[Cite as Kelly v. Drosos, 2013-Ohio-2535.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98974



                                        KEVIN KELLY
                                             PLAINTIFF-APPELLANT

                                              vs.


                                   PERICLES DROSOS
                                             DEFENDANT-APPELLEE




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-757585

        BEFORE: Kilbane, J., Stewart, A.J., and Blackmon, J.

        RELEASED AND JOURNALIZED:                   June 20, 2013
ATTORNEYS FOR APPELLANT

Christian R. Patno
Nicholas M. Dodosh
Susan C. Stone
McCarthy, Lebit, Crystal & Liffman
101 West Prospect Avenue
Suite 1800
Cleveland, Ohio 44115

ATTORNEYS FOR APPELLEE

Todd M. Haemmerle
Jamie A. Price
Gallager Sharp
6th Floor Bulkley Building
1501 Euclid Avenue
Cleveland, Ohio 44115
MARY EILEEN KILBANE, J.:

       {¶1} Plaintiff-appellant, Kevin Kelly (“Kelly”), appeals from the order of the

trial court that awarded summary judgment to defendant, Pericles Drosos (“Drosos”), in

Kelly’s action for injuries he sustained after he tripped and fell on a public sidewalk. For

the following reasons, we reverse and remand for further proceedings consistent with this

opinion.

       {¶2} On September 7, 2009, Kelly exited Pug Mahones at 17621 Detroit Avenue,

Lakewood. He tripped and fell, dislocating and fracturing his elbows. Kelly filed a

complaint against Drosos,1 owner of the building, alleging that the sidewalk and brick

pavers in front of Pug Mahones had a defect, in excess of two inches, and that Drosos

negligently failed to repair the defect, in violation of common law duties and Section

903.10 of the Lakewood Codified Ordinances.

       {¶3} Drosos denied liability and moved for summary judgment on July 16, 2012,

supported by the deposition testimony of Drosos, Kelly, and Lakewood Police Officer

Donald Mladek (“Mladek”). In relevant part, Drosos presented evidence that Kelly was

given permission to enter Pug Mahone’s after closing so that he could use the restroom,

that a police officer who arrived on the scene and spoke with Kelly detected a strong odor


       1Kelly   also sued Droshow, L.L.C., but later dismissed his claim against this
entity.
of alcohol, Kelly had slurred speech and bloodshot eyes, that Kelly stated that he didn’t

know what he had tripped on, and that Drosos had no prior notice of the defect and was

not liable under Elkins v. Lakewood, 8th Dist. No. 73778, 1998 Ohio App. LEXIS 5585,

at *2 (Nov. 25, 1998).

      {¶4} In opposition, Kelly presented evidence that the area where he fell is a

tripping hazard because there are missing and protruding brick pavers in excess of two

inches. Kelly also presented an affidavit from the property manager of a nearby parcel

who averred that the defect has existed for at least four years. Kelly also presented

evidence that the location was dimly lit, and that Kelly was unaware of the defect as he

exited Pug Mahones.

      {¶5} On September 17, 2012, the trial court awarded Drosos summary judgment.

In support of its decision, the court cited to this court’s decision in Feorene v. Robert C.

Barney, DVM, Inc., 8th Dist. No. 97753, 2012-Ohio-3461. In this case, the court applied

Section 903.10 of the Lakewood Codified Ordinances and concluded that summary

judgment was properly awarded to the defendant where the city did not cite the defendant

for a defective sidewalk until after the incident at issue, the defect was two inches, and

there was no evidence that the defendant affirmatively created or negligently maintained

the defective sidewalk.

      {¶6} Kelly now appeals, assigning the following errors for our review:




                                 Assignment of Error 1
      The trial court erred in not finding that Appellee was negligent per se for
      violating Lakewood Codified Ordinance Section 903.10 because Appellee
      knew or should have known that the sidewalk he was responsible for was
      defective and failed to reasonably repair the defects in the sidewalk.

                                 Assignment of Error 2

      The trial court erred in granting Appellee’s Motion for Summary Judgment

      as genuine issues of fact exist as to whether Appellee is liable for having

      actual or constructive notice of a defect in a public sidewalk negligently

      maintained in excess of two (2) inches that caused injury to Kelly.

      {¶7} With regard to procedure, we note that a reviewing court reviews an award

of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,

1996-Ohio-336, 671 N.E.2d 241; Mitnaul v. Fairmount Presbyterian Church, 149 Ohio

App.3d 769, 2002-Ohio-5833, 778 N.E.2d 1093 (8th Dist.). Therefore, this court applies

the same standard as the trial court, 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. Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12, 467 N.E.2d 1378 (6th

Dist.1983).

      {¶8} Pursuant to Civ.R. 56(C), summary judgment is proper if: (1) No genuine

issue as to any material fact remains to be litigated; (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 viewing such evidence most strongly in favor of the

party against whom the motion for summary judgment is made, that conclusion is adverse
to that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267

(1977).

       {¶9} Once a moving party satisfies its burden of supporting its motion for

summary judgment with sufficient and acceptable evidence pursuant to Civ.R. 56(C), the

nonmoving party must set forth specific facts, demonstrating that a genuine triable issue

exists to be litigated for trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447,

449, 1996-Ohio-211, 663 N.E.2d 639.

       {¶10} With regard to the substantive law, we note in order to establish a claim of

negligence, a plaintiff must show (1) the existence of a duty, (2) a breach of duty, and (3)

an injury proximately resulting therefrom.   Armstrong v. Best Buy Co., 99 Ohio St.3d 79,

2003-Ohio-2573, 788 N.E.2d 1088. Thus, it is incumbent upon the plaintiff to identify a

negligent act or omission. Stamper v. Middletown Hosp. Assn., 65 Ohio App.3d 65,

67-68, 582 N.E.2d 1040 (12th Dist.1989).

       {¶11} Normally, the owner of property that abuts a public sidewalk is not liable

for injuries sustained by pedestrians using the sidewalk because the duty to keep streets,

including sidewalks, in repair rests upon municipalities and not upon the abutting owners.

 Allen v. Rankin, 4th Dist. No. 12CA10, 2013-Ohio 456; Morgan v. Gracely, 4th Dist.

No. 05CA36, 2006-Ohio-2344, ¶ 9; Feorene, 8th Dist. No. 97753, 2012-Ohio-3461. In

Feorene, this court recognized the following three exceptions to that no-duty rule:

       (1) where a statute or ordinance imposes a specific duty to keep the

       adjoining sidewalk in good repair; (2) where the landowner affirmatively
       creates or negligently maintains the defective or dangerous condition; or (3)

       where the owner negligently permits the defective condition to exist for a

       private use or benefit.

       {¶12} As to the first exception, the instant matter, like Feorene, involves Section

903.10 of the Lakewood Codified Ordinances, which provides in pertinent part that

       [t]he property owner whose property abuts any sidewalk shall be primarily
       responsible for the repair and maintenance of such sidewalk * * * [and] any
       hole or defect that is a tripping hazard or that is capable of causing injury, *
       * * shall be repaired by the abutting property owner within a reasonable
       period of time from which the property owner should have known the
       necessity of such repair through the exercise of due diligence, or within
       such time as may be determined as reasonable [by the city] * * * (2) [t]he
       failure of a property owner to reasonably repair such defect * * * shall be
       considered a negligent act as a matter of law, and the property owner shall
       be liable for any injury resulting from such defect.

       {¶13} This ordinance expressly obligates the landowner to maintain the sidewalk

in front of his property so that it is free from conditions that have a potential to cause

injury and makes him liable for injuries resulting from the failure to do so if the

municipality has provided the owner with prior notice of its violation.

       {¶14} In this matter, the city did not issue Drosos a citation for the sidewalk until

well after Kelly had fallen, so the first exception to the general rule of no liability is

inapplicable. Feorene at ¶ 12-13. Accordingly, the trial court properly determined that

Kelly failed to demonstrate the existence of a genuine issue of material fact as to whether

Drosos is liable under Section 903.10 of the Lakewood Codified Ordinances. Therefore,

the first assignment of error is without merit.
       {¶15} Turning to the remaining exceptions to the general rule, the Feorene court

explained that the plaintiff must demonstrate that the defendant affirmatively created or

negligently maintained the defective sidewalk, or that the defendant negligently permitted

the defective condition to exist for a private use or benefit.      In affirming the award of

summary judgment to the defendant, the Feorene court held that plaintiff’s evidence was

insufficient to create a genuine issue of material fact for trial. The court stated:

       Feorene does not allege that Barney created the defective sidewalk

       condition, but instead argues that Barney owed a duty to maintain his

       property to prevent a foreseeable injury that might occur on the adjoining

       property.

       ***

       Feorene offers conclusory statements that Barney had actual or constructive
       notice of the sidewalk defect. However, she offers nothing to suggest that
       Barney created the sidewalk deviation. Furthermore, nothing in the record
       suggests that Barney knew of the sidewalk defect, and Baran’s affidavit
       stating that no one at the office had knowledge of any problem with the
       sidewalk stands unrebutted. Conclusory allegations alone are insufficient
       to overcome a motion for summary judgment that is properly supported.

       {¶16} In this matter, however, Kelly has presented an affidavit from a nearby

property owner, Lillian Prijatel, who averred as follows:

       3. As a property manager, it is my responsibility to inspect my property
       where I work and make sure it is maintained and safe inside as well as
       outside. This includes the public area sidewalk.

       4. Since around * * * 2005, I noticed the condition of the sidewalk and
       brick pavers in front of Pug Mahones in a defective condition. Brick
       pavers were often out of place and very uneven. In addition, the sidewalk
       has a large rise in elevation in excess of two inches since 2005. Attached *
      * * is a photo that shows the sidewalk elevation I observed existed since
      2005.

      5. As a property manager, I was concerned that the condition of the
      sidewalk posed a tripping hazard to people walking through the area. If it
      had been my area of responsibility, I would have seen it was repaired as
      soon as possible.

      {¶17} From the foregoing, we conclude that this matter is distinguishable from this

court’s analysis of the second and third exceptions to the general no-duty rule as

presented in Feorene, 8th Dist. No. 97753, 2012-Ohio-3461. In this matter, Kelly has

presented evidence to create a genuine issue of material fact as to whether a substantial

defect has existed since 2005, and that it presented a foreseeable danger to pedestrians.

Kelly’s evidence created a genuine issue of material fact as to whether Drosos negligently

maintained the premises. Accordingly, the second assignment of error is well taken.

      {¶18} Judgment reversed and remanded.

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

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this judgment into

execution.



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

the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE

MELODY J. STEWART, A.J., and
PATRICIA A. BLACKMON, J., CONCUR
