[Cite as Alicea v. Lorain, 2018-Ohio-2538.]


STATE OF OHIO                     )                      IN THE COURT OF APPEALS
                                  )ss:                   NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

HEATHER ALICEA, et al.                                   C.A. No.   17CA011182

        Appellants

        v.                                               APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
CITY OF LORAIN                                           COURT OF COMMON PLEAS
                                                         COUNTY OF LORAIN, OHIO
        Appellee                                         CASE No.   16CV189839

                                 DECISION AND JOURNAL ENTRY

Dated: June 29, 2018



        TEODOSIO, Judge.

        {¶1}     Plaintiffs-Appellants, Heather Alicea and Ramon Alicea (“the Aliceas”), appeal

from the order of the Lorain County Court of Common Pleas granting summary judgment in

favor of Defendant-Appellee, the City of Lorain (“the City”). This Court affirms.

                                                    I.

        {¶2}     On the night of July 4, 2014, the Aliceas and two of their children attended a

fireworks show in downtown Lorain. While walking home afterward, Ms. Alicea tripped and

fell on a sidewalk abutting Victory Park, injuring her knee and the side of her face. The Aliceas

filed a personal injury complaint against the City of Lorain for negligent maintenance and repair

of the sidewalk, seeking damages for medical expenses, pain and suffering, and loss of

consortium as a result of the injuries sustained.

        {¶3}     The City filed a motion for summary judgment claiming immunity under R.C.

Chapter 2744 because it is a political subdivision, the maintenance and repair of sidewalks is a
                                                 2


governmental – not proprietary – function, and none of the exceptions listed under R.C.

2744.02(B) apply. The Aliceas responded in opposition to summary judgment, disputing the

immunity claim and arguing that the City owed a duty of care to Ms. Alicea, it breached that

duty by failing to properly maintain the sidewalk or warn her of the dangerous condition, and

Ms. Alicea suffered permanent injury as a direct and proximate result of that breach. The trial

court granted summary judgment in favor of the City.

       {¶4}    The Aliceas now appeal from the trial court’s order granting summary judgment

and raise two assignments of error for this Court’s review.

       {¶5}    For ease of analysis, we will consolidate the assignments of error.

                                                 II.

                               ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT
       GRANTED THE MOTION FOR SUMMARY JUDGMENT BY FINDING
       THAT AN EXCEPTION TO POLITICAL SUBDIVISION IMMUNITY UNDER
       [R.C. 2744.02(B)(5) DID NOT APPLY].

                              ASSIGNMENT OF ERROR TWO

       THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT
       GRANTED SUMMARY JUDGMENT AND CONCLUDED THAT CODIFIED
       ORDINANCES OF LORAIN, OHIO, SECTIONS 903.07 AND 521.06 DID
       NOT APPLY.

       {¶6}    In their first and second assignments of error, the Aliceas argue that the trial court

erred in granting summary judgment by finding that the R.C. 2744.02(B)(5) exception to

political-subdivision immunity as well as Lorain Codified Ordinances 903.07 and 521.06 did not

apply in this case. We disagree.

       {¶7}    Appellate review of an award of summary judgment is de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). Summary judgment is appropriate under Civ.R. 56
                                                3


when: (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) viewing the evidence most strongly in favor of

the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is

adverse to the nonmoving party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977),

citing Civ.R. 56(C). A court must view the facts in the light most favorable to the nonmoving

party and must resolve any doubt in favor of the nonmoving party. Murphy v. Reynoldsburg, 65

Ohio St.3d 356, 358-359 (1992). A trial court does not have the liberty to choose among

reasonable inferences in the context of summary judgment, and all competing inferences and

questions of credibility must be resolved in the nonmoving party’s favor. Perez v. Scripps–

Howard Broadcasting Co., 35 Ohio St.3d 215, 218 (1988).

       {¶8}    The Supreme Court of Ohio has set forth the nature of this burden-shifting

paradigm:

       [A] party seeking summary judgment, on the ground that the nonmoving party
       cannot prove its case, bears the initial burden of informing the trial court of the
       basis for the motion, and identifying those portions of the record that demonstrate
       the absence of a genuine issue of material fact on the essential element(s) of the
       nonmoving party’s claims. 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. Rather, the moving party must be able to
       specifically point to some evidence of the type listed in Civ.R. 56(C) which
       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. However, if the
       moving party has satisfied its initial burden, the nonmoving party then has a
       reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that
       there is a genuine issue for trial and, if the nonmovant does not so respond,
       summary judgment, if appropriate, shall be entered against the nonmoving party.

Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996).

       {¶9}    Ohio’s Political Subdivision Tort Liability Act, which governs political

subdivision liability and immunity, is codified in R.C. 2744.01 et seq. McNamara v. City of
                                                 4


Rittman, 125 Ohio App.3d 33, 43 (9th Dist.1998). “In order to determine whether a political

subdivision is immune from liability, we engage in a three-tiered analysis.” Moss v. Lorain Cty.

Bd. of Mental Retardation, 9th Dist. Lorain No. 13CA010335, 2014-Ohio-969, ¶ 10, citing Cater

v. Cleveland, 83 Ohio St.3d 24, 28 (1998). First, “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).       Second, “this

comprehensive immunity can be abrogated pursuant to any of the five exceptions set forth at

R.C. 2744.02(B).” Shalkhauser v. Medina, 148 Ohio App.3d 41, 46 (9th Dist.2002). Third,

“immunity may be restored, and the political subdivision will not be liable, if one of the defenses

enumerated in R.C. 2744.03(A) applies.” Moss at ¶ 10.

       {¶10} It is undisputed in this case that the City is a political subdivision. See Wolford v.

Sanchez, 9th Dist. Lorain No. 05CA008674, 2005-Ohio-6992, ¶ 28. See also R.C. 2744.01(F)

(defining “political subdivision.”). Moreover, the definition of “governmental function” includes

the maintenance and repair of sidewalks. R.C. 2744.01(C)(2)(e); Hahn v. Redmond, 9th Dist.

Summit No. 23491, 2008-Ohio-5002, ¶ 16. The City is therefore immune from liability for

injuries or loss allegedly caused by any act or omission of the City or an employee of the City in

connection with the maintenance and repair of sidewalks unless one of the R.C. 2744.02(B)

exceptions applies.

       {¶11} Although the Aliceas argued at the trial court level that multiple exceptions under

R.C. 2744.02(B) applied in this case, they only argue on appeal that the specific exception

provided for under R.C. 2744.02(B)(5) applies. Pursuant to R.C. 2744.02(B)(5):

       [A] political subdivision is liable in damages in a civil action for injury, death, or
       loss to person or property allegedly caused by an act or omission of the political
                                                5


       subdivision or of any of its employees in connection with a governmental or
       proprietary function * * * when civil liability is expressly imposed upon the
       political subdivision by a section of the Revised Code * * *. Civil liability shall
       not be construed to exist under another section of the Revised Code merely
       because that section imposes a responsibility or mandatory duty upon a political
       subdivision, because that section provides for a criminal penalty, because of a
       general authorization in that section that a political subdivision may sue and be
       sued, or because that section uses the term “shall” in a provision pertaining to a
       political subdivision.

The Aliceas argued that R.C. 723.011 “provides the City with the opportunity to impose such

liability” because it states: “The legislative authority of a municipal corporation * * * may

require, by ordinance, * * * that the owners and occupants of abutting lots and lands shall keep

the sidewalks, curbs, and gutters in repair and free from snow or any nuisance.” They further

argued that the City took action to impose such liability by enacting Lorain Codified Ordinances

521.06 and 903.07. Pursuant to Lorain Codified Ordinances 521.06, “[n]o owner or occupant of

abutting lands shall fail to keep the sidewalks, curbs or gutters in repair and free from snow, ice

or any nuisance. * * * Whoever violates this section is guilty of a minor misdemeanor.”

Pursuant to Lorain Codified Ordinances 903.07:

       All owners whose property abuts upon sidewalks shall keep such sidewalks in
       good repair and free from defects and other obstructions or dangerous conditions.
       The ground between the walk and street curb or gutter shall be kept graded so that
       water will drain from sidewalks. If the sidewalks become defective, dangerous or
       obstructed in any way, the Director of Public Service may proceed to remove the
       defects, dangerous conditions or obstructions and grade the areas between the
       walk and curb so that water will drain from the walks.

       {¶12} The trial court found that the R.C. 2744.02(B)(5) exception and Lorain Codified

Ordinances 521.06 and 903.07 do not apply to the facts of this case. The court stated that the

ordinances allow the City to repair sidewalks and pass the costs onto an abutting homeowner.

However, the property owner in this case is the City, not a private landowner, and the City is

immune from issues or negligence relating to the maintenance of sidewalks. Furthermore, the
                                                6


court noted that R.C. 2744.02(B)(5) states civil liability shall not be construed to exist merely

because another Revised Code section imposes a responsibility or mandatory duty upon a

political subdivision. R.C. 723.011 provides that the City may require owners and occupants to

keep sidewalks in repair, and Lorain Codified Ordinances 903.07 provides that the Director of

Public Service may proceed to remove the defects, dangerous conditions, or obstructions. Thus,

the court determined that R.C. 723.011 and Lorain Codified Ordinances 903.07 are not couched

in mandatory terms and do not place a mandatory duty upon the City.

       {¶13} We conclude that the exception contained within R.C. 2744.02(B)(5) does not

apply when another statute such as R.C. 723.011 simply provides a political subdivision with the

“opportunity to impose” civil liability, as the Aliceas have argued. Instead, the plain language of

R.C. 2744.02(B)(5) requires the statute to “expressly impose” civil liability upon the political

subdivision. R.C. 723.011 does not expressly impose civil liability, but instead simply provides

that the legislative authority “may require” owners and occupants of abutting properties to keep

the sidewalks in repair and free from snow or any nuisance.           R.C. 2744.02(B)(5) further

elucidates that civil liability shall not be construed to exist merely: (1) because the statute

imposes a responsibility or mandatory duty upon a political subdivision, (2) because that section

provides for a criminal penalty, (3) because of a general authorization in that section that the

political subdivision may sue and be sued, or (4) because that section uses the term “shall” in a

provision pertaining to a political subdivision. Although Lorain Codified Ordinances 521.06 and

903.07 may have been enacted pursuant to R.C. 723.011, neither ordinance expressly imposes

civil liability and, based on the plain language of R.C. 2744.02(B)(5), we will not construe civil

liability to exist merely because one ordinance provides for a criminal penalty and uses the word

“shall” while the other imposes a responsibility or duty and uses the word “shall.” Because we
                                                 7


conclude that the R.C. 2744.02(B)(5) exception is inapplicable to the facts of this case and

because the Aliceas have not argued on appeal that any other R.C. 2744.02(B) exception to the

general immunity afforded to the City applies, we need not address the third tier of the analysis.

See Dunfee v. Oberlin, 9th Dist. Lorain No. 08CA009497, 2009-Ohio-3406, ¶ 12. See also

Davis v. City of Akron, 9th Dist. Summit No. 22428, 2005-Ohio-3629, ¶ 11.

       {¶14} In construing the evidence in a light most favorable to the Aliceas, we conclude

that no genuine issue of material fact remains. The exception to political-subdivision immunity

under R.C. 2744.02(B)(5) and Lorain Codified Ordinances 521.06 and 903.07 do not apply to the

facts of this case. The City is immune from liability and we therefore conclude that the trial

court did not err in granting summary judgment in this matter.

       {¶15} Accordingly, the Aliceas’ first and second assignments of error are overruled.

                                                III.

       {¶16} The Aliceas’ first and second assignments of error are overruled. The judgment

of the Lorain County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
                                                8


period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellants.




                                                    THOMAS A. TEODOSIO
                                                    FOR THE COURT



SCHAFER, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

JOHN J. GILL, Attorney at Law, for Appellants.

PATRICK D. RILEY and JOSEPH T. LAVECK, Attorneys at Law, for Appellee.
