[Cite as Puffenberger v. Cleveland, 2013-Ohio-4479.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 99660



                             JAMES PUFFENBERGER

                                                             PLAINTIFF-APPELLANT

                                                       vs.

                        CITY OF CLEVELAND, ET AL.
                                                             DEFENDANTS-APPELLEES



                                           JUDGMENT:
                                            AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-783768

        BEFORE: Stewart, A.J., Jones, J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED:                            October 10, 2013
ATTORNEYS FOR APPELLANT

Theresa M. Bratton
Christina J. Marshall
Matthew C. O’Connell
Sutter O’Connell Co., L.P.A.
3600 Erieview Tower
1301 E. 9th Street
Cleveland, OH 44114



ATTORNEYS FOR APPELLEES

Barbara A. Langhenry
Director of Law

BY: Jerome A. Payne, Jr.
Assistant Director of Law
City Hall — Law Department
601 Lakeside Avenue, Suite 106
Cleveland, OH 44114
MELODY J. STEWART, A.J.:

       {¶1} This case came to be heard upon the accelerated calendar pursuant to App.R.

11.1 and Loc.R. 11.1.

       {¶2} Plaintiff-appellant James Puffenberger filed suit against the city of Cleveland

after sustaining injuries as a result of stepping on an unsecured manhole cover. The trial

court granted summary judgment in favor of the city finding that it is immune from

liability. We affirm the decision of the trial court.

       {¶3} On May 31, 2010, Puffenberger was walking home after attending a

Memorial Day parade when he stepped onto a covered manhole located on a tree lawn on

Lakeshore Boulevard. The cover gave way, flipping up on one side, and Puffenberger

fell through the hole up to his chest. He was able to climb out of the hole with the

assistance of his companions; however, he sustained injuries to his knee that eventually

required surgery.

       {¶4} The manhole in question is serviced by the city, and each manhole the city

services has a meter assigned to it. The meter number associated with the manhole

relevant to this case is 930009579. Prior to Puffenberger’s fall, the manhole was last

serviced by the city on March 31, 2010.

       {¶5} On appeal, Puffenberger asserts that summary judgment was improper

because a genuine issue of fact remains as to whether the city’s maintenance of the

manhole was negligent and created a hazardous condition that caused his injuries.
       {¶6} An appellate court reviews a trial court’s decision granting summary

judgment de novo. Huntington Natl. Bank v. Blount, 8th Dist. Cuyahoga No. 98514,

2013-Ohio-3128,  10, citing Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671

N.E.2d 241 (1996). Summary judgment is proper where the movant has shown that (1)

there is no genuine issue of material fact; (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 when viewing evidence in favor of the nonmoving party, and that

conclusion is adverse to the nonmoving party. Grafton at  105.

       {¶7} Chapter 2744 of the Revised Code sets forth a three-tier analysis for

determining whether a political subdivision is immune from liability.           Under R.C.

2744.02(A)(1), a political subdivision is not liable for injury, death, or loss to persons or

property caused by an act or omission of its employees or agents in connection with a

governmental or proprietary function. R.C. 2744.02(B), however, lists five exceptions to

the general immunity rule. If one or more exceptions apply, the third tier of analysis

requires a determination of whether immunity may be reinstated because a defense

applies. R.C. 2744.03.

       {¶8} Puffenberger argues that under the circumstances of this case, the city is not

immune from liability because the city negligently maintained the manhole: an exception

to the general immunity rule provided in R.C. 2744.02(B).                Specifically, R.C.

2744.02(B)(2) states:
       Except as otherwise provided in sections 3314.07 and 3746.24 of the
       Revised Code, political subdivisions are liable for injury, death, or loss to
       person or property caused by the negligent performance of acts by their
       employees with respect to proprietary functions of the political
       subdivisions.

However, before R.C. 2744.02(B)(2) will remove a political subdivision’s immunity, a

plaintiff must first establish the elements required to sustain a negligence action and

second, that the negligence arose out of a “proprietary function.” Nelson v. Cleveland,

8th Dist. Cuyahoga No. 98548, 2013-Ohio-493,  16, citing Williams v. Glouster, 4th

Dist. Athens No. 10CA58, 2012-Ohio-1283, 864 N.E.2d 102, ¶ 17.

       {¶9}     Under R.C. 2744.01(G)(2)(d), proprietary functions include “[t]he

maintenance, destruction, operation, and upkeep of a sewer system.”     The city concedes

that the maintenance of the manhole qualifies as a “proprietary function” under the statute

and, therefore, we move on to consider whether Puffenberger has established that the city

was negligent in maintaining the manhole.

       {¶10} “In order to establish negligence, one must show the existence of a duty, a

breach of that duty, and that the breach was the proximate cause of an injury.” Nelson at

 22, citing Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707

(1984). The city argues that there is no evidence to establish that the manhole cover

was unsecured due to any negligent maintenance by its employee and also maintains that

the manhole was not under the exclusive control of the city for months before, and at the

time of, the injury.
       {¶11} Under R.C. 2744.02(B)(2), a plaintiff must show the city employee was

negligent in the performance of his duty to maintain the manhole, not merely that a

hazardous condition existed.     Here, Puffenberger presents no evidence that the city

employee servicing the manhole on March 31, 2010, did so negligently as to create the

hazard. The deposition of the city employee who last serviced the hole stated that he had

no recollection of performing service on this particular manhole. Since the general

public also has access to the manhole, someone other than a city employee could have

tampered with the cover compromising its stability. It is impossible for Puffenberger to

show that in the two months that passed between the date of service and his fall down the

manhole that no additional person or instrumentality came into contact with the manhole,

turning it into a dangerous condition. Therefore, we find that Puffenberger cannot prove

that a city employee negligently performed his duties.

       {¶12} Puffenberger relies on Graves v. E. Cleveland, 8th Dist. Cuyahoga No.

70675, 1997 Ohio App. LEXIS 326 (Jan. 30, 1997), for the proposition that the mere

existence of a hazardous condition by the city is sufficient for a finding of negligence. In

Graves, the plaintiff was injured after he fell into a pothole on a darkened street in the

city of East Cleveland. Id. at  2. He filed suit against the city for failure to maintain its

street and street lighting. The trial court granted summary judgment in favor of East

Cleveland because the court found that the plaintiff failed to show the city created the

defective condition or had actual notice or constructive notice of the condition. Id. at 

3. This court reversed the judgment finding that the plaintiff did have some evidence
that a call was made to the city’s service director concerning the condition of the street.

Id. at  4-5. We also found that a municipality can be held liable under the immunity

exception in R.C. 2744.02(B)(3) for conditions that render a street unsafe for usual and

ordinary modes of travel. Id. at  8.

       {¶13} Puffenberger’s reliance on Graves, however, is misplaced. In contrast to

Graves, here there is no indication that the city was aware of the manhole’s hazardous

condition. In Wilson v. Cleveland, 8th Dist. Cuyahoga No. 98035, 2012-Ohio-4289, this

court specifically held that a “municipal corporation is liable only for negligence in

creating a faulty condition or in failing to repair, remove or guard against defects after

receiving actual or constructive notice of their existence.” Id. at  23, quoting Graves at

 4. See, e.g., Wiley v. Cleveland, 8th Dist. Cuyahoga No. 62543, 1993 Ohio App.

LEXIS 2628 (May 20, 1993) (summary judgment for the city was improper where the

plaintiff produced evidence of construction on the manhole’s cover just prior to the

plaintiff’s injury); Tyler v. Cleveland, 129 Ohio App.3d 441, 717 N.E.2d 1175 (8th

Dist.1998) (summary judgment for the city was improper where the plaintiff provided

affidavits showing recent injuries of other people at the same manhole where the plaintiff

was injured).

      {¶14} In this case, the affidavit of the superintendent of distribution for the city’s

Department of Public Utilities demonstrated that the city was not aware of any complaints

regarding the condition of the manhole. Since there is no evidence of when the manhole

cover became unsecured, how long the hazardous condition existed, and no evidence that
the city had knowledge of the condition, Puffenberger fails to meet his burden in

establishing a negligence claim as an exception to the general rule of immunity.

Summary judgment was proper.

      {¶15} Judgment affirmed.

      It is ordered that appellees recover of appellant their costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas 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.




MELODY J. STEWART, ADMINISTRATIVE JUDGE

LARRY A. JONES, SR., J., and
EILEEN A. GALLAGHER, J., CONCUR
