[Cite as Nicholas v. Lake Cty., 2013-Ohio-4294.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


NORMA NICHOLAS, et al.,                            :    OPINION

                 Plaintiffs-Appellees,             :
                                                        CASE NO. 2012-L-140
        - vs -                                     :

LAKE COUNTY JUVENILE COURT,                        :

                 Defendant,

LAKE COUNTY,                                       :

                 Defendant-Appellant.              :


Civil Appeal from the Lake County Court of Common Pleas, Case No. 11 CV 003182.

Judgment: Affirmed.


William J. Novak and Scott D. Perlmuter, Novak Pavlik Deliberato, L.L.P., Tower City
Center, Skylight Office Tower, 1660 West Second Street, Suite 950, Cleveland, OH
44113-1498 (For Plaintiffs-Appellees).

Richard A. Williams and Susan S.R. Petro, 338 South High Street, 2nd Floor,
Columbus, OH 43215 (For Defendant-Appellant).


COLLEEN MARY O’TOOLE, J.

        {¶1}     Appellant, Lake County, appeals from the December 4, 2012 judgment of

the Lake County Court of Common Pleas, denying its motion for summary judgment on

the basis of governmental immunity.
      {¶2}   On August 11, 2010, appellee Norma Nicholas, stepped off a sidewalk

near the entrance to the Lake County Juvenile Court and suffered significant injuries.

During a break in proceedings in which she was a potential witness, Mrs. Nicholas went

outside with her daughter, daughter-in-law, and grandchildren to smoke a cigarette and

call her husband, appellee Dana Nicholas. She was on a sidewalk at the top of a set of

concrete steps going down to a lower parking lot, approximately 50 to 75 feet from the

entrance to the building. After noticing her four-year-old granddaughter running toward

the lower parking lot, Mrs. Nicholas pivoted right to call the child back. She stepped off

the sidewalk with her left foot in order to run after her granddaughter. There was a drop

off of more than one foot from the sidewalk to the ground which she did not notice, as

the area was obscured by tall grass. Mrs. Nicholas’s left foot dropped down and caught

in the underside of the concrete sidewalk.      She fell, fractured her left ankle, right

humerus, and a rib.       Mrs. Nicholas underwent surgery for her ankle and had an

extended hospital stay.

      {¶3}   According to Charles Klco, a Lake County building and grounds

department supervisor, it was foreseeable that someone could accidentally step off the

side of the walkway into the area at issue.      Mr. Klco stated in his deposition that

“because [of] the washout,” rift-raft could be put in to “stop water from flowing

underneath the concrete” and “preventing any further wash away from that area.” Thus,

after Mrs. Nicholas’s fall and injury, Lake County repaired the area by laying stone. Mr.

Klco termed this repair a “normal maintenance” issue.




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       {¶4}    Thereafter, on November 29, 2011, the Nicholases filed a complaint for

negligence against the Lake County Juvenile Court and Lake County.1 The complaint

alleged that a defective condition existed on the grounds of the Lake County Juvenile

Court, which caused Mrs. Nicholas to fall and sustain severe and permanent physical

injuries as well as pain and suffering. The complaint further alleged that Mr. Nicholas,

as Norma’s husband, suffered a loss of consortium and services as a result of his wife’s

injuries.   The Lake County Juvenile Court and Lake County filed an answer on

December 19, 2011.

       {¶5}    On July 12, 2012, Lake County filed a motion for summary judgment

asserting, inter alia, that it was entitled to sovereign immunity pursuant to R.C. Chapter

2744. The Nicholases filed an opposition the following month, to which Lake County

filed a reply in support of its motion for summary judgment.

       {¶6}    On December 4, 2012, the trial court denied Lake County’s motion for

summary judgment, holding that it was not entitled to sovereign immunity. Lake County

filed a timely appeal asserting the following assignment of error:

       {¶7}    “The trial court erred in determining that Lake County was not entitled to

summary judgment on the issue of sovereign immunity.”

       {¶8}    Under its sole assignment, Lake County argues that the trial court erred in

denying its motion for summary judgment and asserts the following issues: (1) the

December 4, 2012 judgment is final and appealable as to the denial of statutory tort

immunity under R.C. Chapter 2744; (2) construction and maintenance of courthouse

grounds are governmental functions; (3) it is immune from liability because no exception


1. The Nicholases later voluntarily dismissed the Lake County Juvenile Court and it is not a named party
to this appeal.


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to the general grant of immunity applies; (4) it is immune from liability because one or

more of the R.C. 2744.03(A) defenses apply; and (5) the trial court relied on inapposite

case law.

      {¶9}   “‘Pursuant to Civ.R. 56(C), summary judgment is appropriate when there

is no genuine issue of material fact and the moving party is entitled to judgment as a

matter of law.’ Holik v. Richards, 11th Dist. No. 2005-A-0006, 2006-Ohio-2644, ¶12,

citing Dresher v. Burt, 75 Ohio St.3d 280, 293, * * * (1996). ‘In addition, it must appear

from the evidence and stipulations that reasonable minds can come to only one

conclusion, which is adverse to the nonmoving party.’ Id. citing Civ.R. 56(C). Further,

the standard in which we review the granting of a motion for summary judgment is de

novo. Id. citing Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, * * * (1996).

      {¶10} “Accordingly, ‘(s)ummary judgment may not be granted until the moving

party sufficiently demonstrates the absence of a genuine issue of material fact. The

moving party bears the initial burden of informing the trial court of the basis for the

motion and identifying those portions of the record which demonstrate the absence of a

genuine issue of fact on a material element of the nonmoving party’s claim.’ Brunstetter

v. Keating, 11th Dist. No. 2002-T-0057, 2003-Ohio-3270, ¶12, citing Dresher at 292.

‘Once the moving party meets the initial burden, the nonmoving party must then set

forth specific facts demonstrating that a genuine issue of material fact does exist that

must be preserved for trial, and if the nonmoving party does not so respond, summary

judgment, if appropriate, shall be entered against the nonmoving party.’        Id., citing

Dresher at 293.




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         {¶11} “* * *

         {¶12} “* * *

         {¶13} “Since summary judgment denies the party his or her ‘day in court’ it is not

to be viewed lightly as docket control or as a ‘little trial.’ The jurisprudence of summary

judgment standards has placed burdens on both the moving and the nonmoving party.

In Dresher v. Burt, the Supreme Court of Ohio held that the moving party seeking

summary judgment bears the initial burden of informing the trial court of the basis for the

motion and identifying those portions of the record before the trial court that

demonstrate the absence of a genuine issue of fact on a material element of the

nonmoving party’s claim. The evidence must be in the record or the motion cannot

succeed. The moving party cannot discharge its initial burden under Civ.R. 56 simply

by making a conclusory assertion that the nonmoving party has no evidence to prove its

case but must be able to specifically point to some evidence of the type listed in Civ.R.

56(C) that affirmatively demonstrates that the nonmoving party has no evidence to

support the nonmoving party’s claims.       If the moving party fails to satisfy its initial

burden, the motion for summary judgment must be denied. If the moving party has

satisfied its initial burden, the nonmoving party has a reciprocal burden outlined in the

last sentence of Civ.R. 56(E) to set forth specific facts showing there is a genuine issue

for trial. If the nonmoving party fails to do so, summary judgment, if appropriate shall be

entered against the nonmoving party based on the principles that have been firmly

established in Ohio for quite some time in Mitseff v. Wheeler (1988), 38 Ohio St.3d 112,

* * *.




                                             5
       {¶14} “The court in Dresher went on to say that paragraph three of the syllabus

in Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, * * *, * * * is too

broad and fails to account for the burden Civ.R. 56 places upon a moving party. The

court, therefore, limited paragraph three of the syllabus in Wing to bring it into

conformity with Mitseff. (Emphasis added.)

       {¶15} “The Supreme Court in Dresher went on to hold that when neither the

moving nor nonmoving party provides evidentiary materials demonstrating that there are

no material facts in dispute, the moving party is not entitled to a judgment as a matter of

law as the moving party bears the initial responsibility of informing the trial court of the

basis for the motion, ‘and identifying those portions of the record which demonstrate the

absence of a genuine issue of fact on a material element of the nonmoving party’s

claim.’ Id. at 276. (Emphasis added.)” (Emphasis sic.) (Parallel citations omitted.)

Welch v. Ziccarelli, 11th Dist. Lake No. 2006-L-229, 2007-Ohio-4374, ¶36-37, 40-42.

       {¶16} We agree with Lake County’s first issue that the December 4, 2012

judgment is a final, appealable order as to the denial of statutory tort immunity under

R.C. Chapter 2744. However, as addressed below, we disagree with Lake County’s

remaining four issues.

       {¶17} R.C. Chapter 2744 sets forth a three-tiered analysis for determining

whether a political subdivision is immune from liability for injury or loss to property. See

Elston v. Howland Local Schools, 113 Ohio St.3d 314, 2007-Ohio-2070, ¶10, citing

Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 556 (2000).




                                             6
       {¶18} The first tier provides a general grant of immunity, stating that “a political

subdivision is not liable in damages 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 in connection with a governmental or proprietary

function.” R.C. 2744.02(A)(1).

       {¶19} In this case, Lake County is a political subdivision as defined in R.C.

2744.01(F) and “[t]he construction, reconstruction, repair, renovation, maintenance, and

operation of buildings that are used in connection with the performance of a

governmental function, including, but not limited to, office buildings and courthouses[,]”

are governmental functions pursuant to R.C. 2744.01(C)(2)(g). Therefore, the general

grant of immunity contained in R.C. 2744.02(A)(1) applies in the instant matter. Thus,

Lake County is immune from liability unless an exception to immunity exists.

       {¶20} “The second tier in an immunity analysis focuses on the exceptions to

immunity located in R.C. 2744.02(B).” Elston, supra, at ¶11. Applicable here is the

exception found in R.C. 2744.02(B)(4), providing that “political subdivisions are liable for

injury, death, or loss to person or property that is caused by the negligence of their

employees and that occurs within or on the grounds of, and is due to physical defects

within or on the grounds of, buildings that are used in connection with the performance

of a governmental function, including, but not limited to, office buildings and

courthouses[.]”

       {¶21} Thus, to trigger the immunity exception under R.C. 2744.02(B)(4), a

plaintiff must demonstrate that his or her injury was caused by the negligence of a

political subdivision employee and that the injury was due to a physical defect. See,




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e.g., Dunfee v. Oberlin School Dist., 9th Dist. Lorain No. 08CA009497, 2009-Ohio-3406,

¶13. In the context of summary judgment, a party raising an immunity defense must

present evidence tending to prove the underlying facts upon which the defense is

based. Evans v. S. Ohio Med. Ctr., 103 Ohio App.3d 250, 255 (4th Dist.1995). “To

establish actionable negligence, one must show in addition to the existence of a duty, a

breach of that duty and injury resulting proximately therefrom.” Mussivand v. David, 45

Ohio St.3d 314, 318 (1989).      “The existence of a duty in a negligence action is a

question of law for the court to determine.” Id.

       {¶22} The allegations contained in the Nicholases complaint match the provision

under R.C. 2744.02(B)(4) because a claim sounding in negligence is asserted against

Lake County, arising from an injury due to a physical defect that occurred on the

grounds of a courthouse used in connection with the performance of a governmental

function.

       {¶23} Lake County alleges that the hole and jagged edge of concrete which led

to Mrs. Nicholas’s injuries do not constitute a “physical defect” within the meaning of

R.C. 2744.02(B)(4). Although the term “physical defect” is not defined in the statute,

prevailing authority holds that a “physical defect” is a “perceivable imperfection that

diminishes the worth or utility of the object at issue.” See Hamrick v. Bryan City School

Dist., 6th Dist. Williams No. WM-10-014, 2011-Ohio-2572, ¶28.

       {¶24} Lake County also contends that the hole was an intentional condition of

the property. However, Klco indicated that the area at issue was foreseeably traversed

by pedestrians on the property and that Lake County had to repair the washout. Thus, it

is illogical that county resources would be wasted to repair an “intentional” condition.




                                             8
       {¶25} The Nicholases provided evidence that the area adjacent to and under the

sidewalk where Mrs. Nicholas fell was apparently washed out, causing a drop off of

more than one foot from the sidewalk. As stated, Mrs. Nicholas’s left foot dropped down

and caught in the underside of the concrete sidewalk. She did not notice the hole

because the area was obscured by tall grass.

       {¶26} The photographs in the record reveal the “washout.” According to Mr.

Klco, it was foreseeable that someone, like Mrs. Nicholas, could accidentally step off the

sidewalk into the area at issue. Mr. Klco stated that “because [of] the washout,” rift-raft

could be put in to “stop water from flowing underneath the concrete” and “preventing

any further wash away from that area.” Thus, after Mrs. Nicholas’s fall and injury, Lake

County repaired the area by laying stone, which goes against Lake County’s theory that

the hole was an “intentional condition.”

       {¶27} Negligence was established in this case, as Mrs. Nicholas’ injuries

proximately resulted from Lake County’s breach of duty to make repairs to the hole prior

to her fall. Based on the facts presented, the hole at issue was a “physical defect,”

thereby removing the cloak of immunity from Lake County under R.C. 2744.02(B)(4).

See e.g. Hall v. Fort Frye Loc. School Dist. Bd. of Edn., 111 Ohio App.3d 690 (4th

Dist.1996) (holding that a depressed area in a school’s football field, caused by a

recessed sprinkler head and surrounding erosion, fell within the definition of a “physical

defect” under R.C. 2744.02(B)(4)). Construing the foregoing evidence in the nonmoving

party’s favor, the exception to immunity under R.C. 2744.02(B)(4) applies.

       {¶28} “Finally, in the third tier of the analysis, immunity may be reinstated if a

political subdivision can successfully assert one of the defenses to liability listed in R.C.




                                             9
2744.03.” Elston, supra, at ¶12, citing Cater v. Cleveland, 83 Ohio St.3d 24, 28 (1998).

Lake County claims it is entitled to immunity under R.C. 2744.03(A)(3) and (5), which

state:

         {¶29} “(A) 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:

         {¶30} “* * *

         {¶31} “(3) The political subdivision is immune from liability if the action or failure

to act by the employee involved that gave rise to the claim of liability was within the

discretion of the employee with respect to policy-making, planning, or enforcement

powers by virtue of the duties and responsibilities of the office or position of the

employee.

         {¶32} “* * *

         {¶33} “(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.”

         {¶34} Lake County agrees that, on its face, R.C. 2744.03(A)(3) applies only to

the exercise of discretion with respect to “policy-making, planning, or enforcement

powers.” Applying that section to the case at bar, Lake County alleges that the design,




                                               10
construction, grading, and landscaping of the courthouse grounds, as originally built,

was the result of an exercise of discretion in “planning” which is protected from tort

liability. Stated differently, Lake County claims that the hole where Mrs. Nicholas fell

was not an issue of routine maintenance but rather was part of the original design of the

courthouse’s landscape.     Essentially, this is the same argument that Lake County

already asserted, i.e., that the hole did not constitute a “physical defect,” and which we

previously addressed and rejected.

      {¶35} Again, according to Mr. Klco, “because [of] the washout,” stone was laid to

“stop water from flowing underneath the concrete” and “preventing any further wash

away from that area.” He had not noticed the area at issue before Mrs. Nicholas’s fall,

which refutes Lake County’s assertion that the area was part of the original landscape

design. Based on the facts presented, Lake County is not entitled to immunity under

R.C. 2744.03(A)(3), which only extends to “policy-making, planning, or enforcement

powers,” none of which are at issue here.

      {¶36} With respect to R.C. 2744.03(A)(5), Lake County relies on a recent

decision from the Eighth District, Ohio Bell Telephone Co. v. Cleveland, 8th Dist.

Cuyahoga No. 98683, 2013-Ohio-270, for the proposition that the statute protects it

from liability due to its subsequent decision not to use resources to alter the stairway,

modify the adjacent grade, or install a handrail where they intersect with the sidewalk.

In Ohio Bell, city of Cleveland employees caused damage to Ohio Bell’s property in the

course of repairing a water main break. Id. at ¶2. Ohio Bell sought damages resulting

from flooding and included specific allegations of wanton and reckless conduct. Id. The

city of Cleveland filed a motion for summary judgment claiming it was entitled to




                                            11
statutory immunity under R.C. 2744.03(A)(5). Id. at ¶3. The trial court denied the

motion.   Id.   On appeal, the Eighth District affirmed the judgment of the trial court

concluding that the city of Cleveland was not entitled to summary judgment on the basis

of sovereign immunity. Id. at ¶21-22. The Eighth District held that genuine issues of

material fact existed as to whether the discretion to immediately respond to the

emergency situation was exercised in a wanton or reckless manner. Id. at ¶16.

      {¶37} Unlike the plaintiff in Ohio Bell, the Nicholases do not allege that Lake

County acted with “malicious purpose, in bad faith, or in a wanton or reckless manner.”

Looking to the issue involving the repair work later done to the area, we determine a

repair within or on the grounds of a building falls within routine maintenance and is not a

discretionary act as contemplated under R.C. 2744.03(A)(5). Again, Mr. Klco stated

that the repair work later done to remedy the area where Mrs. Nicholas fell and was

injured constituted “normal maintenance.” This court has held that routine or normal

maintenance does not invoke immunity under R.C. 2744.03(A)(5).           See Johnson v.

Ashtabula Cty. Joint Vocational School, 11th Dist. Ashtabula No. 2010-A-0003, 2010-

Ohio-3054, ¶41-43; see also Hall, supra, at 702; Perkins v. Norwood City Schools, 85

Ohio St.3d 191, 193 (1999).

      {¶38} We fail to see where the trial court applied inapposite law and we disagree

with Lake County that the court reached the wrong decision. Rather, we determine that

the trial court properly concluded that Lake County is not entitled to summary judgment

on the issue of sovereign immunity.




                                            12
      {¶39} For the foregoing reasons, Lake County’s sole assignment of error is not

well-taken. The judgment of the Lake County Court of Common Pleas is affirmed. It is

ordered that Lake County is assessed costs herein taxed. The court finds there were

reasonable grounds for this appeal.



CYNTHIA WESTCOTT RICE, J.,

THOMAS R. WRIGHT, J.,

concur.




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