY JUDGMENT BECAUSE THE ALLEGED
              HAZARD IS NOT AN OBSTRUCTION.
        {¶9} A “three-tiered” analysis is applied in determining whether a political

subdivision is entitled to immunity from civil liability pursuant to R.C. Chapter 2744.

Hubbard v. Canton City Bd. of Edn., 97 Ohio St.3d 451, 2002-Ohio-6718, 780 N.E.2d 54,

¶ 10.    We must first determine whether the entity claiming immunity is a political

subdivision and whether the alleged harm occurred in connection with a governmental or

proprietary function. If the political subdivision is entitled to immunity, we must then

consider whether the plaintiff has shown that any of the exceptions to immunity set forth

in R.C. 2744.02(B) apply. If an exception to sovereign immunity applies, we must

consider whether the political subdivision can assert one of the defenses to liability under

R.C. 2744.03.

        {¶10} R.C. 2744.02(A)(1) establishes a general grant of sovereign immunity,

providing that a political subdivision is not liable for damages for injury, death, or loss to

person or property incurred in connection with the performance of a governmental or

proprietary function.      The maintenance and repair of roads is a “governmental

function.” R.C. 2744.01(C)(2)(e).

        {¶11} R.C. 2744.02(B)(3), however, provides an exception to the general grant of

sovereign immunity for injuries or losses resulting from the “negligent failure to keep

public roads in repair and other negligent failure to remove obstructions from public

roads * * * .”

        {¶12} In its first assignment of error, the city argues that a pothole is not an

“obstruction” as contemplated in R.C. 2744.02(B)(3), and that, therefore, the public roads
exception in R.C. 2744.02(B)(3) does not apply to Todd’s claim. The city cites Howard

v. Miami Twp. Fire Div., 119 Ohio St.3d 1, 2008-Ohio-2792, 891 N.E.2d 311, for the

proposition that “obstruction” as used in the statute means “an obstacle that blocks or

clogs the roadway and not merely a thing or condition that hinders or impeded the use of

the roadway or that may have the potential to do so.” Id. at ¶ 30.        The city maintains

that because there was no evidence that the pothole Todd encountered “blocked or

clogged traffic,” the pothole was not an “obstruction.”

       {¶13} There is no statutory definition of “obstructions.” The city’s argument that

a pothole does not constitute an obstruction is debatable. See Crabtree v. Cook, 196

Ohio App.3d 546, 2011-Ohio-5612, 964 N.E.2d 473, ¶ 26 (10th Dist.) (proposition that

potholes “could never as a matter of law” rise to the level of “obstructions” under R.C.

2744.02(B)(3) would constitute “an overly broad exclusion from liability”). However,

we need not decide that issue. R.C. 2744.02(B)(3) creates a separate exception for

injuries or losses caused by the “negligent failure to keep public roads in repair.”

       {¶14} If we interpret R.C. 2744.02(B)(3) to give effect to all of its words, it is

possible for a road to be in good repair, yet temporarily obstructed by something like a

fallen branch. 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.        See Bonace v. Springfield Twp., 179 Ohio

App.3d 736, 2008-Ohio-6364, 903 N.E.2d 683, ¶ 29 (7th Dist.); Crabtree at ¶ 27

(“negligent failure to keep public roads in repair” is an alternative basis for liability and
“imposes its own distinct duty of care upon the municipality”).

       {¶15} The term “in repair” is likewise not defined by the statute.            When

interpreting R.C. 305.12, a statute authorizing suits against a board of county

commissioners for failure to keep roads “in proper repair,” the Ohio Supreme Court held

that “the intent of the General Assembly was to place a duty on the commissioners only in

matters concerning either the deterioration or disassembly of county roads and bridges.”

Heckert v. Patrick, 15 Ohio St.3d 402, 406, 473 N.E.2d 1204 (1984). Consistent with

Heckert, the “in repair” language contained in R.C. 2744.02(B)(3) has been interpreted to

include “fixing holes or crumbling pavement,” i.e., repairing potholes, when a road is

deteriorating. Crabtree, 2011-Ohio-5612, ¶ 27, citing Bonace, 179 Ohio App.3d 736,

2008-Ohio-6364, 903 N.E.2d 683, ¶ 29.      A city, therefore, has a duty to repair potholes

that deteriorate into a potentially hazardous condition. Gomez v. Cleveland, 8th Dist. No.

97179, 2012-Ohio-1642, ¶ 9.

       {¶16} Because the city could be liable under R.C. 2744.02(B)(3) if the hazardous

pothole that allegedly caused Todd’s injury was the result of the city’s “negligent failure

to keep public roads in repair,” regardless of whether the pothole also constituted an

“obstruction” within the meaning of R.C. 2744.02(B)(3), the city’s first assignment of

error is overruled.

       {¶17} The city’s second assignment of error states:

       2.   THE TRIAL COURT ERRED WHEN IT DENIED THE CITY OF
       CLEVELAND’S MOTION FOR SUMMARY JUDGMENT BECAUSE
       THE CITY DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE
       OF THE ALLEGED HAZARD.
       {¶18} In its second assignment of error, the city argues that the trial court erred in

denying its motion for summary judgment because there was no evidence the city had

notice of the alleged hazardous pothole prior to Todd’s accident.         As such, the city

argues, it had no duty to repair the roadway, the exception in R.C. 2744.02(B)(3) does not

apply, and it “retains its cloak of immunity.”

       {¶19} The R.C. 2744.02(B)(3) exception to immunity centers on the “negligent”

failure to maintain public roads.   To establish negligence, a duty, a breach of that duty,

proximate cause, and damages must be shown. See, e.g., Menifee v. Ohio Welding

Prods., Inc., 15 Ohio St.3d 75, 84, 472 N.E.2d 707 (1984).

       {¶20} The city argues that it had no duty to repair the road where Todd’s accident

occurred because it lacked notice of any hazardous potholes.            “Where negligence

revolves around the existence of a hazard or defect, a duty of reasonable care does not

arise unless the defendant has notice, either actual or constructive, of such hazard or

defect.” Davis v. Akron, 9th Dist. No. 19553, 2000 Ohio App. LEXIS 843, *4 (Mar. 8,

2000), citing Heckert, 15 Ohio St.3d at 405; see also Gomez, 2012-Ohio-1642, at ¶ 7 (“A

municipality’s liability for damages for failing to perform the duty of alleviating faulty

road conditions ‘arises only upon proof that its agents or officers actively created the

faulty condition, or that it was otherwise caused and the municipality has actual or

constructive notice of its existence.’”), quoting Cleveland v. Amato, 123 Ohio St. 575, 9

Ohio Law Abs. 606, 176 N.E. 227 (1931); Wilson v. Cleveland, 8th Dist. No. 98035,

2012-Ohio-4289, ¶ 23 (“A ‘municipal corporation is liable only for negligence * * * in
failing to repair, remove or guard against defects after receiving actual or constructive

notice of their existence.’”), quoting Graves v. E. Cleveland, 8th Dist. No. 70675, 1997

Ohio App. LEXIS 326, *4 (Jan. 30, 1997).          {¶21} Thus, in order to prove the city’s

breach of its duty to maintain public roads, Todd would have to establish that, prior to her

accident, the city had actual or constructive notice of the hazardous road conditions that

allegedly caused the accident.

       {¶22} In support of its constructive notice argument, the city submitted an

affidavit, indicating that a search of records maintained by the city’s division of streets

revealed no complaints, incidences, or calls regarding potholes, chuckholes, or other

hazardous conditions near the accident site for the six-and-a-half-month period prior to

Todd’s accident. The city also offered deposition testimony from Todd, in which she

testified that it had been “[m]aybe a year, year-and-a-half” since she had last driven on the

road where she had the accident and admitted that she had no firsthand knowledge

regarding how long the potholes had been in existence prior to her accident. The city

also submitted photographs of the road conditions at the time of Todd’s accident, which

the city argues “do not represent anything unusual for a northeast city” and “bear out that

it is something that could have been avoided.”

       {¶23} Todd stipulated that the city lacked actual notice of the potholes, but

maintains that genuine issues of material fact exist regarding whether the city had

constructive notice of the alleged deteriorating and hazardous road conditions prior to her

accident.   Todd argues that based on the way in which potholes develop in Northeast
Ohio and the large-truck traffic on the road from a nearby construction project, it could be

reasonably inferred that “the road condition did not occur over night.”         She further

contends that the city should have been aware of the deteriorating road conditions

because a busy city vehicle impound lot was located less than four-tenths of a mile from

the site of her accident and because police officers patrolling the streets, sanitation

workers, tow truck drivers, snow plow drivers, and other city workers should have driven

down the road and observed the hazardous road condition at some point prior to her

accident.

         {¶24} A person has constructive notice of a defect when the defect existed for

such a period of time that it would have been discovered in the exercise of reasonable

care. Bello v. Cleveland, 106 Ohio St. 94, 100, 138 N.E. 526 (1922).           Todd is not

required by Civ.R. 56(C) to prove her case; she is required only to point out evidence in

the record that demonstrates the city is not entitled to summary judgment.

       {¶25} When viewing the evidence presented in this case in the light most favorable

to Todd, we find that genuine issues of material fact exist regarding whether the city was

negligent in failing to repair the roadway prior to Todd’s accident and, specifically,

whether the city had constructive notice of the hazardous road conditions prior to the

accident.

       {¶26} To defeat summary judgment on the issue of constructive notice, Todd

needed to point to some evidence in the record

              “indicating that (1) the unsafe condition existed in such a
              manner that it could or should have been discovered by the
            city, (2) the condition existed for such a length of time to have
            been discovered by the city, and (3) if it had been discovered,
            it would have created a reasonable apprehension of potential
            danger or an invasion of private rights.”                 Gomez,
            2012-Ohio-1642, at ¶ 7, quoting Nanak v. Columbus, 121
            Ohio App.3d 83, 86, 698 N.E.2d 1061 (10th Dist.1997), citing
            Beebe v. Toledo, 168 Ohio St. 203, 151 N.E.2d 738 (1958),
            paragraph two of the syllabus.
      {¶27} The materials submitted by the parties on summary judgment include several

photographs of the accident scene, including photographs showing multiple potholes and

deteriorating road conditions that were taken by Todd’s husband on the day of the

accident. The copies of the photographs in the record are of poor quality and do not

allow us to see the specific size or depth of the potholes struck by Todd’s vehicle. 1

However, they show the existence and location of multiple potholes and a deteriorating

roadway.2

      {¶28} The record also contains testimony from Todd regarding the road conditions


      1
       In addition to the photographs of the accident scene that were submitted by
the parties with their briefs on summary judgment, Todd appended photographs to
her appellate brief showing a ruler measuring the width and depth of one of the
potholes. These photographs were not offered into evidence below and should not
have been appended to Todd’s brief. “A reviewing court cannot add matter to the
record before it, which was not part of the trial court’s proceedings, and then decide
the appeal on the basis of the new matter.” State v. Ishmail, 54 Ohio St.2d 402,
377 N.E.2d 500 (1978), paragraph one of the syllabus. Accordingly, these
photographs shall not be considered by this court.
      2 In an effort to establish the city’s appreciation of the danger “once they [sic]
had ‘actual’ notice of the road conditions,” Todd also attached photographs to her
brief in opposition to summary judgment that show the road after it had been
repaired by the city following Todd’s accident. This violated Evid.R. 407, which
prohibits the introduction of evidence of subsequent remedial measures to prove
negligence or culpable conduct. Accordingly, these photographs have not been
considered in determining whether the city was entitled to summary judgment.
and sequence of events leading up to her accident. Todd testified she “saw that the road

was kind of not good”; she hit one pothole and then another. Todd testified that she did

not know the size or depth of the potholes, but the potholes were of sufficient size and

location that when her vehicle struck them, she lost control of the vehicle and hit a utility

pole. Based on the photographs from the day of the accident showing the potholes and

deteriorating road conditions, Todd’s testimony regarding the accident, and the proximity

of the potholes to a busy city impound lot, a factfinder could reasonably infer that the

roadway was unsafe and that the hazardous road condition had existed for a sufficient

period of time that someone from the city with the appropriate authority or responsibility

to maintain the roadway, in the exercise of reasonable care, should have driven down that

road, noticed the potential danger presented by the potholes, and taken action to remedy

them prior to Todd’s accident.       Todd has, therefore, put forth sufficient evidence

demonstrating a genuine issue of fact regarding whether the city had constructive notice

of the hazardous road condition prior to her accident.        As such, genuine issues of

material fact exist as to the applicability of the public roads exception to statutory

immunity set forth in R.C. 2744.02(B)(3), and the trial court properly denied the city’s

motion for summary judgment.

       {¶29} The city’s second assignment of error is overruled.

       {¶30} The city’s third assignment of error states:

              3.  THE TRIAL COURT ERRED WHEN IT DENIED
              THE CITY OF CLEVELAND’S MOTION FOR
              SUMMARY JUDGMENT BECAUSE THE ALLEGED
              HAZARD WAS OPEN AND OBVIOUS.
       {¶31} In its third assignment of error, the city argues that trial court erred in

denying its motion for summary judgment because Todd’s negligence claim is barred by

the open and obvious doctrine. The city argues that because Todd testified that she saw

the pothole (but was just uncertain as to its size or depth), the pothole was open and

obvious, and the city owed no duty to Todd as a matter of law to protect her from any

danger presented by the pothole. This court lacks jurisdiction to address the city’s

argument based on the open and obvious doctrine.

      {¶32} R.C. 2744.02(C) grants appellate courts subject matter jurisdiction to

address the merits of a denial of summary judgment based upon immunity. Hubbell v.

Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878. R.C. 2744.02(C) states that

an order denying “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.” However, appellate review under R.C. 2744.02(C)

is limited to the denial of immunity. See, e.g., Leasure v. Adena Local School Dist., 4th

Dist. No. 11CA3249, 2012-Ohio-3071 (citing cases).        When appealing a denial of

immunity under R.C. 2744.02(C), a party may not raise other alleged errors concerning

the denial of summary judgment. Id.

      {¶33} Because denial of a summary judgment motion based on the open and

obvious doctrine presents an issue of common law negligence, this court does not have

jurisdiction to consider the merits of such an argument until the decision becomes final.

See, e.g., Leasure, supra (trial court’s denial of summary judgment based on open and
obvious doctrine did not deny appellant the benefit of an alleged immunity; therefore,

appellate court lacked jurisdiction to review it under R.C. 2744.02(C)) (citations omitted);

McGuire v. Lorain, 9th Dist. No. 10CA009893, 2011-Ohio-3887, ¶ 2-3 (no jurisdiction to

consider argument based on open and obvious doctrine).

       {¶34} Accordingly, this court lacks jurisdiction to consider the city’s third

assignment of error.

       {¶35} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



____________________________________
KENNETH A. ROCCO, JUDGE

KATHLEEN ANN KEOUGH, J., CONCURS;
MELODY J. STEWART, A.J., DISSENTS
(SEE ATTACHED OPINION)


MELODY J. STEWART, A.J., DISSENTING:

       {¶36} The majority presents a puzzling analysis on the issue of constructive notice.

 It correctly notes that the photographs purporting to show the size and depth of the

pothole that Todd’s vehicle allegedly struck cannot be considered because they were

added to the record on appeal.      It also correctly says that the photographs that are
properly in the record are of such poor quality that they are useless in establishing the size

and depth of the potholes that Todd struck.         Yet despite the poor quality of these

photographs, the majority says that they show “the existence and location of multiple

potholes and a deteriorating roadway.” The existence of other potholes in the road that

Todd’s car did not strike is irrelevant. If the photographs do not show the size and depth

of the pothole that Todd struck, Todd has failed to show that the pothole was of sufficient

size that the city was on constructive notice of its existence.

        {¶37} The majority also states that the city had constructive notice of the pothole

that Todd struck because the proximity of the pothole to a city impound lot was enough

that “someone from the city with the appropriate authority or responsibility to maintain

the roadway, in the exercise of reasonable care, should have driven down that road,

noticed the potential danger presented by the potholes, and taken action to remedy them *

* *.”    The majority     does not identify who this “someone” with responsibility to

maintain the roadway might be. Certainly, impound lot employees and tow truck drivers

(who are independent contractors) would not have any responsibility to maintain a city

street. Perhaps the majority refers to police officers going back and forth from the

impound lot, but Todd offered no evidence that police officers have any responsibility to

maintain city streets, so their knowledge of potholes would not be enough to put the city

on notice. Cleveland v. Payne, 72 Ohio St. 347, 74 N.E. 177, (1905) paragraph two of

the syllabus.

        {¶38} Finally, it is unclear why the majority is willing to accept Todd’s assertion
that the potholes develop over time when she presented no expert evidence to support the

assertion that the pothole she struck had been in existence for a long enough period of

time that the city had constructive notice of it. Potholes can develop instantly from

heavy vehicles, and the majority’s acknowledgment that the road was used by snow

plows, tow trucks, and sanitation trucks would just as likely suggest that the pothole that

Todd struck could have formed just prior to her hitting it. While it is true that Todd, as

the nonmoving party, is entitled to all reasonable inferences for purposes of summary

judgment, those inferences must be based on specific facts, not speculation. See Civ.R.

56(E); Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988). As the

majority concedes, Todd failed to provide a legible photograph of the pothole, so there is

simply no evidence upon which the majority can reasonably find that Todd offered

evidence from which reasonable minds could believe that the pothole that she struck had

been in existence long enough that the city could be charged with constructive notice. I

respectfully dissent.
