[Cite as Lakota v. Ashtabula, 2015-Ohio-3413.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                   ASHTABULA COUNTY, OHIO


ROBERT B. LAKOTA, JR.,                           :    OPINION

                 Plaintiff-Appellee,             :
                                                      CASE NO. 2015-A-0010
        - vs -                                   :

CITY OF ASHTABULA, et al.,                       :

                 Defendant-Appellant.            :


Civil Appeal from the Ashtabula County Court of Common Pleas, Case No. 2014 CV
0144.

Judgment: Affirmed.


Christopher J. Carney and Larry S. Klein, Klein & Carney Co., L.P.A., 55 Public
Square, Suite 1200, Cleveland, OH 44113 (For Plaintiff-Appellee).

Michelle J. Sheehan and Riannon A. Ziegler, Reminger Co., LPA, 101 West Prospect
Avenue, Suite 1400, Cleveland, OH 44115 (For Defendant-Appellant).



DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant, the City of Ashtabula, appeals from the Judgment

Entry of the Ashtabula County Court of Common Pleas, denying Ashtabula’s Motion for

Summary Judgment as to the issue of immunity. The issues to be determined in this

case are whether a city is entitled to immunity for an accident that occurs on a public

road that has ongoing repairs and whether a city passes responsibility to monitor a

construction site onto another party when that party performed the construction
pursuant to the direction of the city. For the following reasons, we affirm the decision of

the lower court.

       {¶2}   On February 20, 2014, plaintiff-appellee, Robert B. Lakota, Jr., filed a

Complaint against the City of Ashtabula and Carney & Carney, Inc., dba Roto-Rooter. It

alleged that Lakota was operating his motorcycle on West 9th Street in Ashtabula when

he encountered a portion of the road that “had been excavated and then backfilled with

gravel.”   As he “approached the excavated area * * * his motorcycle went into a

depression in the excavated area which resulted in his being thrown from his

motorcycle” and caused serious injuries to his back and hip. Lakota alleged negligence

for the failure “to perform the construction in a manner which did not create a hazard to

motorists.”

       {¶3}   On March 31, 2014, Ashtabula filed an Answer, in which it raised, inter

alia, the defense of immunity. Roto-Rooter filed its Answer on April 16, 2014.

       {¶4}   Ashtabula filed a Motion for Summary Judgment on October 31, 2014. It

argued that it was immune from the claim, since the repair of the road was a

governmental function and it was not negligent for failing to keep the road in repair.

Ashtabula also asserted that it was not liable for the work of Roto-Rooter, an

independent contractor.

       {¶5}   Lakota filed a December 1, 2014 Response to the Motion, arguing that

there were genuine issues of material fact which precluded the grant of summary

judgment. He asserted that Ashtabula was not immune since it was negligent in failing

to keep public roads in repair, pursuant to R.C. 2744.02(B)(3).          Attached to the

Response was the Affidavit and Report of Choya Hawn, an accident reconstructionist.




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He concluded that “at the time of the crash the roadway [at issue] was in a state of

disrepair.”

        {¶6}   Ashtabula filed a Reply in Support of its Motion for Summary Judgment on

December 30, 2014.

        {¶7}   The following pertinent testimony and evidence were presented through

the summary judgment motions and depositions:

        {¶8}   The accident which gave rise to the present lawsuit occurred in an area of

construction to repair a sinkhole on West 9th Street in Ashtabula.

        {¶9}   James Carney, the Vice President of Carney & Carney, dba Roto-Rooter,

testified that, while performing a job for Ashtabula patching West 9th Street on July 12,

2013, his employee discovered a sinkhole. The road was excavated approximately

seven to nine feet deep, and the cause of the sinkhole, an uncapped line, was repaired.

The hole was then filled with two types of material/limestone. Following this, he drove

by the area approximately twice a day to monitor/inspect the repair, which could not be

paved until the fill had settled. He inspected the hole on July 20, the day before the

accident, and saw no problem. There were two or three cones around the area on that

date.

        {¶10} Christopher Perry, a Roto-Rooter employee, noted that employees,

including himself, checked the repair multiple times after the hole was filled, and gravel

was swept up and added if needed.

        {¶11} William Jepson, the City of Ashtabula Engineer, was supervising the work

of Roto-Rooter on West 9th Street when the sinkhole was discovered.               Jepson

determined this was an emergency and requested that Roto-Rooter repair the sinkhole




                                            3
immediately. He explained that, although different types of fill material were used in the

hole, he believed that they were appropriate for the job. Jepson remained present

during the entirety of that repair. He contacted the Traffic Department to put up “rough

road” signs.   He did not receive any complaints about the repair before Lakota’s

accident.

      {¶12} On July 21, 2013, at around 4 or 5 p.m., Lakota, while driving on West 9th

Street, saw a “rough road” sign and then noticed a “patch”/construction area, six to eight

feet wide, on the road approximately 100 feet away. He slowed his approach and when

he got closer to the repaired area, he “realized there may have been some depth to it”

and “swerved to the right to go around it.” His tire caught on the “edge of the hole,”

blew out, and the motorcycle went airborne. As a result of the accident, the motorcycle

was “unrideable” and Lakota suffered nerve damage and a “crushed disc.”

      {¶13} Kim Brewer, Lakota’s girlfriend, was riding with him at the time of the

accident. She saw the rough road sign ahead of the area where the sinkhole had been

filled. There were no cones there at the time of the accident. Following the accident,

she took pictures of the area and noted that, where the hole had been filled, there was a

depression approximately six to eight inches deep, which Lakota hit.

      {¶14} Ashtabula Patrolman Jay Janek responded to the scene of the accident on

July 21. He did not see any cones at the site of the construction area, but was aware

that there was a warning sign. After the accident, when he saw “a substantial divot

there in the roadway,” he requested a barricade be placed in the area. He described

the “divot” as a “pothole” and noted that the area that had been backfilled had

compacted.




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       {¶15} On January 15, 2015, the trial court issued a Judgment Entry, denying

Ashtabula’s Motion for Summary Judgment. The court held, inter alia, that Ashtabula

was not immune, pursuant to the exception for immunity in R.C. 2744.02(B)(3), relating

to negligent failure to keep public roads in repair, since “the question of the City’s

potential negligence in keeping the public road in repair is a genuine issue of material

fact which remains in dispute.” It held that the issue of constructive notice, whether the

city had a duty to monitor the excavated area, and whether the city was liable for Roto-

Rooter’s negligence were all issues that remained under factual dispute.

       {¶16} Ashtabula timely appeals and raises the following assignment of error:

       {¶17} “The trial court committed reversible error in failing to uphold immunity to

the City of Ashtabula for maintenance and repair of roads.”

       {¶18} Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the

evidence shows “that there is no genuine issue as to any material fact” 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 that

conclusion is adverse to the party against whom the motion for summary judgment is

made, that party being entitled to have the evidence * * * construed most strongly in the

party’s favor.”

       {¶19} A trial court’s decision to grant summary judgment is reviewed by an

appellate court under a de novo standard of review. Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). The same is true regarding the

determination of governmental immunity. Cornelison v. Colosimo, 11th Dist. Trumbull

No. 2009-T-0099, 2010-Ohio-2527, ¶ 30. “A de novo review requires the appellate




                                            5
court to conduct an independent review of the evidence before the trial court without

deference to the trial court’s decision.” (Citation omitted.) Peer v. Sayers, 11th Dist.

Trumbull No. 2011-T-0014, 2011-Ohio-5439, ¶ 27.

       {¶20} Ashtabula raises several issues within its sole assignment of error. First, it

argues that, pursuant to R.C. 2744.02, Ashtabula is immune for the maintenance and

repair of roads. It asserts that the exception to immunity under R.C. 2744.02(B)(3)

relating to negligent failure to keep roads in repair, does not apply to repairs that are

ongoing or in the process of being completed.

       {¶21} Lakota argues that a road on which there are pending repairs does not

constitute a road “in repair,” and, thus, Ashtabula’s negligent actions were not subject to

immunity.

       {¶22} In Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d

781, the Supreme Court of Ohio interpreted the immunity statutes as setting forth a

three-tiered analysis.   First, pursuant to R.C. 2744.02(A)(1), a political subdivision

generally 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.” There is no question that Ashtabula is a political subdivision. “Governmental

functions” include “[t]he regulation of the use of, and the maintenance and repair of,

roads, highways, [and] streets.” R.C. 2744.01(C)(2)(e).

       {¶23} Second, the court must consider whether an exception to that immunity

applies. Specifically at issue in this case is the following exception:




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              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).

       {¶24} “If any of the exceptions to immunity in R.C. 2744.02(B) do apply and no

defense in that section protects the political subdivision from liability, then the third tier

of the analysis requires a court to determine whether any of the defenses in R.C.

2744.03 apply, thereby providing the political subdivision a defense against liability.”

Colbert at ¶ 9.

       {¶25} The issue in dispute is whether the exception in R.C. 2744.02(B)(3)

applies. Ashtabula contends that this exception applies when a government entity “fails

to maintain deteriorating public roads – the exception does not apply to roads under

construction or being maintained and repaired.”

       {¶26} Regarding the term “in repair,” although it is not defined in the statute,

several courts have interpreted this phrase in various circumstances.                 “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.’” Todd v. Cleveland, 8th Dist. Cuyahoga No. 98333, 2013-Ohio-101, ¶ 15,

citing Heckert v. Patrick, 15 Ohio St.3d 402, 406, 473 N.E.2d 1204 (1984). The “in




                                              7
repair” language contained in R.C. 2744.02(B)(3) has been interpreted to include “the

obligation to fix holes or crumbling pavement,” including repairing potholes when a road

is deteriorating. (Citation omitted.) Crabtree v. Cook, 196 Ohio App.3d 546, 2011-Ohio-

5612, 964 N.E.2d 473, ¶ 27 (10th Dist.). A city, therefore, has a duty to repair potholes

that deteriorate into a potentially hazardous condition. Todd at ¶ 15.

       {¶27} Ashtabula cites the foregoing case law in support of its claim that it is

immune for the maintenance and repair of roads, unless there is a failure to repair a

known deteriorating condition, which did not occur here, since the repair was in

progress. However, these cases do not address the issue of whether an ongoing repair

falls under the immunity exception and do not preclude the application of the exception

in such circumstances.    As noted in Todd, the “in repair” language “include[s]” the

repairing of potholes, but Todd does not exclude other circumstances such as ongoing

repairs. Id.

       {¶28} In Bonace v. Springfield Twp., 179 Ohio App.3d 736, 2008-Ohio-6364,

903 N.E.2d 683 (7th Dist.), cited by Ashtabula, it was held that “repair” does not create

a duty “to change allegedly absurd designs such as extreme and unnecessary side

slopes that were constructed (and recently reconstructed) into a road.” Id. at ¶ 29. This

case is inapplicable to the present circumstances, where the issue is not the design of

the road but the condition of the road caused by a sinkhole and an incomplete repair.

       {¶29} Ashtabula also cites Shepard v. Akron, 9th Dist. Summit No. 26266, 2012-

Ohio-4695, for the proposition that the “exception to immunity for failure to repair an

excavation site did not apply.” This, however, is not taken in context. The Shepard

court found that negligence in repairing the road did not apply because “Appellees have




                                            8
failed to produce any evidence that it was negligent in repairing the road.” Id. at ¶ 17.

The issue of whether negligence was proven is different than whether the immunity

exception can apply while a road is being repaired.

       {¶30} While it is correct that Ashtabula was in the process of repairing the

sinkhole and excavated area, it had not completed the repair. The non-permanent

repair had not yet fully remedied the damaged area and, before it was paved over,

created a new problem for motorists, when accepting the testimony on summary

judgment that the gravel used to fill the sinkhole had created a six to eight inch

depression. A repair that causes an additional danger to drivers cannot create a road

that is “in repair.” Both the Engineer, Jepson, and Lakota’s expert stated a six to eight

inch hole does not constitute a road “in good repair.” While there are limited cases

addressing the specific issue of whether the pertinent immunity exception applies when

a road is under construction, it has been held that this is the case. Baker v. Cty. of

Wayne, 2014-Ohio-3529, 17 N.E.3d 639, ¶ 13 (9th Dist.) (where construction “continued

from day-to-day, but had not yet been completed, * * * [i]n the context of the ongoing

construction project, the County could be liable for negligent failure to keep [the road] in

repair under R.C. 2744.02(B)(3)”).

       {¶31} The grant of immunity for “maintenance and repair of roads” advanced by

Ashtabula must be construed in conjunction with the exception for the negligent failure

to keep roads in repair. Ashtabula essentially argues that all maintenance and repair,

as government functions under R.C. 2744.01(C)(2)(e), are subject to immunity. If that

were the case, the exception in question could never apply, since it relates to repair of

the roads. The exceptions to immunity in R.C. 2744.02(B), specifically note that they




                                             9
can apply to government activity that is typically a “governmental function,” the whole

purpose of the exceptions to immunity.

       {¶32} Under Ashtabula’s interpretation, a city could create or allow a dangerous

condition during the repair of a road in disrepair; exactly what the exception to immunity

attempts to prevent. It is hard to imagine why the safety of drivers and the obligation of

the city would not be required during repairs.

       {¶33} There is clearly a factual issue as to whether the road, while construction

was ongoing, was “in repair.” This is the case based on the testimony of Brewer and

Janek regarding the existence of a six to eight inch depression in the gravel and the

testimony of a resident near the construction, Betty Jo Massi, that gravel that had come

loose from the hole was strewn around the area. In the absence of any law to the

contrary, we agree with the trial court’s conclusion that the exception to immunity can

apply when the city negligently fails to keep the road in repair during ongoing

construction.

       {¶34} Ashtabula argues in its second issue that there was no negligent failure to

keep the road in repair since it did not have a duty to monitor the repair site and did not

have the necessary actual or constructive notice of the alleged “depression” leading to

the accident. Wilson v. Cleveland, 2012-Ohio-4289, 979 N.E.2d 356, ¶ 23 (8th Dist.).

       {¶35} While Ashtabula argues that Roto-Rooter, as a contractor, assumed the

duty to monitor the area of the repair, the facts support a conclusion that Ashtabula was

not immune from negligence for failing to ensure that the ongoing construction area was

“in repair.”




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       {¶36} Facts presented upon summary judgment can support a conclusion that

Roto-Rooter was an employee/agent, pursuant to R.C. 2744.01(B) (an employee is “an

* * * agent, [or] employee * * *, whether or not compensated or full-time or part-time,

who is authorized to act and is acting within the scope of the officer’s, agent’s,

employee’s, or servant’s employment for a political subdivision”).        Pursuant to R.C.

2744.02, the city is responsible for the acts of its employees for the purposes of

immunity.

       {¶37} “[A] party is classified as an independent contractor, rather than an

employee or agent, based upon the ability of the political subdivision to control the work

to be performed”, i.e., “[w]hen a party agrees to produce some end product or result

without the other political subdivision having any right to control the method of

accomplishing the specific work/services to be performed.”          Trucco Constr. Co. v.

Fremont, 6th Dist. Sandusky No. S-12-007, 2013-Ohio-415, ¶ 22, citing Councell v.

Douglas, 163 Ohio St. 292, 126 N.E.2d 597 (1955), paragraph one of the syllabus; also

LCD Videography, LLC v. Finomore, 11th Dist. Lake No. 2009-L-147, 2010-Ohio-6571,

¶ 70 (“[t]he principal feature which distinguishes the relationship of employer and

employee from that of employer and independent contractor is the right to control the

means or manner of doing the work”). A city can be liable for failing to alleviate faulty

road conditions if “agents or officers actively created the faulty condition, or * * * it was

otherwise caused and the municipality has actual or constructive notice of its existence.”

Cleveland v. Amato, 123 Ohio St. 575, 576, 176 N.E. 227 (1931).

       {¶38} Jepson, the Ashtabula Engineer, testified that Roto-Rooter performed the

repairs based on his direction and discretion and that he was present during the entire




                                             11
repair process. He helped in obtaining gravel to fill the sinkhole and signage to warn

motorists of the construction area. Carney also testified that Roto-Rooter performed the

job “under the supervision of Mr. Jepson. We wouldn’t make any moves or do anything

until we asked him how he wanted us to proceed.” He noted that it was “his job * * * his

project.”   Jepson gave specific instructions regarding things such as tamping the

materials. Further, while Carney believed Roto-Rooter should monitor the site, there is

no indication that the city requested that this be done. Whether an individual is an

independent contractor is generally a fact specific determination to be made by the trier

of fact. Bostic v. Connor, 37 Ohio St.3d 144, 524 N.E.2d 881 (1988), paragraph one of

the syllabus.   There appears to be at least a genuine issue of material fact as to

whether Roto-Rooter was solely responsible so that Ashtabula could not be found

negligent for the failure to monitor the construction to ensure it did not create a danger

to drivers. Even if Roto-Rooter was not an employee, this does not change the city’s

obligation to not act negligently in keeping roads in repair.

       {¶39} Regarding the issue of whether Ashtabula had notice of the condition that

caused the accident, a genuine issue of material fact as to constructive notice occurs

when the plaintiff sets forth evidence “indicating that (1) the unsafe condition must have

existed in such a manner that it could or should have been discovered, (2) the condition

existed for such a length of time to have been discovered, and (3) if it had been

discovered, it would have created a reasonable apprehension of potential danger * * *.”

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.




                                             12
       {¶40} Here, Ashtabula contends that it was unaware of any six to eight inch

depression in the area of ongoing construction. However, there is at least a genuine

issue of material fact as to whether it had constructive notice. It would appear that

Ashtabula should have or could have discovered the condition, given that it was in the

midst of completing a repair of a very large excavation project to fill a sinkhole. This is

different than a mere pothole on the road of which the city had no knowledge.

Ashtabula, and Jepson specifically, were aware that the sinkhole construction was

unpaved, the repair was unfinished, and that the material used to fill the hole would

settle. This alone was notice of an unsafe condition. There was also testimony that the

quantity of gravel spread around the road that had come from the filled area evidenced

that the depression may have been there for an extended period of time, especially

given Carney’s testimony that it would take more than just a day for a six to eight inch

depression to form. Based on these facts, there is at least a dispute as to whether

Ashtabula had constructive notice in this matter.

       {¶41} In its final argument, Ashtabula contends that, even if the immunity

exception applies, immunity should be reinstated pursuant to R.C. 2744.03’s defenses.

Specifically, Ashtabula argues that it was not liable for damages resulting from the

“exercise of judgment or discretion in determining * * * how to use * * * equipment,

supplies, materials * * * and other resources,” i.e., its decision to use a certain type of fill

to repair the sinkhole. R.C. 2744.03(A)(5).

       {¶42} “It is well founded that a party who fails to raise an issue at the trial court

level waives the issue on appeal.” (Citation omitted.) Fifth Third Bank v. Richards, 11th

Dist. Portage No. 2014-P-0040, 2015-Ohio-638, ¶ 26; State ex rel. Zollner v. Indus.




                                              13
Comm., 66 Ohio St.3d 276, 278, 611 N.E.2d 830 (1993). This argument was not raised

by Ashtabula below, either in its Motion for Summary Judgment or subsequent Reply in

Support. Thus, we decline to address it here.

      {¶43} The sole assignment of error is without merit.

      {¶44} For the foregoing reasons, the judgment of the Ashtabula County Court of

Common Pleas, denying Ashtabula’s Motion for Summary Judgment as to the issue of

immunity, is affirmed. Costs to be taxed against appellant.



THOMAS R. WRIGHT, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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